RALEIGH — Republicans in the North Carolina legislature want the nation's highest court to review a ruling barring the state from issuing anti-abortion license plates unless they provide a similar option to pro-abortion rights motorists.
Lawyers for House Speaker Thom Tillis and Senate leader Phil Berger Sr. petitioned the U.S. Supreme Court Monday to decide whether a 2011 law creating a state "Choose Life" license plate is constitutional.
A three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, ruled unanimously in February that the license plate violated the First Amendment because the state refused to offer similar plates for those supporting a woman's right to have an abortion. The law had been challenged by the American Civil Liberties Union.
The office of Democratic state Attorney General Roy Cooper had defended the law in federal court, but declined to appeal the February ruling citing slim chances of prevailing in court.
In an April 30 email to staffers for Tillis and Berger, Chief Deputy Attorney General Grayson Kelley said the appeals court ruling was consistent with case law and recent decisions handed down by other judges. The 4th Circuit struck down a similar South Carolina law in 2004 and the Supreme Court subsequently declined to hear the case.
Kelley said state taxpayers would likely be required to pay any further legal fees incurred by those challenging the law. Rather than continue the fight in court, he urged the legislative leaders to draft new legislation in the current session.
"I encourage you to consider that option, if possible, as an efficient way to resolve the issues raised in this litigation," Kelley wrote.
Instead, Tillis and Berger elected to move ahead on their own with the help of the Alliance Defending Freedom, a conservative legal foundation based in Scottsdale, Arizona.
"Across the country, groups like the ACLU have tried to use the high court's First Amendment speech cases to censor government expression," said Scott Gaylord, an Elon University School of Law professor working with the group. "Such efforts are not only inconsistent with the purpose of the First Amendment, but also with the Supreme Court's government speech precedents."
The "Choose Life" plate was one of 80 specialty tags approved by the General Assembly in 2011. Each "Choose Life" plate would cost $25, with $15 of that going to the Carolina Pregnancy Care Fellowship, an association of nonprofit pregnancy ministries that counsel women against having abortions.
The state has been barred from manufacturing the plates while the ACLU's challenge is pending.