Last week, a firestorm erupted in the birth and reproductive justice advocacy world over a statement generated by the NIH Vaginal Birth After Cesarean (VBAC) Consensus Development panel implying that in some circumstances a pregnant woman cannot refuse cesarean surgery.
Last week, a firestorm erupted in the birth and reproductive justice advocacy world over a statement generated by the NIH Vaginal Birth After Cesarean (VBAC) Consensus Development panel implying that in some circumstances a pregnant woman cannot refuse cesarean surgery. (Audio files can be found here, videocast here and commentary here, here, and here). Panelist Laurence McCullough, the chair in Medical Ethics and Health Policy at Baylor University College of Medicine, spoke for the panel during the public comment session and in a press briefing, taking the position that a physician has an independent obligation to protect a fetus, which, it is claimed, is not dispensed by a laboring woman’s refusal to consent. The panelists’ comments indicated that a conclusion regarding the ethical question was beyond their scope, yet stated to the press and to the audience that the body of law and ethics that protects the right to refuse surgery was not written for, and may not include pregnant patients.
Are women who are pregnant simply a different form of person with a different set of rights?
The position taken by the consensus panel directly contradicts the thoughtful and comprehensive presentation given 24 hours earlier by Dr. Anne Lyerly of Duke University, the invited expert speaker on the ethics of vaginal birth after cesarean. Dr. Lyerly reminded the panel of “a lesson that we need to keep learning but should know by now.”
“In obstetrical decision making,” she said, “women retain their rights of bodily integrity, just as people do in all other situations. So when a woman declines a cesarean, even when it is absolutely indicated, she cannot be forced to undergo it, [n]or be punished for her decision not to. American jurisprudence supports that, as well as ACOG [the American Congress of Obstetricians and Gynecologists].”
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Nevertheless, the panel’s written statement uses the language of honoring “patient preference” and “shared decision–making” between physician and patient, to the exclusion of respecting the woman’s right to bodily integrity.
The panel’s comments therefore represent one view — though it is certainly not the majority view — in legal and ethical thought about how best to manage situations in which a woman’s decision is contrary to a doctor’s medical opinion. On other questions related to vaginal birth after cesarean, the consensus panel indicated when it found the data conflicting or incomplete. Why was it only in the matter of informed refusal, without which informed consent is meaningless, that the panel declined to either take a position reaffirming already-existing ethical standards, or highlight the alleged gap in evidence?
According to its website, the NIH Consensus Development Program provides “an unbiased, independent, evidence-based assessment of complex medical issues.” In keeping with this broader effort, the Eunice Kennedy Shriver National Institute of Child Health and Human Development and the NIH Office of Medical Applications of Research convened the Vaginal Birth After Cesarean: New Insights Consensus Development Conference. The purpose of the conference was to gather and review scientific evidence to advance understanding by the medical community and the public about the clinical risks and benefits of vaginal birth after cesarean, and how they interact with “legal, ethical, and economic forces” to shape provider and patient choices about whether to offer or choose VBAC instead of repeat cesarean. The three-day conference was free and open to the public, during which time the floor was opened for discussion, and comments were accepted online. Statements are independent reports of the panel and are not policy of NIH or the Federal Government, not intended as legal documents, practice guidelines, or as primary sources of technical data. Consensus statements therefore have no binding authority, but recommendations may impact professional organizations and may help to guide the direction of future NIH-funded research.
The draft statement and the attempts to clarify it fell prey to both of the challenges about which Dr. Lyerly warned in her discussion of ethics in decision-making about VBAC. First, the consensus failed to note that aggregate preferences might not accurately reflect the preferences of the individual patients they are meant to represent. Individual preferences vary widely, and are both “morally and clinically relevant.” Second, the consensus did not meet the challenge to avoid “swamping,” whereby discrete outcomes, institutional goals, and provider views are permitted to become more important than patients’ goals and values.
Dr. Stuart Fischbein, an obstetrician from southern California embattled for his support of women seeking VBAC, posed “a question of ethics and math” to the panel during public comments at the beginning of the conference. He asked whether hospitals banning vaginal birth after cesarean, effectively forcing the 70 percent of women who will have a successful VBAC to the risks of repeated surgery, was “a violation of our oath… to first do no harm?” The conclusion that many women should be counseled to consider a trial of labor for subsequent deliveries, and that hospitals should endeavor to lift VBAC bans was a signal of agreement, a signal that the physician’s ethical duty to first do no harm means that physicians should work with patients to decide how to proceed based on the patient’s view of the risks and her own values.
One may hope and expect that the conference will result in many more women being offered the opportunity to give birth vaginally. A major barrier to VBAC access has been a requirement that surgical and anesthesia personnel be “immediately available” during a delivery where the woman has had a prior cesarean. The consensus statement recommends that the professional organizations of obstetricians and gynecologists as well as anesthesiologists reassess practice guidelines singling out vaginal birth after cesarean for the “immediately available” standard. The panel also recommended collaboration between practitioners, policymakers and advocates to develop strategies to mitigate medico-legal considerations that restrict access to care.
