Exploiting the First Amendment to Shield Deceptive Practices: Crisis Pregnancy Centers Ask the Supreme Court to Strike Down Mandatory Disclosures
Following the Ninth Circuit’s decision and denial of rehearing in National Institute of Family and Life Advocates v. Harris, the Alliance Defending Freedom petitioned the Supreme Court on behalf of the National Institute of Family and Life Advocates (NIFLA) for a writ of certiorari in March 2017. Nat’l Inst. of Family & Life Advocates v. Harris, 839 F.3d 823 (9th Cir. 2016), petition for cert. filed sub nom. Nat’l Inst. of Family & Life Advocates v. Becerra, No. 16-1140 (U.S. Mar. 21, 2017). The pending petition asks the Court to determine whether California’s law, requiring licensed pregnancy centers to provide information on how to obtain a state-funded abortion and unlicensed pregnancy centers to disclaim to clients that they do not have a medical license, violates the First Amendment. Aurora Barnes, Petitions of the Day, SCOTUSblog (May 26, 2017), http://www.scotusblog.com/2017/05/petitions-of-the-day-38/. A Crisis Pregnancy Center (CPC) is a nonprofit organization established to counsel women facing unintended pregnancies. See Melissa Kleder & S. Malia Richmond-Crum, The Truth Revealed: Maryland Crisis Pregnancy Center Investigations 1 (2008), http://www.prochoicemd.org/assets/bin/pdfs/cpcreportfinal.pdf. Reports on CPCs conducted by congressional staff, the National Abortion Federation (NAF), and NARAL Pro-Choice Maryland revealed the ways in which CPCs provide misleading information, attempt to delay abortions, and utilize manipulative strategies to dissuade women from getting abortions. Id.
CPCs are not medical clinics and are staffed primarily by volunteers without formal medical training. Id. “CPCs rarely supply information on contraception, and will not give referrals to clinics or physicians that offer comprehensive reproductive health care.” Id. at 2. “Volunteer staff members at these centers provide deceptive antiabortion messages to women, including that abortion is painful and life-threatening, has long-lasting physical and mental health consequences, [and] increases a woman’s risk of breast cancer . . . .” Id. at 1. In response to reports exposing CPC practices, Baltimore City passed an ordinance requiring CPCs to make disclosures aimed to protect women from misleading advertisements and unethical business practices, and the Maryland General Assembly has considered the issue as well, but has not yet enacted legislation. Memorandum from Amanda Mihill, Legislative Analyst, to Health & Human Servs. Comm. 1–3 (Jan. 21, 2010), http://www.montgomerycountymd.gov/COUNCIL/Resources/Files/agenda/cm/2010/100125/20100125_HHS2.pdf.
In December 2009, Baltimore, Maryland became the first city in the country to pass a CPC ordinance. Susan Lund, Crisis Pregnancy Centers Should Be Regulated by Consumer Protection Statute in Wisconsin, 27 Wis. J.L. Gender & Soc’y 37, 39 (2012). Ordinance 09-252 “requires limited-service pregnancy centers to inform their clients and potential clients that they do not provide or make referrals for abortion or comprehensive birth-control services.” Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor of Balt., No. MJG-10-760, 2014 WL 7362858, at *1 (D. Md. Dec. 23, 2014). Following its enactment, a CPC challenged the ordinance, arguing that it violated the First Amendment right to freedom of speech. Id. at *1. In the case, originally filed under the title O’Brien v. Mayor and City Council of Baltimore, the United States District Court for the District of Maryland applied strict scrutiny analysis to determine that the ordinance was too restrictive and unconstitutionally broad at the summary judgment stage. 768 F. Supp. 2d 804, 816–17 (D. Md. 2011). The City of Baltimore appealed the District Court’s decision to the Court of Appeals for the Fourth Circuit, which initially affirmed the District Court’s decision. Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor of Balt., 683 F.3d 539 (4th Cir. 2012). However, the Fourth Circuit later granted a rehearing and reviewed the case en banc, where the Court affirmed the District Court’s decision in part and vacated in part. Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor of Balt., 721 F.3d 264 (4th Cir. 2013). The case is presently on remand from the Fourth Circuit to allow defendants to conduct “essential discovery” on key factual issues. Greater Balt. Ctr. for Pregnancy Concerns, Inc., 2014 WL 7362858, at *1.
The New York City Council enacted Local Law 17 in March 2011, after finding that pregnancy service centers in New York City engaged in deceptive practices. Evergreen Ass’n, Inc. v. City of N.Y., 801 F. Supp. 2d 197, 201 (S.D.N.Y. 2011), aff’d in part, vacated in part, 740 F.3d 233 (2d Cir. 2014). Local Law 17 required pregnancy service centers to disclose whether they had a licensed medical provider on staff who provided or directly oversaw services, whether they made referrals for abortions, emergency contraception, and prenatal care, and that the New York City Department of Health and Mental Hygiene encourages pregnant women to consult with a licensed medical provider. Id. at 200–01.
