On March 20, the Supreme Court will hear oral arguments in National Institute of Family and Life Advocates (NIFLA) v. Becerra. This case concerns a California law requiring unlicensed pregnancy clinics to disclose their lack of medical services and licensed pregnancy clinics to post a notice about low-cost or free reproductive health services offered by the state. Some media outlets have pushed the myth that the law compels anti-abortion fake health clinics to promote pro-choice views, including by advertising for abortions.
UPDATE: On June 26, the Supreme Court decided NIFLA v. Becerra, ruling against the California law regulating fake health clinics. The court “held that part of California's crisis pregnancy center disclosure law is unconstitutional and that another part is likely unconstitutional.” [Supreme Court, accessed June 2018; BuzzFeed News, 5/26/18]
The Supreme Court will hear a case on March 20 over a law that regulates the deceptive practices of fake health clinics
Fake health clinics are anti-abortion clinics that purport to offer full reproductive health care options. In 2018, NARAL Pro-Choice America released a report on “The Insidious Power of the Anti-Choice Movement” that outlined the tactics and influence of “fake health centers.” These centers, which call themselves “crisis pregnancy centers” or “pregnancy help centers,” are anti-abortion organizations that erroneously represent themselves as comprehensive reproductive care clinics in order to deceive those seeking abortions. In response to the Supreme Court case National Institute of Family and Life Advocates (NIFLA) v. Becerra, NARAL and other reproductive rights organizations launched the “End The Lies” campaign “to expose the deceptive and dangerous practices of fake women’s health centers.” Under California’s Reproductive Freedom, Accountability, Comprehensive Care and Transparency (FACT) Act, fake health clinics are subject to regulation under two places in the law. Unlicensed clinics are those that are not licensed by the state of California and that do “not have a licensed medical professional on staff” but “whose primary purpose is proving pregnancy-related services” such as pregnancy tests, counseling, and/or ultrasounds. Licensed facilities are those that have been licensed as medical facilities and satisfied the criteria of providing pregnancy or family planning services, which does not have to include offering abortions. [NARAL Pro-Choice America, accessed March 2018, 2/28/18; End the Lies campaign, accessed March 2018; California legislature, accessed March 2018]
Supreme Court will hear oral arguments on March 20 in a case that deals with the deceptive nature of fake health clinics. On March 20, the Supreme Court will hear oral arguments in NIFLA v. Becerra, which involves California’s Reproductive FACT Act. Under the act, licensed clinics are required to display a notice at their facilities and in their advertising materials stating that California provides “immediate free or low-cost” reproductive services, which includes abortion. Unlicensed clinics are required to post a notice stating that they are not medical facilities and do not have medical professionals doing on-site supervision. The National Institute of Family and Life Advocates (NIFLA) -- which represents both licensed and unlicensed fake health clinics in California -- challenged the law as a violation of its facilities’ free speech rights to not promote abortion or contraceptives. [Roll Call, 3/5/18; California Legislature, accessed March 2018; Vice News, 11/14/17]
NIFLA: “Forcing a pro-life group to advertise for abortion has to be unconstitutional, yet this is what California’s Reproductive FACT Act does.” In NIFLA’s brief to the Supreme Court, the organization claimed that “forcing a pro-life group to advertise for abortion has to be unconstitutional, yet this is what California’s Reproductive FACT Act does.” Furthermore, NIFLA argued that the law compels clinics “to deliver a particular message crafted by the State,” meaning that NIFLA’s “effectiveness as advocates who encourage childbirth over abortion is undoubtedly undermined by a conspicuous sign informing expectant mothers how to obtain free or low-cost abortions.” From the brief:
Forcing a pro-life group to advertise for abortion has to be unconstitutional, yet that is what California’s Reproductive FACT Act does.
Compelled speech is antithetical to the First Amendment. There is no dispute that the Act compels Petitioners to deliver a particular message crafted by the State. This government-mandated message is precisely the kind of compelled speech that the Constitution forbids.
The State is “us[ing] the wall of the [center] as a billboard to advertise the availability of low cost abortions.” … This creates duplicity of thought and mental conflict for Petitioners--requiring them “to affirm in one breath that which they deny in the next.”
