Hawaii Agrees to Protect Free Speech Rights of Pregnancy Resource Centers

In a little-noticed press release recently, the U.S. Department of Health and Human Services (HHS) announced that its Office for Civil Rights (OCR) had reached a settlement agreement with the State of Hawaii over the issue of compelling pregnancy resource centers (PRCs) to promote abortion.

In 2017, Hawaii attempted to legislatively follow in California’s footsteps by requiring PRCs—whose pro-life mission is to persuade pregnant women who are considering abortion to change their minds—to provide such women with a government-scripted notice promoting abortion. Such a requirement ran directly contrary to the mission, conscience, and preferred message of the PRCs.

California, as you may recall, ended up on the losing end of a similar First Amendment case at the U.S. Supreme Court in 2018 in NIFLA v. Becerra. In that case, California passed a law (known as the FACT Act) that required PRCs to put public notices in their facilities and on their websites promoting the availability of free and low-cost abortion subsidized by the state. In a 5-4 decision, the Supreme Court held that such government-compelled speech violated the free speech rights of California PRCs.

In September 2018, following the NIFLA decision, a Hawaii federal district court permanently blocked Hawaii’s version of the law from being enforced against two PRCs, citing the ruling in the NIFLAcase.

HHS had previously been asked by the two Hawaii PRCs to investigate whether the Hawaii law also violated two pro-life conscience laws passed by Congress, the Weldon and Coats-Snowe Amendments, which prohibit states receiving federal funds from discriminating against entities that don’t offer or promote abortions.

The most recent settlement agreement is the culmination of HHS’s efforts to enforce federal conscience laws, as well as the recognition by Hawaii’s Attorney General that because of the NIFLAdecision, as well as the Hawaii federal court decision, Hawaii’s law was unenforceable anyway.