Regulating CPCs: Consumer Protection or Affront to Free Speech?
Last April, Shari Plunkett, the founder of First Resort, a San Francisco Bay Area chain of anti-abortion crisis pregnancy centers, sent an e-mail to First Resort followers. “With the closing of five abortion clinics in the Bay Area in March, our call volume has never been higher,” she began. “Women are calling in survival mode, with utter panic in their voices. They are clinging to abortion because it’s the only ‘help’ they know.” She continued, “‘Planned Parenthood has closed’, they tell us, ‘I need an abortion, can you help me?’ ” Of these abortion clinics closing, Plunkett later added, “This is one of the most amazing opportunities we’ve ever had to serve abortion minded women.”
First Resort clinics, of course, do not provide abortions, nor do they refer for them. Indeed, like most crisis pregnancy centers, their primary function is to dissuade pregnant women from choosing abortion. Many crisis pregnancy centers employ deceptive means to lure women into their doors, and offer misleading or inaccurate information about abortion to women once they’re inside. It is this confusion, and the culture of orchestrated deception that accompanies crisis pregnancy centers, that has spurred a number of cities to propose, and sometimes pass, legislation to require crisis pregnancy centers to disclose basic factual information about their services. Anti-abortion advocates assert that such legislation should be thrown out as First Amendment violations and, as some of these ordinances get struck down, it seems some federal judges agree.
* * *
Crisis pregnancy centers are nothing new. The first crisis pregnancy center was established in Hawaii in 1967, by Robert Pearson, after the state repealed its laws criminalizing abortion. “Obviously, we’re fighting Satan,” Pearson said of his anti-abortion work, “A killer, who in this case is the girl who wants to kill her baby, has no right to information that will help her [do that].” Typically associated with Christian charities, these anti-choice organizations received $30 million in federal funds between 2001 and 2005, according to a 2006 report by California Democrat Henry Waxman. CPCs continued to receive millions in federal funds under George W. Bush, to say nothing of state funding through programs like “Choose Life” license plates. Although much of the federal funding for crisis pregnancy centers has been cut under Obama, his National Fatherhood Initiative directs funds toward CPCs, as Sarah Posner has reported.
Today there are estimated to be more than 4,000 CPCs in the United States, dwarfing the estimated 1,800 abortion providers, and the vast majority of these centers attempt to mislead women about the services they provide. Some CPCs employ misleading advertising on billboards and public transportation to get women in the door, while others buy ads on Google that are clearly meant to deceive women who are in search of abortion. For example, if you Google “abortion San Francisco,” or “abortion services San Francisco,” an advertisement for local CPC chain First Resort reading “Abortion info” appears at the top of the results page. Neither the ad nor First Resort’s website itself mentions First Resort’s ideological slant. CPCs frequently open across the street or near abortion clinics, and once women are inside CPCs, the deception continues. Although most crisis pregnancy centers are not medical clinics, they cultivate the appearance of being licensed medical clinics—staff members often dress in scrubs, provide ultrasounds and pregnancy tests, collect personal health and insurance information and even inform women that they’ve received actual prenatal medical care. NARAL Pro-Choice America investigations across the country have documented widespread dissemination of misleading and false information, including telling women that abortion increases the risk of breast cancer, infertility and mental-health problems—all claims that have been medically refuted.
* * *
While many Americans may consider federal funding for anti-abortion organizations an affront, pro-choice groups aren’t currently focusing their efforts on defunding. Instead, they’re targeting CPC’s ability to mislead and deceive pregnant women unchecked. Reproductive health services like emergency contraception, abortion and prenatal care are time-sensitive—a delay in access can increase health risks or even deny a woman her right to choose one of these options altogether. As right-wing legislators across the country continue to wage a war on women’s reproductive rights—a bill to allow hospitals to deny women life-saving abortion care just passed the House of Representatives—pro-choice legislators are looking for ways to insure that women receive access to and comprehensive information about reproductive health services without interference from crisis pregnancy centers. Baltimore and Montgomery County, Maryland; Austin, Texas; and New York City have all passed legislation addressing this problem, to varying degrees of success. An ordinance in San Francisco with similar goals was just passed by its board of supervisors on October 25.
In Baltimore, the first city to pass such an ordinance, then–City Council President and now Mayor Stephanie Rawlings-Blake’s legislation requires “limited-service pregnancy centers,” that is, centers whose primary purpose is to provide pregnancy-related services but do not provide or refer for abortion services or birth control, to carry signs that say they do not provide or refer for abortion or birth control. The ordinance passed—and anti-choice advocates immediately called the law an affront to free speech. The Archdiocese of Baltimore filed a lawsuit against the city; Archbishop Edwin O’Brien claimed that the ordinance was “a clear violation of these centers’ constitutional rights to free speech and their free exercise of religion.” A federal judge struck down the ordinance in January. In his decision, US District Judge Marvin Garbis wrote that the ordinance “violates the Freedom of Speech Clause of Article I of the Constitution of the United States and is unenforceable.”
