President-elect Joe Biden has announced his intention to nominate Xavier Becerra to be the next Secretary of Health and Human Services. Becerra, currently California’s Attorney General, has a curious history when it comes to recognizing the free speech and conscience rights of his pro-life neighbors.
(I am not going to engage in a debate over who won the election. I think it’s unwise to pretend that Mr. Biden won’t be calling the shots as of Inauguration Day.)
Becerra succeeded Kamala Harris as California AG, after Harris was elected to the U.S. Senate. She is now vice-president-elect.
As Attorney General, Becerra followed Harris’s lead in two cases of particular interest to pro-life Americans.
The NIFLA case
In 2015, California legislators passed a law they dubbed the “Reproductive FACT Act.” It targeted pro-life pregnancy care centers, and their workers and volunteers, by requiring them to to provide information on how to obtain state-funded abortions. There were penalties for noncompliance.
The law prompted a lawsuit from an umbrella organization for several pregnancy care centers, National Institute of Family and Life Advocates (NIFLA). Harris and later Becerra represented California in defending the law.
The lawsuit made it to the Supreme Court, which in 2018’s NIFLA v. Becerra decision sided with NIFLA on a 5-4 vote.
NIFLA defenders summarize the decision
Attorneys with Alliance Defending Freedom represented NIFLA. Writing about the decision, ADF’s Maureen Collins wrote about the effects of the ruling. “Forcing someone to speak against their beliefs not only goes against the freedom of speech, it goes against plain common sense. Under this particular law, the very pregnancy centers dedicated to giving women alternatives to abortion were compelled by the state to advertise for abortion….The Supreme Court’s decision in NIFLA is simple. It protects the free speech of those with the viewpoint that women should have many choices other than state-sponsored abortion.”
Becket, another law firm dedicated to defending religious liberty, filed an amicus brief supporting NIFLA’s position. In a summary of the case, Becket attorneys wrote about the case’s importance. “The First Amendment protects speakers from being punished for advancing viewpoints not shared by the government. On issues as divisive as abortion, it is vital that the government not silence one side of the debate….Private organizations, including those with a religious foundation, must be free to operate in the public square according to their beliefs.”
Center for Medical Progress prosecution
The undercover journalism of David Daleiden, Sandra Merritt, and the Center for Medical Progress project revealed the commerce in fetal body parts carried out by some Planned Parenthood affiliates. In California, that led to prosecution – not of Planned Parenthood, but of Daleiden, who has been fighting criminal charges there since 2016.
The prosecutors: first Kamala Harris, then Xavier Becerra. Daleiden is facing multiple felony counts under California’s illegal-taping law. Undercover journalists, take note. Becerra, with taxpayer dollars, keeps the prosecution going even now, as 2020 draws to a close.
The Thomas More Society is representing Daleiden. Its website provides extensive background on the case as it has developed so far, with no apologies for the tone of zealous advocacy.
Becerra’s nomination as HHS Secretary depends on a confirmation vote to be held in the U.S. Senate in 2021. If the Senate were to tie on Becerra’s nomination, the tie-breaking vote would be cast by none other than Kamala Harris.
Post header image: U.S. Department of Health and Human Services headquarters, Hubert H. Humphrey Building, Washington DC. Photo by Carol M. Highsmith, from the Carol M. Highsmith Archive, Library of Congress, Prints and Photographs Division.