However, the consensus panel’s statement represents a dead end for women who are not considered “ideal candidates” or women who disagree with their physician’s assessment of which risks are actually “riskier” and to whom. Much ink has been spilled refuting the two-patient model of obstetric ethics, which conceptualizes the interaction between mother and fetus as a conflict capable of being decided by an outside arbiter (be it a judge, ethicist, or doctor), rather than a conflict between the mother and the doctor. The manner in which the panel has cast the problem of obstetric ethics as a maternal-fetal conflict, as opposed to a woman-doctor conflict could lead one to the conclusion that a physician’s ethical obligation to “first do no harm” applies to fetuses, but not to women — an untenable position for a profession devoted to caring for women, and a dangerous position for public health. The panel’s failure to condemn practices such as court-ordered cesareans and child protective services intervention to coerce women’s compliance with doctor’s orders poses major questions about whether and how personal convictions may have been at play in this discussion.
Reproductive justice advocates and attorneys are reviewing the strength of the legal precedent protecting pregnant women. Meanwhile, childbirth educators are showing the webcast of Dr. McCullough’s comments about informed refusal to their classes. Women who have had a cesarean and are planning future pregnancies are tuning in. What is a woman desiring a vaginal birth after a cesarean left to think? Likely, that the safest place for her to exercise her autonomy in birth is at home. Not only does the panel’s position miss an opportunity to protect a woman’s human right to informed refusal, it actively pushes women away from providers and out of hospitals, an ethical failure for all concerned.
Feminist theologian Mary Daly said that tokenism dulls the revolutionary impulse. In that sense, perhaps it is useful that the panel did not include even a token nod to a woman’s right to informed refusal of medical treatment if she happens to be pregnant. Indeed it offered nothing but a silencing of women pleading not to be put under the knife against their will, as a matter of civil and human rights, as well as a plea to the relationship of trust that ought to exist between provider and patient. And now, given this position, the impulse has been sharpened, and the revolution has been fueled.
Doctors can't treat their patients with leeches; counselors can't impose their beliefs on patients or harm them using discredited methods. Whatever their views, medical professionals have to treat their clients competently.
Whether they’re bakers, florists, or government clerks, those claiming the right to discriminate against LGBTQ people have repeatedly sought to transform professional services into constitutionally protected religious speech. They have grabbed headlines for refusing, for example, to grant marriage licenses to same-sex couples or to make cakes for same-sex couples’ weddings-all in the name of “religious freedom.”
A bit more quietly, however, a handful of counseling students at public universities have challenged their schools’ nondiscrimination and treatment requirements governing clinical placements. In some cases, they have sought a constitutional right to withhold treatment from LGBTQ clients; in others, they have argued for the right to directly impose their religious and anti-gay views on their clients.
There has been some state legislative maneuvering on this front: Tennessee, for instance, recently enacted a thinly veiled anti-LGBTQ measure that would allow counselors to deny service on account of their “sincerely held principles.” But when it comes to the federal Constitution, providing medical treatment—whether bypass surgery, root canal, or mental-health counseling—isn’t advocacy (religious or otherwise) protected by the First Amendment. Counselors are medical professionals; they are hired to help their clients, no matter their race, religion, or sexual orientation, and no matter the counselors’ beliefs. The government, moreover, may lawfully prevent counselors from harming their clients, and universities in particular have an interest, recognized by the U.S. Supreme Court, in preventing discrimination in school activities and in training their students to work with diverse populations.
The plaintiffs in these cases have nonetheless argued that their schools are unfairly and unconstitutionally targeting them for their religious beliefs. But these students are not being targeted, any more than are business owners who must comply with civil rights laws. Instead, their universities, informed by the rules of the American Counseling Association (ACA)—the leading organization of American professional counselors—merely ask that all students learn to treat diverse populations and to do so in accordance with the standard of care. These plaintiffs, as a result, have yet to win a constitutional right to discriminate against or impose anti-LGBTQ views on actual or prospective clients. But cases persist, and the possibility of conflicting court decisions looms.
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The first major challenge to university counseling requirements came from Jennifer Keeton, who hoped to receive a master’s degree in school counseling from Augusta State University. As detailed in the 2011 11th Circuit Court of Appeals decision considering her case, Keeton entered her professional training believing that (1) “sexual behavior is the result of personal choice for which individuals are accountable, not inevitable deterministic forces”; (2) “gender is fixed and binary (i.e., male or female), not a social construct or personal choice subject to individual change”; and “homosexuality is a ‘lifestyle,’ not a ‘state of being.'”
It wasn’t those views alone, however, that sunk her educational plans. The problem, rather, was that Keeton wanted to impose her views on her patients. Keeton had told both her classmates and professors about her clinical approach at a university-run clinic, and it wasn’t pretty:
She would try to change the sexual orientation of gay clients;
If she were counseling a sophomore student in crisis questioning his sexual orientation, she would respond by telling the student that it was not OK to be gay.
If a client disclosed that he was gay, she would tell him that his behavior was wrong and try to change it; if she were unsuccessful, she would refer the client to someone who practices “conversion therapy.”
Unsurprisingly, Keeton also told school officials that it would be difficult for her to work with LGBTQ clients.