Petitioners’ effectiveness as advocates who encourage childbirth over abortion is undoubtedly undermined by a conspicuous sign informing expectant mothers how to obtain free or low-cost abortions. [NIFLA, Brief for petitioners to the Supreme Court, 1/8/18]
Fox’s Tucker Carlson: The California law “would force pro-life centers to literally advertise” for a “free abortion.” During a November 2017 segment of Fox News’ Tucker Carlson Tonight featuring NIFLA President Thomas Glessner, host Tucker Carlson said people who are “completely in favor of abortion” could “still have real concerns about a government forcing people to say things they don’t believe.” Carlson said that the law “would force pro-life centers to literally advertise and tell people who come in, ‘Hey, there is a free abortion waiting for you if you want one.’” Glessner further explained that the disclosure happens “before we, our centers, are ever able to talk to them.” [Fox News, Tucker Carlson Tonight, 11/15/17; Media Matters, 11/20/18]
Weekly Standard: “The California law conscripts pro-lifers’ walls as billboards to advertise abortion.” Writing for The Weekly Standard, Minnesota-based lawyer John D. Hagen Jr. (who did not disclose his position on NIFLA’s National Legal Advisory Council) argued that “the California law conscripts pro-lifers’ walls as billboards to advertise abortion.” He further claimed that California “sought to make pro-life groups do the advertising simply because it disapproves of their viewpoint and their mission.” Hagen Jr. summarized the case as the Supreme Court deciding whether “the right not to act as a billboard for government messages is still preserved by the Free Speech Clause.” [The Weekly Standard, 3/5/18]
NIFLA leadership wrote for Daily Signal that the California law makes their clinics “abortion referral agencies.” NIFLA’s Glessner and Anne O’Connor, vice president of legal affairs, wrote in a Daily Signal commentary that the California law requires the court to determine “whether pro-life advocates must refer clients to abortion clinics.” Glessner and O’Connor argued that “forcing pro-life pregnancy centers to become abortion referral agencies is a mandate that violates the foundational principles of these faith-based agencies.” [The Daily Signal, 11/27/17]
State of California: The postings don’t require active engagement from clinics, instead simply asking that they share “neutral information of great importance.” In its brief, the state of California said that the disclosure required of licensed clinics “does not require any clinic to provide, discuss, or refer for any service” and that the disclosure itself operates “in a manner that will not limit [clinics’] ability to engage in their own advocacy.” California’s brief also explained that the law was crafted to allow clinics to be “entirely free to expressly disavow the notice,” even though “no ‘disavowal’ should be necessary, because the required notice does not suggest any ‘avowal’ in the first place.” California further argued that the disclosures required for both licensed and unlicensed clinics are neutral because they are “limited” and do not include “advice about what” someone coming to the clinic may do. The disclosure required of licensed clinics “provides neutral information of great importance,” the brief states. From the brief (emphasis original):
The [unlicensed clinic] disclosure itself is limited and neutral, and contains no advice about what the woman should do. The woman alone decides whether the unlicensed status of an entity is pertinent to her needs. … To the extent that the absence of a license implies a particular facility’s inability to offer medical services, that is inherent in the system of licensing to begin with, and an unlicensed facility would be in violation of California law if it did provide such care.
The two-sentence Licensed Facility Disclosure provides neutral information of great importance, in a manner consistent with the State’s ability to regulate in the professional context. It is just one of a number of non-ideological notices required in the healthcare field, which will not be misattributed to petitioners and will not interfere with their own message.
At the same time, the Legislature crafted the disclosure requirement in a manner that fully respects a clinic’s ability to limit what services it will provide or endorse. The Act does not require any clinic to provide, discuss, or refer for any service. Clinics must provide only the barest notice of how the patient may access information about eligibility for public programs providing comprehensive reproductive healthcare should she choose to do so. And the Act’s flexibility allows clinics to provide that notice in a manner that will not limit their ability to engage in their own advocacy.
