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Supreme Court’s logic shows no evenhandedness toward abortion clinics

As Justice Stephen Breyer said during oral arguments in a recent California case, “the rule of law embodies evenhandedness … what is sauce for the goose is normally sauce for the gander.”

In essence, in the California case the court deemed the health and safety of pregnant women to be less important than the right to free speech of CPCs, which mostly are unlicensed, unregulated, and shown again and again to disseminate lies about abortion.
REUTERS/Yuri Gripas

In U.S. Supreme Court Justice Anthony Kennedy’s concurring opinion striking down the California Legislature’s law requiring crisis pregnancy centers (CPCs) to inform women of all options available to them, including abortion, he wrote, “The State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these.”

Jane Ahlin
Jane Ahlin

Kennedy also said the law struck down is “a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression.”

On the face of it, his great deference to individual precepts could be seen as laudable. However, as Justice Stephen Breyer said during oral arguments on the case, “the rule of law embodies evenhandedness … what is sauce for the goose is normally sauce for the gander.” 

In Breyer’s words, “if a State can lawfully require a doctor to tell a woman seeking abortion about adoption services, why should it not be able to require a medical counselor to tell a woman seeking prenatal care or other reproductive healthcare about childbirth and abortion services?”

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What Breyer was saying — what the conservative majority on the court ignored — is that evenhandedness has been denied to abortion clinics. In essence, in the California case the court deemed the health and safety of pregnant women to be less important than the right to free speech of CPCs, which mostly are unlicensed, unregulated, and shown again and again to disseminate lies about abortion. Some connect abortion to breast cancer, suicide, or future infertility, connections utterly debunked by many sound scientific studies.

What makes the court’s decision stunningly egregious is that more than two dozen states require medical professionals to say things about abortion that those professionals know are lies. If we used Kennedy’s own words in an evenhanded way, those anti-abortions legislatures require medical professionals “to promote the State’s own preferred message … compel[ling] individuals to contradict their most deeply held beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these.” Actually, for doctors and nurses he would have to work in “medically factual precepts.” 

Given that the U.S. Supreme Court insists states allow CPCs to engage in deception undermining the health of pregnant women under the guise of free speech, Americans must ask why the court allows States to force abortion clinicians to tell their patients state-written lies.

Here’s the rub: As the Supreme Court traffics more and more in right-wing ideology that threatens the reproductive rights of women, statistics about America’s preference for abortion essentially have not changed. According to PEW research the percentage of Americans who favor abortion in “most cases” has hovered around 60 percent since 1995. 

That is a strong majority — although in the judiciary more and more a poorly represented majority. Don’t expect fairness for goose and gander. Goodness, we’re to forget pregnant women have rights.

A writer and columnist from Fargo, North Dakota, Jane Ahlin also has taught English at Minnesota State University Moorhead. She serves on the board of Planned Parenthood of Minnesota, North Dakota, South Dakota.

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