Keeton’s approach to counseling not only would have flouted the university’s curricular guidelines, but also would have violated the ACA’s Code of Ethics.
Her conduct would have harmed her patients as well. As a school counselor, Keeton would inevitably have to counsel LGBTQ clients: 57 percent of LGBTQ students have sought help from a school professional and 42 percent have sought help from a school counselor. Suicide is the leading cause of death for LGBTQ adolescents; that’s twice or three times the suicide rate afflicting their heterosexual counterparts. And Keeton’s preferred approach to counseling LGBTQ students would harm them: LGBTQ students rejected by trusted authority figures are even more likely to attempt suicide, and anti-gay “conversion therapy” at best doesn’t work and at worst harms patients too.
Seeking to protect the university’s clinical patients and train her to be a licensed mental health professional, university officials asked Keeton to complete a remediation plan before she counseled students in her required clinical practicum. She refused; the university expelled her. In response, the Christian legal group Alliance Defending Freedom sued on her behalf, claiming that the university violated her First Amendment rights to freedom of speech and the free exercise of religion.
The courts disagreed. The trial court ruled against Keeton, and a panel of the U.S. Court of Appeals for the 11th Circuit unanimously upheld the trial court’s ruling. The 11th Circuit explained that Keeton was expelled not because of her religious beliefs, but rather because of her “own statements that she intended to impose her personal religious beliefs on clients and refer clients to conversion therapy, and her own admissions that it would be difficult for her to work with the GLBTQ population and separate her own views from those of the client.” It was Keeton, not the university, who could not separate her personal beliefs from the professional counseling that she provided: “[F]ar from compelling Keeton to profess a belief or change her own beliefs about the morality of homosexuality, [the university] instructs her not to express her personal beliefs regarding the client’s moral values.”
Keeton, in other words, crossed the line between beliefs and conduct. She may believe whatever she likes, but she may not ignore academic and professional requirements designed to protect her clients—especially when serving clients at a university-run clinic.
As the court explained, the First Amendment would not prohibit a medical school from requiring students to perform blood transfusions in their clinical placements, nor would it prohibit a law school from requiring extra ethics training for a student who “expressed an intent to indiscriminately disclose her client’s secrets or violate another of the state bar’s rules.” Doctors can’t treat their patients with leeches; counselors can’t impose their beliefs on patients or harm them using discredited methods. Whatever their views, medical professionals have to treat their clients competently.
Ward v. Polite
The Alliance Defending Freedom’s follow-up case, Ward v. Polite, sought to give counseling students the right to withhold service from LGBTQ patients and also to practice anti-gay “conversion therapy” on those patients. The case’s facts were a bit murkier, and this led the appeals court to send it to trial; as a result, the student ultimately extracted only a modest settlement from the university. But as in Keeton’s case, the court rejected in a 2012 decision the attempt to give counseling students the right to impose their religious views on their clients.
Julea Ward studied counseling at Eastern Michigan University; like Keeton, she was training to be a school counselor. When she reviewed the file for her third client in the required clinical practicum, she realized that he was seeking counseling about a romantic relationship with someone of the same sex. As the Court of Appeals recounted, Ward did not want to counsel the client about this topic, and asked her faculty supervisor “(1) whether she should meet with the client and refer him [to a different counselor] only if it became necessary—only if the counseling session required Ward to affirm the client’s same-sex relationship—or (2) whether the school should reassign the client from the outset.” Although her supervisor reassigned the client, it was the first time in 20 years that one of her students had made such a request. So Ward’s supervisor scheduled a meeting with her.
Then things went off the rails. Ward, explained the court, “reiterated her religious objection to affirming same-sex relationships.” She told university officials that while she had “no problem counseling gay and lesbian clients,” she would counsel them only if “the university did not require her to affirm their sexual orientation.” She also refused to counsel “heterosexual clients about extra-marital sex and adultery in a values-affirming way.” As for the professional rules governing counselors, Ward said, “who’s the [American Counseling Association] to tell me what to do. I answer to a higher power and I’m not selling out God.”
All this led the university to expel Ward, and she sued. She claimed that the university violated her free speech and free exercise rights, and that she had a constitutional right to withhold affirming therapy relating to any same-sex relationships or different-sex relationships outside of marriage. Like Keeton, Ward also argued that the First Amendment prohibited the university from requiring “gay-affirmative therapy” while prohibiting “reparative therapy.” After factual discovery, the trial court dismissed her case.
On appeal before the U.S. Court of Appeals for the Sixth Circuit, Ward eked out a narrow and temporary win: The court held that the case should go to a jury. Because the university did not have a written policy prohibiting referrals, and based on a few troubling faculty statements during Ward’s review, the court ruled that a reasonable jury could potentially find that the university invoked a no-referrals policy “as a pretext for punishing Ward’s religious views and speech.” At the same time, the court recognized that a jury could view the facts less favorably to Ward and rule for the university.