Patients understand that a clinic’s role in serving as a conduit for such notices is not self-expression. … Thus, although California’s law leaves clinics entirely free to expressly disavow the notice, … no “disavowal” should be necessary, because the required notice does not suggest any “avowal” in the first place.” [State of California, Brief for respondents to the Supreme Court, 2/20/18]
Constitutional law scholar Erwin Chemerinsky: “The First Amendment burden on the crisis pregnancy centers is minimal.” Erwin Chemerinsky, a constitutional law scholar and professor, wrote for The Sacramento Bee that “the First Amendment burden on the crisis pregnancy centers is minimal: they are just required to post a notice on their walls. Their employees need not utter any words. The notices are entirely factual, informing patients about the existence of state programs. The required signs do not advocate anything.” In particular, the disclosure for unlicensed clinics “is just another way of ensuring that patients have full and accurate information.” [The Sacramento Bee, 2/27/18]
Constitutional law professor Robert Sedler: “The California law does not violate the First Amendment.” In Salon, constitutional law professor Robert Sedler wrote, “In my opinion, the California law does not violate the First Amendment” because it “doesn’t compel the clinics to say or not say anything, only to post truthful information provided by the state.” California has an “important interest in ensuring that woman have all the information necessary to make an informed, time-sensitive decision about their pregnancy.” And the centers still “are perfectly free to try to persuade women not to have an abortion even in the presence of information on family planning services.” [Salon, 1/8/18]
Rewire.News: California’s law simply prevents anti-abortion clinics from presenting their message “in a fraudulent and misleading fashion.” Rewire.News’ Jessica Mason Pieklo explained that neither of the disclosures in the California law is “coercive” for clinics: They “could meet those disclosure requirements and still pressure patients into carrying pregnancies to term.” She wrote that the law stops these clinics from pushing their anti-abortion message “in a fraudulent and misleading fashion—by hiding facts from patients.” [Rewire.News, 11/14/17]
Myth: This law violates the First Amendment and upholding it will have far-reaching impacts on free speech rights
NIFLA: The California law targets the anti-abortion message of certain clinics and therefore engages in “the most egregious form of speech regulation.” NIFLA also claimed that California is engaged in viewpoint discrimination, which it called “the most egregious form of speech regulation.” NIFLA argued that the disclaimer required of licensed clinics “singles out particular speakers with a particular viewpoint” and that the disclaimer for unlicensed clinics is “targeted at unlicensed facilities that are pro-life in their mission.” In NIFLA’s brief, the organization holds that California’s “egregious targeting of a particular viewpoint presents a prime vehicle for the Court to hold that the government can never mandate or suppress speech based on an ideological disagreement” with “a private speaker.” In conducting outreach for this case, NIFLA President Glessner has maintained that because he sees this laws as an “egregious targeting” of a particular viewpoint, the Supreme Court ruling for California would mean “the First Amendment is gone,” and that “we have no First Amendment anymore.” From the brief:
Viewpoint discrimination is the most egregious form of speech regulation.
By applying the Compelled Abortion Referral only to licensed pregnancy centers that are pro-life, the Act singles out particular speakers with a particular viewpoint. The Compelled Disclaimer is also targeted at unlicensed facilities that are pro-life in their mission because it covers only facilities “whose primary purpose is providing pregnancy-related services.”
The State thus openly sought to mandate speech that will undermine the centers’ ability to further their pro-life mission and advocate their pro-life views. This sort of viewpoint targeting is “forbidden.”
The Act’s egregious targeting of a particular viewpoint presents a prime vehicle for the Court to hold that the government can never mandate or suppress speech based on an ideological disagreement. A per se rule has been a long time coming.
