On February 15, California Assemblyman Jesse Gabriel (D) introduced legislation that would require all schools (grades 7-12, as well as postsecondary) to provide “on either side of the pupil identification cards the telephone number for,” among other things, “a sexual or reproductive health hotline.”
The pertinent summary text of Assembly Bill (AB) 624 reads:
Existing law requires a public school, including a charter school, or a private school, that serves pupils in any of grades 7 to 12, inclusive, and that issues pupil identification cards [as well as a public or private institution of higher education that issues student identification cards] to have printed on either side of the pupil identification cards the telephone number for the National Suicide Prevention Lifeline, and authorizes those schools to have printed on either side of the pupil identification cards the Crisis Text Line and a local suicide prevention hotline telephone number…
This bill, commencing July 1, 2020, would require those same schools and postsecondary educational institutions, if they issue pupil or student identification cards, to have printed on the back of those identification cards the telephone numbers for the National Sexual Assault Hotline, the National Domestic Violence Hotline, and a sexual or reproductive health hotline.
You can read the full text of the bill here.
Under this proposed legislation, a private Christian school could be forced to list on the back of their student identification card the number to a “reproductive health” clinic, which is a generally-used euphemism for an abortion clinic.
This has caused a stir among pro-life advocates who don’t want religious or private schools to be directed under the law to promote something they believe to be a moral wrong.
Life News claims that AB 624 is unconstitutional, citing the 2018 Supreme Court decision in National Institute of Family and Life Advocates (NIFLA) v. Becerra, in which the majority “reversed and remanded” the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act.
Under FACT, pro-life crisis pregnancy centers would have “to disseminate a notice to all clients … stating, among other things, that California has public programs that provide immediate free or low-cost access to comprehensive family planning services, prenatal care, and abortion, for eligible women.”
In a concurring opinion to the majority, also cited by Life News, Justice Anthony Kennedy wrote in part:
It does appear that viewpoint discrimination is inherent in the design and structure of this Act. This law 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. For here 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. And the history of the Act’s passage and its underinclusive application suggest a real possibility that these individuals were targeted because of their beliefs…
Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.
AB 624 could be viewed in a similar light and face the same scrutiny that NIFLA v. Becerra did.
In a March 7 press release, Assemblyman Gabriel came out swinging against critics of the proposed legislation:
The attacks on AB 624 are offensive, misleading, and flat out wrong. I’m proud to be a strong supporter of Planned Parenthood and women’s reproductive freedom, but AB 624 is not an effort to promote any particular organization or viewpoint. It’s an effort to ensure that students—especially those facing a challenging situation involving domestic violence, sexual assault, or sexual health—are able to access timely and accurate information that may be essential to their physical or mental health. …
The overreaction and mischaracterization by anti-choice activists is disturbing. It’s alarming how hard they are willing to fight to prevent young people from accessing even basic contact information if it might provide them with the option of learning more about reproductive health.
Gabriel then quoted two “leading experts in constitutional law,” UC Irvine School of Law’s Leah Litman, and Erwin Chemerinsky, the dean of UC Berkeley School of Law, who claimed that the legislation would not violate the constitution.
The Daily Wire spoke with Barry McDonald, professor of constitutional and First Amendment law at Pepperdine University, who drew an important distinction between public and private schools:
Well, it wouldn’t be unconstitutional as to California public schools that might object, since it’s highly doubtful public agencies have any free speech rights – and particularly against requirements of their own state government that authorizes their creation.
As to private schools, I think they’d have a strong case for unconstitutionality under last term’s 5-4 abortion notice ruling of SCOTUS [NIFLA v. Becerra] that basically said [that] when governments compel disclosures or speech other than “traditional health and safety warnings” and certain commercial disclosures, the government has a demanding burden of showing a compelling need for it, and that there is no alternative way for the government to meet that need.
In other words, a private religious school would likely be able to challenge this proposed legislation in court if it were to become law.
However, McDonald did disagree with the manner in which the Supreme Court decided the 5-4 NIFLA v. Becerra case:
I thought it was a somewhat ridiculous ruling by the Court’s conservative wing as it might apply to compelled information disclosures of the sort here (I thought a general balancing of the speaker’s objections against the government interests would have been more appropriate than this sort of strict test), but nonetheless, it is what it is.
I think the reason the conservatives came out as they did was because they felt the liberal California legislature was impermissibly targeting pro-life, Christian pregnancy centers for discriminatory treatment. I do think there was something to this, but I would have based my reasoning on the true concerns versus some misguided notion of compelled speech.
The Daily Wire reached out to Assemblyman Jesse Gabriel for comment, but as of publication, we have not received a reply.