And although the decision appeared to sympathize with Ward’s desire to withhold service from certain types of clients, the court flatly rejected Ward’s sweeping arguments that she had the right to stray from the school curriculum, refuse to counsel LGBTQ clients, or practice anti-gay “conversion therapy.” For one, it said, “Curriculum choices are a form of school speech, giving schools considerable flexibility in designing courses and policies and in enforcing them so long as they amount to reasonable means of furthering legitimate educational ends.” Thus, the problem was “not the adoption of this anti-discrimination policy, the existence of the practicum class or even the values-affirming message the school wants students to understand and practice.” On the contrary, the court emphasized “the [legal] latitude educational institutions—at any level—must have to further legitimate curricular objectives.”
Indeed, the university had good reason to require counseling students—especially those studying to be school counselors—to treat diverse populations. A school counselor who refuses to counsel anyone with regard to nonmarital, nonheterosexual relationships will struggle to find clients: Nearly four in five Americans have had sex by age 21; more than half have done so by the time they turn 18, while only 6 percent of women and 2 percent of men are married by that age.
In any event, withholding service from entire classes of people violates professional ethical rules even for nonschool counselors. Although the ACA permits client referrals in certain circumstances, the agency’s brief in Ward’s case emphasized that counselors may not refuse to treat entire groups. Ward, in sum, “violated the ACA Code of Ethics by refusing to counsel clients who may wish to discuss homosexual relationships, as well as others who fail to comport with her religious teachings, e.g., persons who engage in ‘fornication.'”
But Ward’s approach would have been unethical even if, in theory, she were permitted to withhold service from each and every client seeking counseling related to nonmarital sex (or even marital sex by same-sex couples). Because in many cases, the need for referral would arise well into the counseling relationship. And as the trial court explained, “a client may seek counseling for depression, or issues with their parents, and end up discussing a homosexual relationship.” No matter what the reason, mid-counseling referrals harm clients, and such referrals are even more harmful if they happen because the counselor disapproves of the client.
Fortunately, Ward did not win the sweeping right to harm her clients or otherwise upend professional counseling standards. Rather, the court explained that “the even-handed enforcement of a neutral policy”—such as the ACA’s ethical rules—”is likely to steer clear of the First Amendment’s free-speech and free-exercise protections.” (Full disclosure: I worked on an amicus brief in support of the university when at Americans United.)
Ward’s lawyers pretended that she won the case, but she ended up settling it for relatively little. She received only $75,000; and although the expulsion was removed from her record, she was not reinstated. Without a graduate counseling degree, she cannot become a licensed counselor.
Cash v. Hofherr
The latest anti-gay counseling salvo comes from Andrew Cash, whose April 2016 lawsuit against Missouri State University attempts to rely on yet murkier facts and could wind up, on appeal, in front of the more conservative U.S. Court of Appeals for the Eighth Circuit. In addition to his range of constitutional claims (freedom of speech, free exercise of religion, equal protection of law), he has added a claim under the Missouri Religious Freedom Restoration Act.
The complaint describes Cash as “a Christian with sincerely-held beliefs”—as opposed to insincere ones, apparently—”on issues of morality.” Cash started his graduate counseling program at Missouri State University in September 2007. The program requires a clinical internship, which includes 240 hours of in-person client contact. Cash decided to do his clinical internship at Springfield Marriage and Family Institute, which appeared on the counseling department’s list of approved sites. Far from holding anti-Christian bias, Cash’s instructor agreed that his proposed class presentation on “Christian counseling and its unique approach and value to the Counseling profession” was an “excellent” idea.
But the presentation itself revealed that Cash intended to discriminate against LGBTQ patients. In response to a question during the presentation, the head of the Marriage and Family Institute stated that “he would counsel gay persons as individuals, but not as couples, because of his religious beliefs,” and that he would “refer the couple for counseling to other counselors he knew who did not share his religious views.” Because discrimination on the basis of sexual orientation violates ACA guidelines, the university determined that Cash should not continue counseling at the Marriage and Family Institute and that it would be removed from the approved list of placements. Cash suggested, however, that he should be able to withhold treatment from same-sex couples.
All this took place in 2011. The complaint (both the original and amended versions) evades precisely what happened between 2012 and 2014, when Cash was finally expelled. You get the sense that Cash’s lawyers at the Thomas More Society are trying to yadda-yadda-yadda the most important facts of the case.
In any event, the complaint does acknowledge that when Cash applied for a new internship, he both ignored the university’s instructions that the previous hours were not supposed to count toward his requirement, and appeared to be “still very much defend[ing] his previous internship stating that there was nothing wrong with it”—thus suggesting that he would continue to refuse to counsel same-sex couples. He continued to defend his position in later meetings with school officials; by November 2014, the university removed him from the program.
Yet in challenging this expulsion, Cash’s complaint says that he was merely “expressing his Christian worldview regarding a hypothetical situation concerning whether he would provide counseling services to a gay/homosexual couple.”
That’s more than just a worldview, though. It also reflects his intent to discriminate against a class of people—in a manner that violates his program’s requirements and the ACA guidelines. Whether hypothetically or otherwise, Cash stated and reiterated that he would withhold treatment from same-sex couples. A law student who stated, as part of his clinic, that he would refuse to represent Christian clients would be announcing his intent to violate the rules of professional responsibility, and the law school could and would remove him from the school’s legal clinic. And they could and would do so even if a Christian client had yet to walk in the door.