Following this established practice, this Court should now declare that a per se violation of the First Amendment occurs when the government regulates speech based on a disagreement with the viewpoint of a private speaker. [NIFLA, Brief for petitioners to the Supreme Court, 1/8/18; NIFLA’s webcast, accessed March 2018; A Conversation of Life with Hope Resource Center, 1/31/18]
National Review: NIFLA v. Becerra is “one of the most dangerous free-speech cases in a generation.” National Review’s David French, who filed an amicus brief on behalf of NIFLA, wrote that NIFLA v. Becerra is “one of the most dangerous free-speech cases in a generation,” because “the violation of the First Amendment in the NIFLA case is more egregious, and the implications potentially more far-reaching,” than the Supreme Court’s other big First Amendment case of this term, Masterpiece Cakeshop v. Colorado Civil Rights Commission. French explained that although “in recent months, much of the professional commentariat has declared that America is flirting with authoritarianism,” those accusations should be leveled not against President Donald Trump, but against supporters of the California law, which he says forces “dissenting citizens to advance” an “agenda” against their beliefs. French concluded by speculating about whether the First Amendment will continue to hold “as a firewall against state efforts to compel speech.” [National Review, 1/16/18]
Fact: These clinics’ speech can be regulated as a matter of licensing and in order to provide critical health information
State of California: People looking for “pregnancy-related services” should be informed of relevant information. California argued in its brief that the law is necessary because both forms of disclosure provide vital information for patients seeking “pregnancy-related services.” For unlicensed clinics, a person “needs to know whether the entity she is dealing with is in fact a state-licensed clinic staffed with regulated professionals.” The required disclosure makes clear that those “who seek state-licensed, professional medical care are not unwittingly diverted to facilities unable to provide it.” Similarly, because licensed clinics (fake health clinics, in this case) often target “those not covered by private insurance or already enrolled in public programs and provides less than the full spectrum of relevant healthcare,” a prospective patient would need “to know that there are state resources available to access additional care if she wishes to do so.” As California explained, the regulation placed on licensed clinics is one of “professional speech,” meaning that it is part of the “State’s ability to regulate in the professional context” as “just one of a number of non-ideological notices required in the healthcare field.” From the brief:
When she is offered assistance by a facility that provides pregnancy-related services of a type the public may associate with medical clinics, she needs to know whether the entity she is dealing with is in fact a state-licensed clinic staffed with regulated professionals. And when she visits a state-licensed clinic that caters to those not covered by private insurance or already enrolled in public programs and provides less than the full spectrum of relevant healthcare, she needs to know that there are state resources available to access additional care if she wishes to do so.
Disclosure of such an entity’s unlicensed status ensures that women who seek state-licensed, professional medical care are not unwittingly diverted to facilities unable to provide it, and thus helps “women to seek the care they wish to obtain.
The two-sentence Licensed Facility Disclosure provides neutral information of great importance, in a manner consistent with the State’s ability to regulate in the professional context. It is just one of a number of non-ideological notices required in the healthcare field, which will not be misattributed to petitioners and will not interfere with their own message. [State of California, Brief for respondents to the Supreme Court, 2/20/18]
Consumer advocacy group: Required disclosures are “well within the range” of professional speech regulation allowed under the First Amendment. Public Citizen, a nonprofit consumer advocacy organization, submitted an amicus brief to the Supreme Court arguing that the regulations in the NIFLA case are permitted under the First Amendment. According to the brief, disclosures that “disclose factual information pertinent to consumers … are permissible if they are reasonably related to a government interest and are not unduly burdensome.” The organization explained that in this case, the disclosures “are reasonably related to legitimate interests in ensuring that women seeking pregnancy-related care receive factual information that is highly material to the decision whether to seek care at specific facilities.” For that reason, the “disclosures fall well within the range of the kinds of legitimate regulations of professional service providers that do not trigger strict First Amendment scrutiny.” From the brief:
Requirements that commercial speakers disclose factual information pertinent to consumers, investors, and regulators are subject to an even more relaxed form of scrutiny and are permissible if they are reasonably related to a government interest and are not unduly burdensome.
Here, the state’s disclosure requirements are reasonably related to legitimate interests in ensuring that women seeking pregnancy-related care receive factual information that is highly material to the decision whether to seek care at specific facilities.
The disclosures fall well within the range of the kinds of legitimate regulations of professional service providers that do not trigger strict First Amendment scrutiny. [Amicus brief of Public Citizen, 2/26/18]
Legal ethicists: NIFLA’s clinics should be “required” to make “minimum disclosures designed to provide accurate information.” In an amicus brief submitted by professors and legal ethicists across the country, these experts argued that if clinics were not regulated by California, NIFLA’s centers “would flout the reasonable policy rationales for providing narrow and accurate disclosures to the clients that professionals hope to serve.” The legal ethicists also maintained that such disclosures are “sometimes necessary to prevent consumer deception” particularly because NIFLA’s clinics “target women with less income and education.” For those reasons, they explained, they “should have no entitlement to entice prospective clients and offer services, without making required minimum disclosures designed to provide accurate information and promote informed decision making.” From the brief:
Permitting such an exception [for NIFLA’s clinics] would flout the reasonable policy rationales for providing narrow and accurate disclosures to the clients that professionals hope to serve.
