Valentine's Day and Reciprocity re Abortion and NIFLA v. Becerra

Valentine's Day may not be the most pleasant day to mention abortion, but "love" vis-à-vis abortion may have some resonance, so here we are. This Valentine's Day 2018 is also Ash Wednesday, oddly enough, so the somberness of that holy day may make abortion a more appropriate topic. T.S. Eliot's mildly impenetrable Ash Wednesday (1930) says, "...If the lost word is lost, if the spent word is spent/If the unheard, unspoken/Word is unspoken, unheard;/....This is the time of tension between dying and birth", id. Whatever those lines mean (who understands Eliot??), they rather fit with the current Supreme Court case of NIFLA v. Becerra and its issues of compelled speech, or desired silence, about abortion or related issues.

I. Reciprocity and NIFLA

NIFLA, supra, is about California law forcing pro-life pregnancy clinics (often run by religious groups) to post a phone number for county abortion and contraception services (among other "women's health" services), and to inform clinic visitors about any lack of licensed status for the clinic, or lack of a licensed medical provider. The present author filed a brief in NIFLA arguing for a form of "balance", i.e., exempting the clinics from the obligation to post the "abortion number", but not exempting them from having to admit any unlicensed status. Interestingly, the Trump Administration filed a brief arguing for the same things--maybe one of the few times that those people and this author argued for the same positions in the Court (!!!). "As the Solicitor General and I both believe, hak-kaff....."

There is a sort of reciprocity in this balance that the DOJ brief and this author's brief both recommend: the pro-lifers are not made to perform the forced speech of advertising abortion, but they at least have to say who they are, if they are unlicensed. This all resonates with the idea of honesty and disclosure. The clinics' authenticity would be compromised if they had to "love Big Brother" and unwillingly post communications advertising abortion, a practice which they loathe deeply.

But how does it compromise the clinics' authenticity to have them admit their unlicensed status? In a way, it bolsters their authenticity to have them tell the truth. So, reciprocity: the clinics win on one count, but not on the other, and they are upholding/revealing their true identity in both cases.

And love--our favorite Valentine's topic--is a form of reciprocity, as it were, in that it is open and responsive to the humanity of the Other. The position of California is not very "loving" in that it disrespects the clinics' humanity. That is, the State of California could just advertise abortion/contraception services itself, without making the clinics do it. (They're pro-life clinics, after all!)

Conversely, the legal position of the clinics is not very "loving" or respectful, in that the clinics demand to be respected by the State, but the clinics don't want to respect clinic visitors by honestly admitting to those visitors that the clinics may have licensing problems. (There may be some putatively excessive legal requirements for the clinics, such as 48-point type for notices, and having to post in multiple languages; but perhaps some kind of compromise could be reached, leaving in place the imperative to tell visitors, in some fashion, about clinics' unlicensed status.)

As Aretha Franklin once noted, respect may be a good idea, and the more mutual the respect, the better.

II. Reciprocity re Abortion-and-the-Law in General

On a broader level than pro-life pregnancy clinics: Brandi Miller's Huffington Post article The Christian Who Cried Abortionargues for reciprocity re abortion, from a "liberal" point of view:

By siding with candidates that disregard life in every other facet (other than abortion) through their pro-war, pro-violence, pro-militarism and pro-death penalty policies, American Christians reveal not only their lack of care for holistic life politics but a fundamental misunderstanding of the way of Jesus. Conservative Christians are not pro-life, they are simply anti-abortion.

Id. But while Miller has a good point about the hypocrisy or schizophrenia of some "conservative Christians" (who may really be neither conservative nor Christian at heart?) re abortion, the point may also be reversible.

That is, if Christians, or others, are against war, violence, militarism, and the death penalty, then they may have more of a moral right to ask for regulations or restrictions on legal abortion. And, conversely, it might seem hypocritical or schizophrenic for "liberals", "liberal Christians", or "liberal non-Christians" to disregard the possible humanity of the fetus/embryo and still claim to be pro-life just because they take positions which are against war, violence, militarism, and the death penalty. After all, abortion could be considered violence/death penalty against an embryo or fetus, maybe. So, again, reciprocity is key.

Is a "grand bargain" of sorts possible on abortion, whether in NIFLA v. Becerra or more generally? Western European countries often have generous social safety nets but more restrictions on abortion than the U.S. might, see, e.g., Emily Matchar's The Atlantic essay In Liberal Europe, Abortion Laws Come With Their Own Restrictions,

In Western Europe, abortion is viewed as part of a larger conversation about the collective good. The Finnish baby boxes I previously mentioned (government handouts that are provided to all new parents, containing clothes and other baby supplies) speak to the fact that children there are viewed as part of building a successful society. . . .
Paternalistic abortion laws are, perhaps, the flip side of generous government benefits: The government provides amply for the babies you do have, but in return it gets to quiz you about your reproductive choices.

Id. So, in America, a similar result is imaginable (or even desirable), reciprocally combining concern and love for the born (including mothers and infants) with concern and love for the unborn. Valentine's Day seems a good time to mention this.

III. Reciprocity re Masterpiece Cakeshop

One other example of reciprocity re a current Court case pertains to Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, in which reciprocity relates to religious exemptions. Normally, under Employment Division v. Smith,494 U.S. 872 (1990), exemptions are basically forbidden re neutral laws of general applicability: religion might not be an excuse to use peyote or other illegal drugs, say. However, when there is another party that is drawing you into their own religious or ethical ceremony or lifestyle (say, a type of wedding that you do not endorse), then they are arguably trying to exercise freedom of religion/conscience in their own lives while trying to deny you your own corresponding ethical freedom. Otherwise put, there may be a denial of reciprocity.

Thus, in gray-area scenarios like "Does baking a wedding cake constitute participation in a wedding?", it could be best to find a "compromise" solution (e.g., a small fine or damages for a baker who refuses to bake, but no gigantic fine or prison time) that reciprocally respects the humanity of everyone involved. (This may involve a slight relaxation of Smith, supra: emphasis on the word "slight", the relaxation--an "exception that proves the rule"--being large enough to keep Smith sane and credible at the present time, but not large enough to destroy or seriously undercut Smith.)

(...Incidentally, there are rumors that some on the Court might act like cowardly old gits (so to speak) and punt the case back down to the Colorado Civil Rights Commission for them to take care of, i.e., almost inevitably ruling for the same-sex couple at some point, after some bureaucratic paper-shuffling. But it might be more dignified, and courageous, for the Court to issue its own principled ruling, and take the heat for it, rather than letting someone else run with the football. Aren't taxpayers paying the Court to be principled and courageous?)

IV. Conclusion: Loving the Legal (and Other) Challenges of Reciprocity

Abortion is a controversial issue, but, as seen above, some degree of reciprocity, recognizing others' humanity even when you disagree with them, can lead to decent, or decent-as-reasonably-possible, solutions. And since love is more then just flowers, candies, and paper hearts, one hopes that people's Valentine's Day/Ash Wednesday today proves to be of inspiration, whether about NIFLA, Masterpiece, or other cases.

The issues in such cases are often very emotional, burdensome, and confusing, maybe even more confusing than T.S. Eliot, of whom now some more from Ash Wednesday: "Wavering between the profit and the loss/In this brief transit where the dreams cross/The dreamcrossed twilight between birth and dying", id. The entwined and often reciprocal mysteries of love, birth, death, and the law, while hard to understand, though, do entice by their very challenge; and what is life without enticement? --Less fun than it should be, that's for sure. Enjoy.