The Constitutionality of Anti-Abortion License Plates is Up for Debate

Update: On Thursday, June 19, the Supreme Court ruled in a 5-4 majority decision that specialty license plates count as “government speech” and therefore are not protected by the First Amendment. In the case up for debate, Walker v. Texas Division, Sons of Confederate Veterans, the Court ruled in favor of the state of Texas by allowing them to refuse to print license plates bearing the image of a Confederate flag. This Supreme Court decision may have implications on “Choose Life” court cases such as the one taking place in North Carolina.

If you live in one of these 28 states, you may have seen a car somewhere in your neighborhood with a license plate bearing the words “Choose Life.” If you’re one of the many people offended by these license plates, particularly because most of them raise money for anti-abortion organizations, there’s good news: they may not be around for much longer.

On May 22, a New York State appellate court ruled that “Choose Life” license plates are unconstitutional because they are “patently offensive” speech. The Children First Foundation (which is behind the plates in several different states) submitted the design to the N.Y. Department of Motor Vehicles, which runs a program allowing private organizations to submit original designs and split the sale profits with the DMV.

The N.Y. DMV rejected the design, prompting the lawsuit. The DMV argued that it was within its rights to follow its own policy of banning plates on “politically divisive topics,” but The Children First Foundation argued that the decision was a violation of its First Amendment right to free speech, noting that the N.Y. DMV had allowed other “controversial” designs, such as a “Union Yes” plate.

The renewed attention to these plates comes on the heels of a Guttmacher Institute report on “Choose Life” license plates. The report shows that there are currently 28 states that allow these types of plates, and out of those states 15 allow the money raised to go directly to anti-abortion organizations. The report also notes that “reproductive health activists have challenged some of these policies, arguing that it is unconstitutional for a state to endorse one political viewpoint over another.”

Last year, for example, an appellate court in North Carolina upheld a judge’s ruling that the “Choose Life” license plate was unconstitutional because although the DMV allowed the plate, it had rejected designs with messages like “Trust Women” and “Respect Choice.” The judges argued that the disparity between those two decisions constituted a limitation on free speech. Plaintiffs in the North Carolina case wanted to bring it to the Supreme Court, but their plans were put on hold in December 2014 when the court took up a different case involving license plate constitutionality.

Judge Rosemary Pooler, who gave the majority decision in the N.Y. case, opposed “the perception of State endorsement” entwined with the offensive nature of an anti-abortion license plate. North Carolina appellate Judge James A. Wynn thought the problem wasn’t about state involvement but about free speech; regardless of the message, the DMV shouldn’t be able to practice “blatant viewpoint discrimination squarely at odds with the First Amendment.” The number of states with “Choose Life” programs has risen over the years, so these types of cases may soon become more common.

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Photo courtesy of Flickr user Mike Smail licensed under Creative Commons 2.0

Emma Niles is a recent graduate of the University of California, Santa Cruz and an editorial intern at Ms. Follow Emma on Twitter @emmalorinda.


Emma Niles is a recent graduate of the University of California, Santa Cruz and an editorial intern at Ms. Follow Emma on Twitter @emmalorinda.