The Supreme Court just enabled fake health clinics to lie to patients

The Supreme Court just enabled fake health clinics to lie to patients

Right-wing media are calling it a "win" for the First Amendment

››› ››› JULIE TULBERT & SHARON KANN

On June 26, the Supreme Court decided National Institute of Family and Life Advocates (NIFLA) v. Becerra in favor of a network of fake health clinics. Right-wing media and anti-abortion organizations framed the decision as a “win” for the First Amendment, but those outlets (and even some more mainstream ones) ignored that these clinics are harmful and actively deceive people seeking abortions.


Sarah Wasko / Media Matters

The Supreme Court decided that fake health clinics may continue to deceive patients seeking abortions

The Supreme Court’s decision in NIFLA paves the way for California’s law to be overturned. On June 26, the Supreme Court decided NIFLA v. Becerra, a case involving a California law called the Reproductive Freedom, Accountability, Comprehensive Care and Transparency (FACT) Act. The law requires anti-abortion pregnancy centers to post a certain type of notice, depending on whether not the center is licensed by the state. Licensed clinics are required to post a notice informing clients that California provides low-cost or free reproductive health care. Unlicensed clinics are required to post a notice informing people that they were not a licensed medical facility. As BuzzFeed News reported, “The court held in a 5–4 majority opinion written by Justice Clarence Thomas that the notice required of licensed clinics under the law ‘likely violates’ the First Amendment, but the notice required of unlicensed clinics ‘unduly burdens speech’ and is unconstitutional.” The court sent the case back down to the lower court for further proceedings. [Supreme Court of the United States, accessed June 2018; BuzzFeed News, 6/26/18]

Before the decision, right-wing media and anti-abortion organizations pushed myths about the NIFLA case. Media Matters noted a number of myths that right-wing media and anti-abortion organizations were pushing before oral arguments began for the case. These myths included that anti-abortion clinics would be forced to “advertise” for abortions, that these clinics do not engage in deceptive tactics to stop people from obtaining abortions, and that the case would have far-reaching impacts for the First Amendment if the Supreme Court did not decide in NIFLA’s favor. [Media Matters, 3/16/18]

Fake health clinics are known to engage in deception and manipulation in their advertising and interactions with clients. Anti-abortion fake health clinics use multiple deceptive tactics to pose as comprehensive reproductive health providers in order to dissuade individuals from obtaining abortions. A yearlong investigation by Cosmopolitan found that these fake health clinics (also called crisis pregnancy centers or “CPCs”) “increasingly look just like doctor’s offices with ultrasound rooms and staff in scrubs. Yet they do not provide or refer for contraception or abortion. Many pregnancy-center counselors, even those who provide medical information, are not licensed.” Teen Vogue reported that some fake clinics also lie about the accessibility of abortion in a state, or about the risks of abortion procedures -- including making inaccurate claims that abortion makes a person infertile or causes breast cancer. Some fake clinics mislead potential clients before people even get in the door -- suggesting in their advertising that they offer abortion services or contraceptives, when in reality many fake clinics provide neither. Some fake clinics also receive direct funding from the states. As Lizz Winstead explained in HuffPost, “CPCs are NOT health care centers, yet many states divert Medicaid, TANF (Temporary Assistance for Needy Families), and other government funding designed to help low income people into these fake clinics.” [Cosmopolitan, 7/14/15; Teen Vogue, 6/21/17; National Institute for Reproductive Health, accessed March 2018; National Women’s Law Center, accessed March 2018; Truth In Advertising, 10/15/15; Salon, 7/14/15; HuffPost, 7/31/17; Media Matters,12/28/17, 3/22/18]

Right-wing outlets and media figures framed the decision as a “win” for the free speech of all Americans

The Daily Signal: NIFLA decision is a “win for free speech.” In a June 26 article, The Daily Signal wrote that the Supreme Court’s decision in NIFLA was a “win for free speech” against “California’s attempt to force pro-life pregnancy centers to advertise the state’s free or low-cost abortion program.” The outlet also said that the ruling was “a victory for all Americans because regardless of whether you agree with the message these pregnancy centers stand for” everyone should feel “wary of government compelling dissenting voices to communicate a message that directly contradicts” their own beliefs. [The Daily Signal, 6/26/18]