But maybe this was just a big misunderstanding, and Cash would, in practice, be willing and able to counsel same-sex couples? Not so, said Cash’s lawyer from the Thomas More Society, speaking about the case to Christian news outlet WORLD: “I think Christians have to go on the offensive, or it’s going to be a situation like Sodom and Gomorrah in the Bible, where you aren’t safe to have a guest in your home, with the demands of the gay mob.” Yikes.
Although Cash seems to want a maximalist decision allowing counselors and counseling students to withhold service from LGBTQ couples, it remains to be seen how the case will turn out. The complaint appears to elide two years’ worth of key facts in order to present Cash’s claims as sympathetically as possible; even if the trial court were to rule in favor of the university after more factual development, Cash would have the opportunity to appeal to the U.S. Court of Appeals for the Eighth Circuit, one of the country’s most conservative federal appeals courts.
More generally, we’re still early in the legal battles over attempts to use religious freedom rights as grounds to discriminate; only a few courts across the country have weighed in. So no matter how extreme Cash or his lawyers may seem, it’s too early to count them out.
* * *
The cases brought by Keeton, Ward, and Cash not only attempt to undermine anti-discrimination policies. They also seek to change the nature of the counselor-client relationship. Current norms provide that a counselor is a professional who provides a service to a client. But the plaintiffs in these cases seem to think that counseling a patient is no different than lecturing a passerby in the town square, in that counseling a patient necessarily involves expressing the counselor’s personal and religious beliefs. Courts have thus far rejected these attempts to redefine the counselor-patient relationship, just as they have turned away attemptsto challengebans on “reparative therapy.”
The principles underlying the courts’ decisions protect more than just LGBTQ clients. As the 11th Circuit explained in Keeton, the university trains students to “be competent to work with all populations, and that all students not impose their personal religious values on their clients, whether, for instance, they believe that persons ought to be Christians rather than Muslims, Jews or atheists, or that homosexuality is moral or immoral.” Licensed professionals are supposed to help their clients, not treat them as prospective converts.
Women who have visited almost any abortion clinic in the United States have seen anti-choice protesters outside, wielding placards and chanting abuse. A Boston advertiser's technology, when deployed by anti-choice groups, allows those groups to send propaganda directly to a woman’s phone while she is in a clinic waiting room.
Last year, an enterprising advertising executive based in Boston, Massachusetts, had an idea: Instead of using his sophisticated mobile surveillance techniques to figure out which consumers might be interested in buying shoes, cars, or any of the other products typically advertised online, what if he used the same technology to figure out which women were potentially contemplating abortion, and send them ads on behalf of anti-choice organizations?
The executive—John Flynn, CEO of Copley Advertising—set to work. He put together PowerPoint presentations touting his capabilities, and sent them to groups he thought would be interested in reaching “abortion-minded women,” to use anti-choice parlance.
Before long, he’d been hired by RealOptions, a network of crisis pregnancy centers (CPCs) in Northern California, as well as by the evangelical adoption agency Bethany Christian Services.
Flynn’s endeavors quickly won him attention in the anti-choice world. He was invited to speak at the Family Research Council’s ProLifeCon Digital Action Summit in January this year, and he got a few write-ups in anti-choice press.
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In an interview with Live Action News—the website for Live Action, the group run by anti-choice activist Lila Rose that is responsible for bogus attack videos against Planned Parenthood—Flynn gave some details about his strategy. He sends advertisements for his clients to women’s smartphones while they are sitting in Planned Parenthood clinics, using a technology known as “mobile geo-fencing.” He also planned to ping women at methadone clinics and other abortion facilities. His program for Bethany covered five cities: Columbus, Ohio; Pittsburgh, Pennsylvania; Richmond, Virginia; St. Louis, Missouri; and New York City.
“We are very excited to bring our mobile marketing capabilities to the pro-life community,” Flynn told Live Action News.
Anti-choice groups were tantalized by the ability to home in on the women they think will be most susceptible to their message.
“Marketing for pregnancy help centers has always been a needle in a haystack approach—cast a wide net and hope for the best,” said Bethany Regional Marketing Manager Jennie VanHorn, according to the report. “With geo fencing, we can reach women who we know are looking for or in need of someone to talk to.”
Flynn’s targeting of women seeking abortion presents a serious threat to the privacy and safety of women exercising their right to choose, as well as to abortion providers and their staff, a Rewire investigation has found. But due to weak and patchwork laws governing privacy and data collection in the United States, the conduct appears to be perfectly legal.
Women who have visited almost any abortion clinic in the United States have seen anti-choice protesters outside, wielding placards and chanting abuse. This technology, when deployed by anti-choice groups, allows them to send propaganda directly to a woman’s phone while she is in a clinic waiting room. It also has the capability to hand the names and addresses of women seeking abortion care, and those who provide it, over to anti-choice groups.
“It is incredibly unethical and creepy,” Brian Solis, a digital marketing expert, told Rewire, expressing a view that was unanimous among a dozen experts in digital security, privacy law, and online marketing we interviewed for this story.