Even absent a particularly vulnerable population, the regulation of professional speech, including mandatory disclosures, is sometimes necessary to prevent consumer deception.
To the extent that Petitioners’ nonprofit services target women with less income and education, that population is in fact especially vulnerable and in particular need of basic information, so as to make an informed choice. … Thus, nonprofit organizations should have no entitlement to entice prospective clients and offer services, without making required minimum disclosures designed to provide accurate information and promote informed decision making. [Amicus brief of legal ethicists, 2/26/18]
Members of Congress: Disclosure requirements “are pervasive in the law” and “are consistent with the First Amendment.” One hundred and ten members of Congress also submitted an amicus brief arguing that “disclosure requirements, such a those contained in the Act, are pervasive in the law.” They noted that such requirements “serve substantial governmental interests in ‘protecting consumers’ and in ‘maintaining standards among members of the licensed professions.’” As a result, rather than violating the First Amendment, such disclosures “are consistent with the First Amendment and further its values, while ensuring that consumers have access to accurate information about their rights.” The group further noted that “opposition to a federal right … does not give a speaker a First Amendment right to be exempt from generally-applicable content-neutral disclosures requirements.” From the brief:
Disclosure requirements, such a those contained in the Act, are pervasive in the law. They serve substantial governmental interests in “protecting consumers” and in “maintaining standards among members of the licensed professions.”
The First Amendment does not stand in the way of such content-neutral regulation designed to ensure that rights-holders know about, and therefore can enjoy, their statutorily-protected rights. … Such disclosure requirements are consistent with the First Amendment and further its values, while ensuring that consumers have access to accurate information about their rights.
Many federal protections spark bitter controversy. But opposition to a federal right--whether on religious moral, or other grounds--does not give a speaker a First Amendment right to be exempt from generally-applicable content-neutral disclosures requirements that ensure individuals are informed about statutorily protected rights and how to exercise them. That is true whether the subject is medical privacy, equality, or, as in this case, women’s health care.” [Amicus brief of members of Congress, 2/27/18]
NIFLA: Clinics provide resources to pregnant people, and accusations of harm aren’t supported by evidence. NIFLA described the centers it operates as having the “sole mission of encouraging expectant mothers to give their children the opportunity of life … by providing women with free information and resources.” NIFLA maintains that California has not provided “any objective or impartial evidence that pregnancy centers like Petitioners actually ‘misinform’ anyone about their medical status or services.” In particular, NIFLA claimed that California’s claim that regulation of unlicensed clinics is necessary to inform prospective patients “that certain pro-life pregnancy centers are not licensed medical facilities … could not possibly be a compelling interest because there is no evidence of any confusion about what these centers do and do not provide.” From the brief:
Petitioners are nonprofit pregnancy centers, licensed and unlicensed, with the sole mission of encouraging expectant mothers to give their children the opportunity for life. They do so by providing women with free information and resources like prenatal vitamins, diapers, and baby clothes; the licensed centers also provide limited medical services such as ultrasounds. All of their speech is designed to encourage childbirth.
Although the bill sponsor claimed that these centers “often confuse [and] misinform” women, … neither the legislative history nor the record contains any objective or impartial evidence that pregnancy centers like Petitioners actually “misinform” anyone about their medical status or services.