National Review: The Supreme Court decision is “a considerable victory for … the right to free speech.” National Review’s editors wrote that they “applaud [the NIFLA] decision, which represents a considerable victory for both the right to free speech and the conscience rights of pro-life Americans.” The editors lamented that the vote was only 5-4, writing that it “should not have been a narrow one,” but said that the closeness occurred because “four of the Court’s justices were so hell-bent on promoting the manufactured right to abortion that they were prepared to jettison” the right to free speech. The editors called the California law “an obvious and malicious violation of the First Amendment” and argued that it was “perhaps the best example of the rapidly growing extremism of the abortion-rights movement.” [National Review, 6/26/18]

Wash. Examiner: “If we take a moment to take the emotion out” and “fairly apply the rules, … the outcomes here are very simple.” Washington Examiner’s Jenna Ellis compared the California law to purely hypothetical laws that would force an Alcoholics Anonymous group “to advise every person coming through its doors where that person could obtain state-sponsored alcohol.” In another example, Ellis argued that the California law was akin to “if a Democratic speech writer were compelled by the government to write only Republican policy views in speeches.” Ellis wrote, “If we take a moment to take the emotion” out of the NIFLA case, and “fairly apply the rules, … the outcomes here are very simple” because the ruling was based on what “the Supreme Court may constitutionally do” under the First Amendment. Similar to what other right-wing outlets said, Ellis also remarked that the 5-4 ruling “told us more about the political activist view of the left-leaning justices on the Supreme Court.” Ellis concluded by calling for “more conservative justices” because they would be “constitutional umpires that are willing to fairly call balls and strikes.” [Washington Examiner, 6/26/18]

National Review's Alexandra DeSanctis:

[Twitter, 6/26/18]

The Daily Wire's Ben Shapiro:

[Twitter, 6/26/18]

The Federalist's Sean Davis:

[Twitter, 6/26/18]

Anti-abortion groups pushed their spin through opinion pieces and social media

ADF’s Michael Farris for LA Times: “California went too far” and “unconstitutionally targeted these pregnancy centers because of their views opposing abortion.” Writing in an opinion piece for Los Angeles Times, Alliance Defending Freedom's (ADF) Michael Farris promoted his organization’s talking points about the case. According to Farris, the decision was welcomed because “California went too far” and “unconstitutionally targeted these pregnancy centers because of their views opposing abortion.” Farris further argued that the case wasn’t actually about abortion, but in fact, “was always rooted in 1st Amendment concerns, against a factual backdrop of abortion.” Farris concluded that all Americans should support the decision because it upheld free speech rights. [The Los Angeles Times, 6/27/18]

NIFLA’s Thomas Glessner for USA Today: The “monumental decision” upholds “the fundamental constitutional liberty of free speech for all Americans.” In an opinion piece for USA Today, NIFLA’s Thomas Glessner argued that the court’s “monumental decision” was a victory for more than just his organization, as it upholds “the fundamental constitutional liberty of free speech for all Americans.” Glessner further claimed that because of the court’s decision, “relief from burdensome speech mandates will extend to all sorts of situations and ensure greater protection for all.” [USA Today, 6/26/18]

The Catholic Association’s Andrea Picciotti-Bayer for Fox News: The decision “vindicates women and the pregnancy centers who help them” because “the most important service found at a pregnancy center is caring.” Joining the many other anti-abortion groups who promoted their spin about the decision through opinion pieces, The Catholic Association’s Andrea Picciotti-Bayer wrote an op-ed for Fox News celebrating the decision. According to Picciotti-Bayer, the Supreme Court’s decision “vindicates women and the pregnancy centers who help them” because “the most important service found at a pregnancy center is caring.” Picciotti-Bayer concluded that because of the ruling, “these centers can operate, safeguarded by the Constitution from attempts to undermine their profoundly pro-woman message.” [Fox News, 6/26/18]