Solis said this example was the inevitable application of a technology meant for one purpose—mass advertising campaigns that, while considered by many people to be unseemly and intrusive, do not generally amount to a threat—to a very different, and troubling, objective.
“You can grab an uncomfortable amount of information from someone’s device and the apps they use,” said Solis. “It’s unfortunate, but any woman who plans to visit an affected Planned Parenthood, or anyone who works for Planned Parenthood, should be afraid.”
When Ads Follow You Around
By now, most Americans have experienced the following phenomenon: You look at something online—a hotel, a flower delivery service, a course at a local college—and the next thing you know, ads for that thing follow you around the internet for the next week.
A watch you looked at now pops up next to your Facebook feed; an ad for a coffee machine you researched on Amazon now lurks on your favorite news sites. And maybe, after researching cars online, it seems that Toyota knows whenever you visit a lot, and sends ads to your phone as you walk through the dealership’s doors.
This is all part of the new landscape of digital advertising, where marketers can tailor their ads to very specific groups of consumers by compiling “personas” based on the thousands of shards of data we all create as we go about our activities online.
While theoretically anonymous, these marketing personas are surprisingly accurate. Marketers likely know your age, gender, occupation, education level, marital status, and—if you have GPS enabled on your phone and are logged into apps that track you—where you live, work, and travel.
What Flynn realized is that he could use the same technologies to infer that a woman might be seeking an abortion, and to target her for ads from anti-choice groups.
“We can reach every Planned Parenthood in the U.S.,” he wrote in a PowerPoint display sent to potential clients in February. The Powerpoint included a slide titled “Targets for Pro-Life,” in which Flynn said he could also reach abortion clinics, hospitals, doctors’ offices, colleges, and high schools in the United States and Canada, and then “[d]rill down to age and sex.”
“We can gather a tremendous amount of information from the [smartphone] ID,” he wrote. “Some of the break outs include: Gender, age, race, pet owners, Honda owners, online purchases and much more.”
Flynn explained that he would then use that data to send anti-choice ads to women “while they’re at the clinic.”
In his sales PowerPoint, Flynn said that he had already attempted to ping cellphones for RealOptions and Bethany nearly three million times, and had been able to steer thousands of women to their websites. The price tag for one of Copley’s campaigns, he said, was $8,000.
Flynn initially agreed to speak with Rewire for this story, but did not respond to multiple follow-up emails and phone calls. Much of this report is based on materials that he sent to people he believed to be potential clients. Numerous messages seeking comment from management for RealOptions went unanswered; Jennifer Gradnigo, a spokesperson for Bethany Christian Services, confirmed that they have used Copley’s services and “appreciate their ideas,” but declined to discuss specific campaigns.
Not everyone who received Flynn’s pitch emails was impressed. One recipient contacted Rewire after speaking with Flynn, and expressed horror at what Flynn told her he was able to do on behalf of anti-choice clients.
“I felt disgust, and I felt protective of these women who are going to seek sensitive medical services at a time when they’re vulnerable,” said the recipient, who is a social worker at a Northern California adoption agency. Rewire agreed to withhold her identity due to her fears of retaliation from anti-choice activists.
“They’re being spied on by this capitalist vulture who is literally trying to sell their fetuses,” she said. “To do this to women without consent is predatory and it’s an invasion of her privacy, and unethical.”
In emails and PowerPoint presentations sent in early March, Flynn claimed to have reached more than 800,000 18-to-24-year-old women on behalf of RealOptions, and to have sent more than 2,000 of those women to RealOption’s website.
Rewire obtained three examples of the ads that Flynn said he had sent to young women’s phones on RealOptions’ behalf.
The ads are typical of CPCs.
They ask, “Pregnant?” or “Abortion?” and then include statements like “It’s your choice. You have time… Be informed” and “Get the facts first.”
Like most CPCs, the claim that RealOptions provides “facts” about abortion is deceptive. While that language may lead women to believe they could obtain abortion care at RealOptions, in federal tax filings, the organization explains its mission as: “empowering and equipping women and men to choose life for their unborn children through the love of Jesus Christ in accordance with his word regarding the sanctity of human life.”
According to its website, RealOptions has received funding from the radical Christian group Focus on the Family. The organization was founded in 1981 by Marion and Tom Recine, fervent Christians who in a video posted to their website refer to the “many, many, many women who’ve come to Jesus because of the [RealOptions] centers.”
Flynn also says that he has targeted 140 abortion clinics on behalf of Bethany Christian Services over the past few months, and that 10,000 people clicked on the ads for Bethany that he sent to smartphones in those clinics, directing them to a “dedicated resource centers landing page.”
The social worker who received Flynn’s pitch deck told Rewire she was alarmed that Flynn had succeeded in reaching so many women on behalf of his anti-choice clients.
“He’s doing it and it’s working and it’s probably really impacting human trajectories,” she said. “It changes human lives to be funneled into a system like this.”
Advertising Is Now a System of Surveillance
Although it is now ubiquitous, mobile digital advertising is a relatively new phenomenon, only as old as the sophisticated smartphones on which it relies. As a result, laws and the regulators who enforce them are lagging behind when it comes to the many possible ways that bad actors can abuse smartphone advertising.
