North Carolina’s effort to offer motorists a “Choose Life” specialty license plate may get another day in court, thanks to the leadership of the North Carolina General Assembly, which has asked the U.S. Supreme Court to weigh in on the legal battle. On July 11, Alliance Defending Freedom (ADF) attorneys representing Senate President Pro Tempore Phil Berger (R-Rockingham) and House Speaker Thom Tillis (R-Mecklenburg) filed a petition with the U.S. Supreme Court, asking it to consider: “Whether the government speech doctrine permits the State of North Carolina to promote its ‘Choose Life’ message through a specialty license plate program over which it exercises complete and effective control without also offering a pro-choice specialty plate.” ADF, along with allied attorney Scott Gaylord, associate professor of law at Elon University, is defending North Carolina’s “Choose Life” license plates.
“We applaud the leadership of the North Carolina General Assembly for intervening and petitioning the U.S. Supreme Court to review the challenge to our state’s ‘Choose Life’ license plates,” said John L. Rustin, president of the North Carolina Family Policy Council. “With approximately 150 specialty license plates currently available to motorists advancing everything from saving sea turtles to square dancing, pro-life North Carolinians deserve the opportunity to purchase a specialty license plate that expresses their support for the sanctity of human life. Additionally, the sale of these plates will help raise funds for groups that not only help save the lives of unborn babies, but offer critical resources to women facing unplanned pregnancies.”
The ACLU of NC filed the lawsuit challenging the constitutionality of the pro-life license plate in September 2011, just months after the General Assembly passed legislation authorizing the sale of 70 additional specialty license plates, including the “Choose Life” plate. The “Choose Life” plate would cost drivers an additional $25 per year, with $15 from the sale of each plate going to the Carolina Pregnancy Care Fellowship (CPCF), a “nonprofit, pro-life organization committed to equip, encourage, and network pregnancy care ministries in North Carolina.” As with many specialty license plates, the law stipulated that at least 300 must be ordered before production could begin, and this request had been met before the court ruled against the plate.
The ACLU argued that the absence of a license plate expressing a “pro-choice” position on abortion represented “viewpoint discrimination” by the state. In December 2012, the U.S. District Court for the Eastern District of North Carolina agreed with the ACLU, prohibiting the State from issuing the “Choose Life” plates. A divided panel of the U.S. Court of Appeals for the Fourth Circuit upheld that ruling in February 2014. According to ADF, the leaders of the North Carolina General Assembly decided to intervene in the lawsuit, after Attorney General Roy Cooper declined to appeal the Fourth Circuit’s ruling to the U.S. Supreme Court.
The ADF petition argues that the Fourth Circuit’s decision conflicts with the U.S. Supreme Court’s 1992 Planned Parenthood v. Casey decision, which upheld the right of states to advance a “profound interest in potential life,” and that it conflicts with a Sixth Circuit Court of Appeals decision in a similar “Choose Life” license plate case.
“In holding that North Carolina cannot offer a ‘Choose Life’ specialty license plate without also offering a ‘Respect Choice’ plate, the Fourth Circuit precluded North Carolina’s ability ‘[t]o promote the State’s profound interest in potential life” through its specialty license plate program,” the petition states, in part. “Under the Fourth Circuit’s analysis, as soon as the North Carolina legislature approves a particular specialty license plate, it also must permit specialty plates expressing all viewpoints relating to the subject matter of that plate-even if those viewpoints contradict its desired message. This requirement, therefore, prevents States from speaking for themselves and saying what they want through their specialty license plate programs…”