The State’s claim that the Compelled Disclaimer for unlicensed centers furthers its interest in informing women that certain pro-life pregnancy centers are not licensed medical facilities fares no better. This could not possibly be a compelling interest because there is no evidence of any confusion about what these centers do and do not provide. [NIFLA, Brief for petitioners to the Supreme Court, 1/8/18]
NIFLA’s Glessner and O’Connor in The Daily Signal: “Pro-life pregnancy resource centers are a critical lifeline” for those experiencing an unplanned pregnancy. In The Daily Signal, NIFLA’s Glessner and O’Connor wrote at length about what services the organization’s centers provide, saying they give “free care and resources” to “thousands of Californians. Many of these women are alone, desperate for support because the father of their child has abandoned them.” Promoting the perceived importance of their centers, Glessner and O’Connor said that “a pro-life pregnancy resource center may be the only nonabortive option available for disadvantaged mothers who wish to choose life.” Indeed, they claimed that “pro-life centers are a critical lifeline to women experiencing a crisis pregnancy.” [The Daily Signal, 11/27/17]
US News: Claiming that clinics are “pretending to provide abortions is almost comical.” In an op-ed for U.S. News & World Report, Ashley McGuire, a senior fellow at the political organization The Catholic Association, said the claim that “pregnancy resource centers” are deceiving individuals and “pretending to provide abortions is almost comical.” McGuire compared this claim to the idea that Planned Parenthood is “pretending to offer ‘full-service reproductive health’ care.” Instead, McGuire argued that the fact that “the abortion lobby is willing to push this all the way to the Supreme Court belies something sinister” and asked why California would “harass the only other place a woman can go for an alternative to abortion” and “what is so threatening about mom-and-pop pregnancy resource centers scattered throughout America?” [U.S. News & World Report, 1/19/18]
Fact: Fake health clinics engage in deception and manipulation to dissuade people from accessing abortion care
State of California: Limited-service centers often pretend or suggest that they provide medical services or the full range of reproductive health care. California’s brief explained the number of ways that both unlicensed and licensed clinics engage in deception and manipulation in order to draw those potentially seeking abortions to clinics that don’t provide them. California specifically noted that these centers “actively seek out women with unplanned pregnancies” under the guise of providing a full range of medical services. California wrote that “some misunderstandings can be exacerbated by the attributes and actions of the centers themselves.” The brief lists a number of deceptive practices employed by both licensed and unlicensed centers. For example, the brief notes that many unlicensed clinics “outwardly resemble medical institutions” while many licensed clinics’ “names and advertising imply that they will provide comprehensive reproductive healthcare” when in reality they “provide only limited services and incomplete medical advice selected to ‘prevent women from accessing abortions.’” California said that the only types of people the notices would “dissuade” from going to these clinics are those “who would only have gone there because they were misled or confused” or because the clinics “were deceiving women about the existence of such programs.” From the brief:
Informational challenges for low-income women may be heightened by the activities of limited-service centers that actively seek out women with unplanned pregnancies but either do not provide medical care at all or provide only limited types of care and advice.
Some misunderstandings can be exacerbated by the attributes and actions of the centers themselves. Some centers that have no medical professionals and offer no medical services nevertheless outwardly resemble medical institutions--for instance, by using lab coats, forms, and office spaces resembling those at medical clinics, and by providing services such as ultrasounds and pregnancy testing. Some facilities may be licensed medical clinics whose names and advertising imply that they will provide comprehensive reproductive healthcare, but which in fact provide only limited services and incomplete medical advice selected to “prevent women from accessing abortions.” … Staff and volunteers may achieve that goal by conveying information that is medically or legally false, or distracting women who ask questions that the center prefers not to answer. As the Legislature heard, the result can be to delay or thwart women’s ability to receive the medical care and truthful information they seek--as evidenced by physician testimony about patients whose serious health issues were overlooked by limited-service facilities, or who received inaccurate information from such facilities.
The only women whom the [unlicensed clinics’] notice will dissuade from going to such a facility are those who would only have gone there because they were misled or confused.
The only way that such a limited disclosure [for licensed clinics] could be “opposite” … to a factual assertion by a clinic would be if the clinic were deceiving women about the existence of such programs. [State of California, Brief for respondents to the Supreme Court, 2/20/18]
Social science researchers: Crisis pregnancy centers “portray the services they provide in a potentially misleading way.” A group of social science, public health, and clinical researchers submitted a brief saying research supports the claim that crisis pregnancy centers “portray the services they provide in a potentially misleading way.” The group stated that some clinics “market their services to pregnant women and other women of reproductive age without disclosing in advance that they do not provide abortion or contraception” and that they “have been found to provide inaccurate and misleading medical information about abortion and contraception.” In the brief, the researchers contrast this deception that’s intended to dissuade or prevent people from having abortions with the “overwhelming evidence from social science research” showing “that the vast majority of women who decide to have an abortion are sure about their choice and want to avoid delay in obtaining care.” From the brief:
Overwhelming evidence from social science research demonstrates that the vast majority of women who decide to have an abortion are sure about their choice and want to avoid delay in obtaining care. … Research shows that [crisis pregnancy centers (CPCs)] in many cases portray the services they provide in a potentially misleading way, and as such, we believe that there is a risk that women may visit certain CPCs based on misconceptions. Furthermore, irrespective of the reason women may visit a CPC, research has shown that many CPCs disseminate inaccurate medical information, which may risk causing harm.