New York City passed a similar ordinance in March. Councilmember Jessica Lappin’s legislation requires pregnancy service centers that are not licensed medical clinics but offer medical services, like ultrasounds or pregnancy tests, or look like medical clinics, to carry signs that say they do not have a medical professional on staff and do not provide or refer for abortion, emergency contraception or prenatal care. Comparing it to the Baltimore ordinance, Dave Andrusko, editor of National Right to Life News, called it a “noxious assault on first amendment freedom of speech law.” This legislation, like the legislation in Baltimore, ran into First Amendment problems. A federal judge struck this ordinance down in July, calling it “offensive to free speech principles.” Chris Slattery, founder of a New York City chain of crisis pregnancy centers, told the New York Times that the New York City decision was “one of the most important First Amendment decisions in American history.”
While Judge William Pauley acknowledged that deception related to reproductive healthcare can “spawn significant harms to pregnant, at-risk women who believe they are receiving care,” he suggested other solutions to this problem, like a public service campaign to raise awareness of the problem. Melissa Goodman, a senior litigation and policy council at the New York Civil Liberties Union working on the legislation in New York City, says such a solution would be inadequate because it would fail to give women all the information they need to make an informed choice right at the very moment they are choosing to go to a CPC or a medical office.
Theodore Ruger, a law professor at the University of Pennsylvania specializing in constitutional law and health law, points out that the baseline rules and requirements for medical practice can override or restrict freedom of speech. “If one is going to hold oneself out as practicing medicine or counseling on medical issues, as a general proposition one has to abide by the laws governing the practice of medicine in that state, even though it might intrude on Free Speech,” he explains. “A law that forces pregnancy centers to carry a sign that says ‘We don’t have medical professionals on staff’ would be, to my mind, easily defensible,” he continues. “A patient has a right to know whether or not they’re being treated by a medical professional.” Ruger warns that requiring signs that state these centers do not provide or refer for abortions may be harder to defend, as it may look a bit more like compelled speech.
“Pregnancy service centers can say what they want and do what they want when it comes to trying to convince women not to have abortions,” says Goodman of the NYCLU, “but what they can’t do is deceive women and provide important health services under the guise of medical authority.” Goodman stresses that cities looking to introduce such legislation need to establish a strong record of need for why they need such a law, include a tight and defensible definition of who will be covered by the law, and craft solutions that are very narrowly tied to fixing the problem to pass constitutional muster. She believes the New York City law comports with those requirements.
Stephanie Toti, a senior staff attorney at the Center for Reproductive Rights who has been defending Baltimore’s ordinance from litigation, also believes their solution is constitutional. “The ordinance does not in any way regulate what kind of services a pregnancy center must offer, nor does it regulate how a pregnancy center may discuss the topics of abortion or birth control with consumers,” she says. “It merely prevents pregnancy centers from lying to consumers about whether they provide abortion or birth control services.”
The San Francisco ordinance, which was approved by the San Francisco Board of Supervisors on October 25, takes a different approach, focusing on advertising. Supervisor Malia Cohen’s legislation prohibits crisis pregnancy centers from making false or misleading statements to the public about the services these centers offer. “These organizations have the perfect right to have deeply held positions against abortion and to advocate for those positions,” says Erin Bernstein, San Francisco’s deputy city attorney, who is working on the ordinance. “The problem is when you are falsely advertising, bringing women in who think they’re getting objective medical advice from a place that offers particular services.” Plunkett, the CEO of First Resort, said of its passage, “Those who value free speech and a woman’s right to choose have lost today to local elected officials’ election year pandering to a national pro-choice women’s organization.” But Gerald Thain, a professor at the University of Wisconsin Law School and an expert in both advertising law and First Amendment law, told me, “I see no violation of commercial speech or other free speech doctrine in preventing an entity from making false or misleading statements.” He continued, “Obviously, there are political overtones (in the broader sense of the word) and some might argue that this is political speech and so not subject to normal first amendment analysis. I disagree.” Thain pointed to Mother and Unborn Baby Care of North Texas, Inc v. Texas from the state court of appeals in 1988 in which an action by the state against advertisements for an apparent abortion clinic that was in fact an organization devoted to counseling women against having abortions was upheld as not violating the first amendment.
The decisions in Baltimore and New York City are currently in the process of being appealed, while San Francisco’s ordinance is waiting to be signed into law by Ed Lee. While each city has taken a slightly different approach, none of these legislative efforts infringe upon crisis pregnancy centers’ right to advocate against abortion. As New York City councilmember Lappin points out, “The key with these crisis pregnancy centers is that they are deceptive. They are tricking women into thinking they’re getting medical care when they’re not.” Progressives would do well to reframe this debate—CPCs put women’s health at risk and, in doing so, this issue transcends abortion politics. Which city’s legislation best addresses this problem can be debated, but some legislative solution is necessary to what is essentially a public health risk. As NARAL’s Ted Miller told me, “If anti-choice activists really believe that women deserve full information about their healthcare options, they should have no objections to an ordinance that simply requires they disclose the limitations of their services.”