In terms of federal laws, many either don’t apply to Flynn’s conduct, or would allow it, according to Chris Hoofnagle, a professor at the University of California, Berkeley’s School of Law, and School of Information.
“Privacy law in the U.S. is technology- and context-dependent,” Hoofnagle said. “As an example, the medical information you relay to your physician is very highly protected, but if you go to a medical website and search for ‘HIV’ or ‘abortion,’ that information is not protected at all.”
In other words, it’s almost certain that the Health Insurance Portability and Accountability Act, known as HIPAA, would not apply.
The other limitations, such as they are, come from two sets of laws. The Federal Trade Commission (FTC) and state attorneys general can prevent advertisers from sending false and misleading ads; they can also stop advertisers from lying about what information they are tracking and what they plan to do with it once collected.
The FTC did not reply to Rewire’s questions in time for the publication of this story. However, the commission does not have jurisdiction over nonprofits, so it is highly unlikely that it could take action in this case.
The second set of laws concern user consent. Companies like Verizon and AT&T, known as carriers, are required to get affirmative consent before using “Customer Proprietary Network Information” gleaned through cellphone towers—including call records and location—for marketing. Apps don’t use network information, but rely instead on the GPS built into phones. They also need to obtain affirmative consent to collect and use information for marketing.
Obtaining that consent is easier than many consumers may think.
“The reality of this stuff is that no one’s asking what marketers will do with their information when they click, ‘I Agree,’ when an app asks if it can use their location,” Hoofnagle said. “If one consents to that tracking, and consents for it to be used for advertising purposes, that’s pretty much the end of the story.”
Certainly, most people wouldn’t imagine that by agreeing that, say, Yelp, Snapchat, Tinder, or the New York Times could use their location, that marketers could then use the same information for the very different purpose of figuring out whether they are seeking sensitive medical services.
Hoofnagle says that such use is perfectly legal, as long as companies don’t lie about what information they’re collecting—even if those disclosures are buried in fine print.
For his part, John Flynn is confident that his campaign is within legal bounds.
“I have worked with pharma, medical recruitment and many others where we mobile geo-fenced medical centers without a problem,” he wrote in an email to a potential client. “Bethany’s campaign targeted just medical centers and there was [sic] no issues. RealOptions in the San Jose area is presently targeting colleges and medical centers without issue.”
In the absence of robust legal limitations in the United States, advertisers have organized into self-regulatory bodies to police themselves, acutely conscious that examples of egregious privacy violations could spark a public backlash, and lead consumers to block ads and to opt out of targeted marketing.
Lindsay Hutter, a spokesperson from the Direct Marketing Association (DMA)—a New York-based group that represents direct marketers—said in an email statement to Rewire:
A key pillar of DMA’s work is to ensure that data-driven marketers conduct their work on an ethical basis, respecting the private information of consumers. This is particularly true for sensitive medical information about particular individuals, the use of which for marketing purposes without permission is against DMA’s Ethical Guidelines. Any location-based marketing should be opt-in, with the consumer notified that marketing offers are being presented due to their location.
Hutter did not provide a direct reply to our questions as to whether targeting women who might be seeking abortion care on behalf of anti-choice groups would be in violation of DMA’s guidelines.
It would, however, violate Facebook’s standards, according to Tom Channick, a company spokesperson.
“Our policies prohibit ads that make implications, directly or indirectly, about a user’s personal characteristics, including medical condition or pregnancy,” Channick said. “Deceptive or misleading advertisements are also prohibited.”
Flynn claims that he has a “relationship” with Facebook that allows him to “place mobile and digital ads in Facebook pages,” but Channick said the company could find no record of Flynn or his company ever using their platform.
Calling Flynn’s campaigns “really objectionable,” Hoofnagle said that these kinds of practices are toxic to the digital advertising industry, as well as the platforms—like Google and Facebook—that depend on advertising dollars.
He said this example drives home the fact that the nature of advertising has fundamentally transformed with the rise of the internet, and as smartphones have become ubiquitous.
“Advertising is a system of surveillance now,” Hoofnagle said. “It used to be billboards and television. Now it’s surveillance.”
Extremists Could Use Women’s Phones to Learn Their Names and Addresses
Surveillance has long played a central—and deadly—role in the efforts of anti-choice activists to intimidate women out of accessing abortion care, and to stop providers from making it available.
In the late 1990s, an anti-choice extremist created a website called the Nuremberg Files—in reference to Nazi Germany—which was a list of the names and addresses of doctors who provided abortions. Operation Rescue maintained a site called “Tiller Watch” that monitored the doctor’s whereabouts until he was murdered in the spring of 2009. Extremists have published “Wanted” signs with photographs of abortion providers. Activists in Texas stalk people entering local clinics, noting their physical appearance and license plates, hoping to determine which women went through with their abortion and whether anyone changed their mind, as well as to identify clinic workers. Many providers around the country report having been followed on their way to and from work.
Sasha Bruce, senior vice president of campaigns and strategy at NARAL Pro-Choice America, says that tagging the cellphones of women who go to abortion clinics falls within the pattern of intimidation.