Following the enactment of Local Law 17, several pregnancy service centers brought action against New York City, alleging that the law infringed upon their free speech rights under the United States and New York Constitutions. Id. at 201–03. The pregnancy service centers moved for a preliminary injunction to enjoin the law from taking effect until the action was resolved. Id. at 200. The United States District Court for the Southern District of New York granted the preliminary injunction. Id. Subsequently, New York City appealed the injunction to the United States Court of Appeals for the Second Circuit, which upheld one of the three disclosures. Evergreen, 740 F.3d at 237.
In 2015, California Assembly Bill 775 enacted new sections to the California Health and Safety Code, comprising “the Reproductive FACT (Freedom, Accountability, Comprehensive Care, and Transparency) Act.” Cal. Health & Safety Code § 123470 (West 2017); A.B. 775, 2015 Leg., Reg. Sess. (Cal. 2015). The act requires licensed pregnancy centers to disclose to all clients “that California has public programs that provide immediate free or low-cost access to comprehensive family planning services, prenatal care, and abortion.” A.B. 775. Unlicensed CPCs must also advise clients that the facility is not licensed to provide medical care. Id. Three CPCs operating in California challenged AB 775 as unconstitutional both on its face and as applied. A Woman’s Friend Pregnancy Res. Clinic v. Harris, 153 F. Supp. 3d 1168, 1179 (E.D. Cal. 2015), aff’d, 669 F. App’x 495 (9th Cir. 2016), petition for cert. filed sub nom. A Woman’s Friend Pregnancy Res. Clinic v. Becerra, No. 16-1146 (U.S. Mar. 22, 2017). The CPCs argued that the act is unconstitutional because it violates the CPCs’ right to freedom of speech and free exercise of religion under the First Amendment to the Constitution. Id. at 1201. The CPCs filed a motion for a preliminary injunction to block the new law from “taking effect pending full litigation.” Id. at 1179. The United States District Court for the Eastern District of California denied the motion. Id. On appeal, the Ninth Circuit affirmed the lower court’s decision. A Woman’s Friend Pregnancy Res. Clinic, 669 F. App’x at 496. In March 2017, the Pacific Justice Institute petitioned the Supreme Court for a writ of certiorari on behalf of the crisis pregnancy centers. Becerra, No. 16-1146. The petition is currently pending. Id.
Hawaii & Washington
The regulation of CPCs is gaining momentum across the country. In July 2017, Hawaii’s Governor, David Ige, signed Senate Bill 501 into law, requiring limited service pregnancy centers “to disclose to patients that ‘only ultrasounds performed by qualified healthcare professionals and read by licensed clinicians should be considered medical [sic] accurate.’” Nicole Knight, Hawaii Anti-Choice Clinics Are Suing for the Right to Lie to Pregnant People, Rewire (July 17, 2017), https://rewire.news/article/2017/07/17/hawaii-anti-choice-clinics-suing-right-lie-pregnant-people/ (quoting S.B. 501, 29th Leg., Reg. Sess. (Haw. 2017)). The Hawaii measure provides pregnant women the right to sue limited service pregnancy centers for up to $1,000 in damages. Id. In response to the enactment of Senate Bill 501, titled A Place for Women in Waipio, a limited service pregnancy center and NIFLA filed suit in federal court to block the law. Id.
The most recent CPC regulation was adopted on July 20, 2017, by the King County Board of Health in Washington. King County Board of Health Approves New Rule for County’s Limited Service Pregnancy Centers, King County (July 20, 2017), http://www.co.king.wa.us/council/news/2017/July/07-20-RDB-BOH-LSPC.aspx. The rule requires limited service pregnancy centers to post a disclosure stating, “[t]his facility is not a health care facility.” Bob Young, Crisis Pregnancy Centers Must Post Disclaimers Stating ‘Not a Health Care Facility’ under King County Rule, Seattle Times (July 20, 2017), http://www.seattletimes.com/seattle-news/health/crisis-pregnancy-centers-must-post-disclaimers-stating-not-a-health-care-facility-under-county-rule/.
The Supreme Court may ultimately decline to grant certiorari, leaving the Ninth Circuit decision and the California regulations in place. If the court decides to take the case, the outcome could result in a victory for the reproductive health community. The desire to regulate CPCs is growing; current public awareness campaigns include the Lady Parts Justice League’s partnership with more than a dozen reproductive health organizations to expose CPC practices. See Claire Landsbaum, This Organization Is Going after Crisis Pregnancy Centers for Spreading Misinformation about Abortion, Cut (July 18, 2017, 4:36 PM), https://www.thecut.com/2017/07/organization-going-after-crisis-pregnancy-centers-fake-news-abortion-lady-parts-justice.html. Other states are likely to follow suit if the Supreme Court finds that states can regulate crisis pregnancy centers, evidenced by the recent enactment of CPC regulations. However, if the court holds that CPC regulations violate the First Amendment’s free speech or free exercise clauses, states will be forced to develop a different tactic to deter crisis pregnancy centers from engaging in deceptive practices.
* Jennifer Mahan is a second-year law student at the University of Baltimore School of Law, where she serves as a staff editor for Law Review, as well as a research assistant for Professor Margaret Johnson, and serves as the Co-President of If/When/How: Lawyering for Reproductive Justice. Jennifer currently serves as an extern for the National Abortion Federation.