First, some CPCs market their services to pregnant women and other women of reproductive age without disclosing in advance that they do not provide abortion or contraception.
Second, CPCs have been found to provide inaccurate and misleading medical information about abortion and contraception.
Based on the research that has been conducted to date, amici believe there is a risk that some women may visit certain CPCs with a misconception about which services are provided and which are not, and while there, may receive scientifically and medically inaccurate information. Such findings indicate that patient interests are served by disclosures about limitations on care, and information that may connect them with the care they seek. [Amicus brief of social science researchers, 2/27/18]
Health care organizations: Sharing information about abortion availability can prevent delays in getting “highly time-sensitive” reproductive health care service. In a brief submitted by a group of national and California health care organizations, including the American College of Obstetricians and Gynecologists and the American Medical Women’s Association, the group wrote that sharing information about abortions could prevent “avoidable risks associated with delayed care” of reproductive health services that are “highly time-sensitive.” The brief documents the risks associated with delayed prenatal care, as well as with delayed abortion care. For example, a person who is delayed in accessing abortion care, “whether as a result of cost, misinformation, or otherwise is exposed to preventable health risks associated with her continued pregnancy. In some cases, remaining pregnant may seriously jeopardize a woman’s health.” They also explained that while “legal abortion is among the safest procedures in medicine,” the “complication rate … increases as gestational age increases.” From the brief:
Women’s pregnancy-related health care services are highly time-sensitive, and unnecessary delay can pose significant risks to maternal and fetal health. Accordingly, requiring licensed medical facilities to inform women of the availability of free or low-costs care reduces certain avoidable risks associated with delayed care and thereby promotes health. This is particularly true if the facility does not itself offer the comprehensive family planning services, prenatal care, or abortion that is being sought, in which case a woman must seek care elsewhere.
In addition, requiring unlicensed medical facilities to inform women that there are no licensed medical providers on staff serves two important public health goals: (1) it allows women to make more fully informed decisions about the pregnancy-related services that they receive; and (2) it prevents unlicensed facilities from misleading women into believing that the services being offered are medically necessary or beneficial.
Thus, a woman who has decided to obtain an abortion but remains pregnant because of delay, whether as a result of cost, misinformation, or otherwise is exposed to preventable health risks associated with her continued pregnancy. In some cases, remaining pregnant may seriously jeopardize a woman’s health.
Legal abortion is among the safest procedures in medicine, and it is significantly safer than childbirth.
Further, although the complication rate of both medical and surgical abortion is very low, it increases as gestational age increase. [Amicus brief of American Academy of Pediatrics, et al., 2/27/18]
Fake health clinics are known to engage in deception and manipulation in their advertising, in their interactions with clients, and in the media. A group of reproductive health organizations created the “End The Lies” campaign, which addresses the various tactics fake health clinics use to trick people out of having abortions. One tactic is deceptive advertising, where fake health clinics imitate abortion clinics in order to lure in people seeking abortions. For example, the anti-abortion organization Human Coalition (which both supports and runs fake health clinics) places ads on Google using “keywords” that people seeking abortions might use to locate a clinic, even though Human Coalition does not provide and will not refer anyone for an abortion. Fake health clinics also provide misinformation to those who come into their clinics seeking an abortion. In just one example, Amanda Schwartz, who works at a reproductive justice nonprofit in West Virginia, wrote in HuffPost that crisis pregnancy centers “offer ‘counseling,’ which essentially consists of an untrained volunteer asking probing questions and pressuring the person to carry their pregnancy to term.” These clinics have also attempted to push their talking points about their supposed benefits through alternative media such as through the outlet Pregnancy Help News, which is run by a national network of clinics called Heartbeat International. [End the Lies, accessed March 2018; Media Matters, 5/10/17, 12/28/17; Bloomberg, 3/24/17; HuffPost, 9/27/17; Pregnancy Help News, accessed March 2018]