Document Type
Article
Publication Date
2026
ISSN
1534-7909
Publisher
University of Houston Law Center
Language
en-US
Abstract
How does this broader sense of Barnette’s proscription of government from imposing “what shall be orthodox” implicate governmental restrictions on reproductive autonomy? Battles over reproductive freedom centrally implicate objections that government is unconstitutionally imposing a gender orthodoxy. Arguments for a right of personal autonomy embodying an antitotalitarian principle of liberty are arguments for a right to resist governmental imposition of an orthodoxy— for example, an idea about the natural or traditional role of women as mothers together with a view about how best to respect the sanctity of life. Rights to reproductive autonomy, grounded in personal autonomy and equality, are rights to resist governmental imposition of an orthodoxy and to make one’s own decisions fundamentally affecting one’s destiny, identity, or way of life free from compulsion by the state. These arguments, made under both the Due Process Clause and the Equal Protection Clause, but rejected by Dobbs, illustrate the second sense of an anti-orthodoxy principle. Obviously, by overruling Roe v. Wade and Casey, Dobbs rejected such arguments with respect to at least a right, under the U.S. Constitution, to decide whether to terminate a pregnancy. While the nation is stuck with Dobbs for the foreseeable future, arguments made to state courts under state constitutions are a vital way in which proponents of reproductive autonomy are now appealing to liberty, equality, and other constitutional grounds for reproductive rights.10 These arguments also build upon critical understandings of history and tradition: as aspirational principles that are critical of our historical practices that have failed to live up to them. Some state courts have sharply rejected the Dobbs approach to history and tradition and its dismissive treatment of abortion as a gender (and racial) equality issue. As Justice Wecht observed in Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services et al., “the guarantee of reproductive autonomy is a safeguard against tyranny.”11 In state courts, advocates are also challenging restrictive abortion laws by appealing to rights to free exercise of religion, liberty of conscience, and non-establishment of religion—as Professor Jessie Hill explores in this Symposium.
In this essay, I first examine (in Part II) how both supporters and opponents of legal abortion make anti-orthodoxy arguments in both of the senses discussed above. I embrace the arguments that reproductive rights protect persons from imposition of a traditional gender orthodoxy rooted in stereotypes about women’s natural role as mothers. My primary focus, however, is to examine the first sense of Barnette’s proscription of governmental imposition of an orthodoxy by analyzing cases involving crisis pregnancy centers (CPCs), namely, National Institute of Family & Life Associates v. Becerra (NIFLA) and a Massachusetts case pending on appeal, A Woman's Concern, Inc., d/b/a Your Options Medical Centers v. Healy. I do this in Part III. I will argue, contrary to the U.S. Supreme Court in NIFLA and the challengers in Massachusetts, that government is not imposing an orthodoxy in those cases, but is protecting the anti-orthodoxy rights of pregnant persons to make their own decisions about whether to terminate a pregnancy. Government is securing the preconditions for deliberative autonomy by informing them about governmental services available to support their reproductive health care decisions and by protecting them against fraud and deception by CPCs. Further, the public education campaign about CPCs undertaken by the Commonwealth of Massachusetts avoids the supposed constitutional flaws with California’s law identified in NIFLA: the Commonwealth is engaging in its own speech on “public property” and does not compel CPCs to express governmental messages.13
The First Amendment cases surrounding abortion manifest a marked asymmetry between the Court’s invocation of the anti-orthodoxy principle to protect opponents of abortion from governmental regulations and its refusal to apply the same principle to protect providers of abortion from governmental restrictions upon their speech. I discuss the asymmetry in the Court’s First Amendment jurisprudence surrounding abortion. As NIFLA illustrates, the Court robustly protects opponents of legal abortion from what the Court deems an authoritarian government attempting to impose an orthodoxy and stifle the “marketplace of ideas.” Yet it has refused to protect First Amendment rights of providers of legal abortion. Using the example of Massachusetts, I examine how states, post-NIFLA, have attempted to protect the reproductive health of residents through education campaigns about the risks of CPCs—efforts that CPCs have challenged on First Amendment grounds.
Recommended Citation
Linda C. McClain,
Regulating Crisis Pregnancy Centers After NIFLA and Dobbs: Controversies over When Government is Imposing an Orthodoxy about Abortion
,
26
Houston Journal of Health Law & Policy
69
(2026).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/4316
Included in
First Amendment Commons, Health Law and Policy Commons, Law and Gender Commons, Law and Politics Commons, Law and Society Commons