ADF’s Elissa Graves for Fox News: Because of the NIFLA decision, “the Supreme Court is once again standing for the right of all Americans” by “affirming that the government cannot tell you what to say or what to think.” In a June 26 opinion piece for Fox News, ADF’s Elissa Graves argued that the Supreme Court’s decision was a victory for more than just NIFLA and other anti-abortion organizations. According to Graves, “the Supreme Court is once again standing for the right of all Americans” by “affirming that the government cannot tell you what to say or what to think.” Graves concluded that the case was a “landslide win not only for the First Amendment, but for every single American.” [Fox News, 6/27/18]

Priests for Life’s Frank Pavone for Newsmax: Supreme Court gave “America a free speech, pro-life birthday gift." In an article titled “SCOTUS Gives America a Free Speech, Pro-Life Birthday Gift,” Priests for Life National Director Frank Pavone celebrated the NIFLA decision as “a victory to the fundamental rights which America promised to guarantee at its inception.” Pavone repeated a favored anti-abortion talking point and compared the California law to making “Alcoholics Anonymous ... advertise the local liquor store,” arguing that this proved that the law was not “neutral about the content” of speech and therefore violated the First Amendment. He also characterized the California law as pregnancy centers having to “help people find abortion by advertising it” (emphasis original). [Newsmax, 6/27/18]

ADF’s Jessica Prol Smith for The Federalist: “Supreme Court handed down a decisive victory for free speech, for tolerance, and for honesty in advertising.” ADF’s Jessica Prol Smith, who is also a member of the board of directors of the Capitol Hill Pregnancy Center in Washington, D.C., said, “the Supreme Court handed down a decisive victory for free speech, for tolerance, and for honesty in advertising.” Prol Smith disregarded arguments about the deceptive practices of fake health clinics by characterizing them as “an inviting and cheerful ‘third space’” that give pregnant people “a shoulder to cry on and room to breathe and plan for a new adventure.” Prol Smith said, "Even Americans who call themselves ‘pro choice’ can celebrate this court’s decision to protect authentic options and protect freedom for a woman to choose motherhood.” [The Federalist, 6/28/18]

March for Life:

[Twitter, 6/27/18]

Family Research Council: 

[Twitter, 6/26/18]

Created Equal:

[Twitter, 6/26/18]

Some mainstream outlets fell for the anti-abortion spin and talking points about the NIFLA decision

The Atlantic exclusively quoted anti-abortion groups and adopted their talking points about the decision. In a June 26 article following the Supreme Court’s decision, The Atlantic’s Emma Green emphasized that “pro-life advocates” were “celebrating the decision as a major win, both tactically and symbolically.” To demonstrate this point, Green quoted leaders from several anti-abortion groups (including Americans United for Life and The Becket Fund for Religious Liberty). In contrast, Green spoke to no leaders from abortion advocacy groups and instead noted that “the dissenting justices read the facts of the case differently” than the majority of the court. Green concluded that the NIFLA decision validated “pro-life advocates” because it confirmed what they “have been arguing all along” with regard to abortion rights and freedom of speech. Green’s article earned engagements on Twitter from many of the organizations she quoted, including March for Life and Live Action. [The Atlantic, 6/26/18; Twitter, 6/26/18, 6/26/18]

CNN downplayed the deceptive nature of fake health clinics. In the wake of the Supreme Court’s decision, a CNN article downplayed the deceptive nature of fake health clinics. Although CNN did note that some of these fake health centers “have no medical providers on site,” the article did not explore the deceptive tactics employed by these institutions beyond noting that “supporters” of the California law argued that it “was necessary because some clinics tried to disguise the fact that they oppose abortion.” [CNN, 6/26/18]

The Wall Street Journal claimed that the NIFLA decision was “important” for “reasserting the inviolability of” so-called “traditional free-speech protection.” The Wall Street Journal celebrated the Supreme Court’s decision in NIFLA, writing that the ruling was “important” for the purposes of “reasserting the inviolability of” so-called “traditional free-speech protection.” In the June 26 editorial, the editorial board wrote that the NIFLA decision was particularly crucial because it prevented states from being able to “single out ideas or speech” that they found undesirable. The article concluded, “Anyone aware today of the pressure being brought on disfavored speech or ideas … should welcome the Becerra ruling.” [The Wall Street Journal, 6/26/18]

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