“Intimidation frankly is the lowest threshold—that quickly turns to violence,” Bruce said. “That’s part of what’s troubling about this. There’s a real incitement that this information can contribute to.”
Bruce said she was alarmed in particular because Flynn was not just collecting information about what women looked at online, but also about their physical locations.
“If you have the smartphone ID, and then you can tie that to a location outside of the clinic, let’s say a home, that’s a real security threat,” Bruce told Rewire. “I worry about the extension of that—the desire of anti-choice activists to know who these staffers are, and who the women are.”
To be clear, there is no evidence to suggest that Flynn or his clients have or want to use geo-fencing to learn the real identities of women seeking abortion. But experts told Rewire that the potential for others to abuse the technology is a cause for alarm. In keeping with the view that transparency fosters security, Rewire has chosen to outline the ways this tracking could be misused.
In theory, when marketers gather information about individual smartphone users through methods like geo-location, that data is anonymized, meaning that it is not attached to a person’s name, but rather to a unique number known as an “advertising ID.” That is the number associated with the particular copy of the operating system that each of us has downloaded onto our smartphone. If you use a Google phone, your operating system is Android; for iPhone users, it’s your copy of iOS. Much of what you do on your phone can be associated with that advertising ID.
In most cases, marketers want to collect data from millions of potential customers, said John Deighton, a professor of marketing at Harvard Business School, in an interview with Rewire. The more data they have, the more ads they can send, which enhances their database.
“What your story is drawing to my attention is that these same surveillance technologies can be used at a much more micro scale,” he said. “You could imagine outright illegal use of geo-targeting: for example, geo-targeting a rich person’s house and getting an alert when they leave home.” That could, say, lead to high-tech burglary.
“Once you start realizing you can target desirable individuals, instead of being a big data function it becomes about tiny data,” Deighton said.
But if all of the data that marketers collect is supposed to be anonymized, how could bad actors—including anti-choice extremists—figure out the actual identities of the people they track?
The dirty secret of digital marketing is that it is in fact relatively easy to find out the real identities that are attached to our online IDs, according to experts who spoke with Rewire.
The most obvious way is simply to ask people for that information.
Both RealOptions and Bethany Christian Services require a person’s name and contact information in order to receive information online. Once a woman enters her name, email, home address, phone number, or ZIP code, that information is tied to her advertising ID, and Flynn could potentially marry that ID to all data associated with it and store it in what he calls his databank.
There are, however, plenty of less aboveboard methods to learn the name attached to an anonymous ID.
Any site or app that uses a profile with your name and any other information—Facebook, dating services, banking apps—can link your device, and your advertising ID, to the real you.
Legitimate services would not hand over personally identifying information willingly, but there are many instances of such information being made widely available. The cyber attack on Ashley Madison, the dating site for married people seeking extramarital partners, resulted in the release by hackers of the personal information of 32 million of the site’s users, revealing the potential for profile-based sites to be targeted.
Even without sophisticated hacks on established sites, bad actors can use techniques known as “social engineering” to learn the personal identities associated with advertising IDs.
For instance, if an anti-choice group wanted to learn the identity of women seeking abortions, instead of sending them ads for CPCs, they could send ads that seemed unrelated to abortion—for a competition to win $500, or for help with student loans—that tricked women into entering their names, email addresses, and any other information required by the form. Any woman who filled out the form would have unwittingly handed her name to anti-choice activists.
That would allow anti-choice groups to literally see women’s whereabouts in real time, said digital marketing experts who spoke with Rewire anonymously because they were not authorized to speak with the press. They described marketing software that allows them to see targeted individuals’ locations, the same way you can see yourself as a blue dot on a smartphone map. If certain people were seen at an abortion clinic regularly—say, during work hours—Flynn or his clients might even be able to infer that they work there.
“That’s what scares me about your story,” said Deighton. “Now we have an incentive to track people that isn’t the usual big data incentive.”
The question naturally arises: What can abortion providers and the women they serve do to fend off these digital affronts?
The simplest measure Planned Parenthood, or any other abortion provider, could take is to tell patients to leave their smartphones at home or in the car. If that isn’t possible or practical, the best advice is to turn off their GPS and log out of all apps before they come to a clinic.
It’s a simple step, but one that many people either won’t or don’t take, said Cooper Quintin, a technologist at the Electronic Frontier Foundation (EFF), a San Francisco-based organization dedicated to preserving fundamental rights in the age of technology.
“The way we need to fight back against this is by blocking these things that are tracking who we are and where we are and what things we’re looking at,” Quintin told Rewire. EFF considers location-based tracking to be a serious threat to privacy.
“Right now, there’s this big ideological debate about ad-blocking. What’s missing from that debate is the idea of blocking things that are tracking you. Tracking people and building up these databases of what they read online, where they go in the real world, linking their online behaviors to their offline purchases and real world behavior—these things can have real-world effects, and this is a horrific example of how this can affect people in a way that’s much more important than seeing some annoying or creepy ads that follow you around.”
Editor’s Note: Watch our video for info on how to avoid location-based tracking.