Kelsey knew something was wrong when the woman who had just administered her pregnancy test began to pray over her. Minutes earlier, the college sophomore had walked into the Pregnancy Resource Clinic in State College, Pennsylvania, just half a mile outside the Penn State campus. She’d been greeted by a friendly, solicitous staff, but had been unnerved by their refusal to even mention abortion as an option. When her test came back negative and the administrator began an invocation for her abstinence, however, her stomach sank. “I left feeling deceived and ashamed,” said Kelsey, who asked that I not publish her last name. “Every girl who’s been in that situation would immediately think to go to the Pregnancy Resource Clinic. How would we know that we were being deceived?”
A lawsuit over that very question, which now stands before the Supreme Court, is the latest chess move in the culture wars that have come to define Donald Trump’s presidency. One of the petitioners in the case, State College Pregnancy Resource Clinic, is an affiliate of Care Net, one of the two major Christian organizations that foster a national network of crisis pregnancy centers, or C.P.C.s. Though their outward appearance is disconcertingly similar, unlike health clinics connected to Planned Parenthood, crisis pregnancy centers are designed with the express purpose of dissuading women from getting abortions, and may not even employ licensed medical professionals. This, according to the state of California, is deceptive. In 2015, lawmakers passed a bill requiring the state’s 200-odd crisis pregnancy centers to post notices informing women about the services they do and don’t offer. The National Institute of Family and Life Advocates (NIFLA), an organization that provides legal services for C.P.C.s, responded by suing California Attorney General Xavier Becerra. On Tuesday, the Supreme Court heard opening arguments from both sides, in what could be a precedent-setting moment across the country for cases involving speech and abortion.
The conservative movement’s ties to crisis pregnancy centers run deep; when he was governor of Indiana, Mike Pence infamously awarded a $3.5 million government contract to a network of centers operating within the state. So it is perhaps no surprise that the Trump administration’s fingerprints are all over NIFLA v. Becerra. NIFLA’s defense is being spearheaded by the Alliance Defending Freedom (A.D.F.), the Christian organization that most recently took the lead in defending a Colorado baker who refused to serve a gay couple. According to The Nation, in 2017 Trump nominated at least four federal judges with A.D.F. ties, and the organization boasts links to at least two of Trump’s top lawyers. His solicitor general, Noel Francisco, was reportedly listed as an “A.D.F.-allied attorney” on two of the organization’s press releases. (The A.D.F. later called the designation a “mistake” and subsequently wiped Francisco’s name from both releases.)
Attorney General Jeff Sessions reportedly joined the A.D.F.’s private strategy session last summer, and according to BuzzFeed News, federal lawyers have approached A.D.F. staff for advice on “at least three occasions.” Sessions met with A.D.F. officials for a series of “listening sessions” last October, during which he professed to be “seeking suggestions regarding the areas of federal protection for religious liberty most in need of clarification or guidance.” Shortly thereafter, the Justice Department issued a directive to government agencies on how to interpret federal religious-liberty protections. “I commend the president for taking another step to honor his campaign promise to make religious liberty his ‘first priority,’” A.D.F. President Mike Farris, who is arguing on behalf of NIFLA before the Supreme Court, said in a statement at the time.
Trump, a thrice-married playboy currently fending off allegations of past affairs with a porn star and a Playboy model, has always been an odd fit for the evangelical voters who helped sweep him into office. The president does not appear to be religious himself—he infamously stumbled over “Two Corinthians” in a campaign speech and has privately joked that Pence “wants to hang” gay people. But he relishes the opportunity to defy what he sees as political correctness by embracing pretensions to godliness in public life. More important, Trump is aware that he is beholden in no small part to the Christian right for his election win, and has made an extra effort to please them while in office. “Evangelical Christians, despite being one of the most politically influential groups in the country, tend to have a persecution complex,” Kimberly Kelly, an expert in evangelical anti-abortion activism, told me. “They invoke a lot of David and Goliath imagery [to communicate] that they, as Christians, are outnumbered and out-resourced, and that they continue to fight against a fallen secular society.” For Trump, it’s a familiar worldview.
The argument being made by the religious right in NIFLA v. Becerra should have a particular resonance for Trump, who may not always understand what he is saying, but will defend to the death his right to say it. The crux of the case is a First Amendment question: in 2015, California passed the Reproductive FACT Act, which mandated that licensed crisis pregnancy centers post a notice describing other family-planning services offered by the state (including abortion), and that unlicensed C.P.C.s disclose their lack of licensed medical staff. NIFLA filed a legal complaint, arguing that the law violated both C.P.C.s’ right to free speech—their right, in this case, not to offer information to which they are opposed—and their right to be exempt from the law based on their religious beliefs. (“The so-called California FACT Act attempts to force pro-life pregnancy resource centers . . . to become abortion referral agencies,” NIFLA president Thomas Glessner said in a statement.) Both a California district court and the Ninth Circuit Court of Appeals ruled against NIFLA, but the Supreme Court accepted the organization’s case on First Amendment grounds. (The religious exemption charge was dropped.) “We’re in a moment where this discrimination frame is being flipped, and conservative groups are trying to use it to their advantage,” Amy Myrick, a staff attorney for the Center for Reproductive Rights, told me. “There’s probably some empowerment of that movement through the administration . . . I think they’re reading the signals and [determining] that they have support.”
On Tuesday, the majority of Supreme Court justices appeared skeptical of the FACT Act. Justice Sonia Sotomayor called part of the law “burdensome and wrong,” and Justice Elena Kagan noted that if the law had been “gerrymandered” to address some providers and not others, that would be a serious problem under the First Amendment. Justice Anthony Kennedy, who’s widely considered a swing vote, said that the law in some cases seemed to impose an “undue burden.” Per NPR:
In purely practical terms, a Supreme Court loss wouldn’t prove devastating to the pro-choice movement. It’s unclear whether the notices that C.P.C.s in California are required to post have had a tangible deterrent effect on the women who use them. In fact, a win for the religious right may even backfire for the pro-life movement. As Kelly told me, pro-life advocates have pushed measures in more than 20 states requiring abortion providers to give women erroneous or slanted information about the possible side effects of abortion, such as so-called “post-abortion syndrome,” which is not recognized by the medical community. If the Supreme Court decides in NIFLA’s favor, pro-choice organizations could use that ruling to challenge those laws on the same constitutional grounds. As Kelly put it, “I’m not sure the plaintiffs have thought this through.”
Still, defenders of women’s rights worry that a pro-NIFLA ruling will embolden the religious right, and the Trump administration, to push the envelope further. “Trump is stirring the pot,” Kelly said. “I’m afraid that’s going to trickle into abortion politics, [and we’ll] just openly say, ‘Well, who cares about the woman? She made a choice to have sex, so she needs to deal with the consequences.’” Myrick was similarly perturbed: “I think they’ve decided that the courts and the constitution are a way to seek vindication, even as cultural winds change.” Already, pro-life activists feel invigorated and supported, at the national level, in a way that they haven’t in at least a decade. And the NIFLA v. Becerra case, in particular, is having a tangible effect on the ground. Kelsey told me that the Pregnancy Resource Clinic in State College has lately ramped up its presence on campus, complete with an outreach event at the Penn State student center in February, in which students were offered information and free candy. Recently, she said, ads for the center appeared on the back of every bathroom stall in the student center’s women’s restroom. “If they’re putting stickers on bathroom stalls,” she said, “they want people to know that they’re here.”