Last month the California State Assembly passed the Reproductive FACT Act, a bill that would require so-called crisis pregnancy centers to inform their clients that California “provides free or low-cost access to comprehensive family planning services, prenatal care, and abortion, for eligible women.”
Sounds simple enough, but such disclosures are anathema to crisis pregnancy centers, or CPCs, which often use misleading advertisements—sometimes even posing as abortion providers—and regularly dispense inaccurate information in order to dissuade women from accessing contraception and abortion, as NARAL Pro-Choice America has documented. A 2006 congressional report found that federally funded CPCs informed patients seeking abortions that the procedure “could increase the risk of breast cancer, result in sterility, and lead to suicide and ‘post-abortion stress disorder.’ ”
Nearly a decade after that damning report, some 4,000 CPCs across America continue to operate with little or no regulation, in many cases deceiving women seeking medical advice and care. Today CPCs outnumber legitimate abortion clinics by a 3-to-1 ratio. And if California’s bill passes a Senate vote in coming weeks, anti-abortion groups will likely bring suit against the state. In 2010 after Baltimore passed a law requiring CPCs to post signs disclosing that they don’t provide abortions or contraception, the Archdiocese of Baltimore sued the city; in 2011 a district court struck down the law, and after several appeals it is still not in effect. Around the same time New York City and Austin, Texas, required CPCs to post signage; Austin’s law was overturned, as were central requirements in New York’s law.
The CPCs won these cases by arguing that the disclosure laws infringed on their First Amendment rights, compelling the courts to focus their analysis on CPCs’ speech, as Kelli Garcia, senior counsel at the National Women’s Law Center, explained to me.
“Our saving grace is the idea of the freedom of speech,” one longtime anti-abortion advocate told me recently. “We would lose consistently if not for the freedom of speech.” But what about the rights of the Americans seeking counseling and health care at CPCs? Is there a way to frame a legal challenge on behalf of those women’s rights? Below I’ve outlined three possibilities and why each might be difficult to pull off.
Last year, I attended a conference for Heartbeat International, a Christian pregnancy center network with 1,800 affiliate centers. Heartbeat speakers instructed CPC staff to hide their anti-abortion motives by giving their centers neutral-seeming names such as “Choices,” situating them near abortion clinics, and scrubbing their Christian beliefs from their websites. In every state in the U.S., consumer protection laws prohibit businesses from engaging in false advertising and other misleading practices. But regulating CPCs under these protections is tricky for a few reasons.
One big barrier to consumer fraud litigation is the power imbalance between CPCs and the women who could potentially file fraud claims. At the Heartbeat conference several speakers openly acknowledged that their centers are most appealing to young, disenfranchised women who don’t have anywhere else to turn. “Generally, if they’re calling us, they’re afraid to talk to the people in their life,” said Bri Laycock, director of Heartbeat’s phone referral service, Option Line. In contrast, CPCs are often affiliated with politically connected national organizations supported by teams of lawyers, many of whom also draft model anti-abortion legislation.
Multiple lawyers have told me it’s hard to find women willing to go public about this kind of consumer fraud. An Ohio woman who mistook a CPC for an abortion provider, delaying her abortion by weeks, told me, “No one wants people to know they’ve been to a pregnancy help center.” Many women and girls who visit CPCs find themselves at an intersection of stigma: poverty and unplanned pregnancy. It’s unlikely that a mother working a low-wage job or a teenager who’s afraid to tell her parents she’s pregnant will find a lawyer to pursue a consumer fraud complaint. And even if a woman did sue a CPC, she would have to prove not only that she was misled by dishonest practices but also that those practices caused her a specific harm.
A second barrier to false-advertising claims is that they hinge on commercial speech restrictions. Commercial speech is subject to less constitutional protection than noncommercial speech. But CPCs are generally nonprofit organizations that don’t charge money for the services they provide, and many courts have found CPCs’ speech to be noncommercial. It was this noncommercial classification that helped win the CPCs their cases against Baltimore, New York, and Austin.
Church and state.
At the Heartbeat conference, speakers and center workers discussed how to introduce women to “a life of Christ,” but subtly. “You don’t have to say the name ‘Jesus’—it’s just how you live it,” one pregnancy counselor told the crowd. Like many other religious nonprofits, CPCs receive government funds; they’re not supposed to use them for religious activities, but in most cases there’s limited government oversight or monitoring attached to these funds.
More to the point, a very particular interpretation of orthodox Christianity lies at the heart of most—if not all—CPC activities, even when direct references to Jesus are scarce. The First Amendment means we’re free to be motivated by all kinds of personal beliefs. But it also puts limits on a state’s ability to subsidize religion and religious activities. If CPCs are using state funds to proselytize, there could be a case to be made that they are violating the constitutional separation of church and state. The line between religious and government activities is often blurry when it comes to CPCs, however, and that haziness makes litigation difficult.
Malpractice and unlicensed practice of medicine.
Many CPC personnel do not have licenses and therefore usually aren’t subject to the standards that limit what a licensed professional—such as a social worker or lawyer—can tell a client or patient. Unlicensed CPC staff sometimes dress in scrubs, and many CPC websites advertise “trained counselors,” without explaining that religious anti-abortion organizations such as Heartbeat and Care Net actually train those counselors how to shepherd “broken” women toward Christ.
Each state has its own rules, but for example, Pennsylvania—sponsor of the country’s biggest state-funded CPC program—allows people without licenses to advertise themselves as “counselors” but not “licensed counselors.”
What is the rule in all 50 states, however, is that unlicensed professionals can’t practice medicine. In some states you even need a license to operate a sonogram machine. Many pregnancy centers offer what they call “limited ultrasounds” and are emphatic that they don’t diagnose; still, the National Women’s Law Center’s Garcia said, “If staff is unlicensed and reading tests, then there seems like there could be a claim.” Again, a woman would usually need to prove that she’s suffered a specific harm; once a woman has found a legitimate medical or counseling provider to meet her needs, it could be difficult to prove she’s still suffering from whatever happened at the CPC.
In the last decade, CPCs have increasingly acquired sonogram equipment and licensed staff, which could potentially make them vulnerable to malpractice suits. A cottage industry now sells malpractice insurance specifically for CPCs.
But they may not find much use for it. One abortion clinic director in Arkansas told me that she often suggests patients file a complaint against CPCs that have given them wrong information, but those patients always say something like, “I just want to have my abortion and move on.” Meanwhile, one attorney told me that some lawyers feel reluctant to press malpractice charges because they could set a precedent allowing the government to interfere with the physician-patient relationship. If those same precedents could then be used to tighten abortion restrictions, it would be one more cruel irony among many in the saga of crisis pregnancy centers.