Analysis Law and Policy

Two Years After Rule Change, NYC Issues First Fines Against Anti-Abortion Fake Clinics

Claire Tighe

A measure that made "pregnancy service centers" tell clients if the facilities have medical staff, or don't offer or refer for services such as abortion or birth control, was hampered by lack of clear, accessible information about how to report violations.

The New York City Department of Consumer Affairs (DCA) issued its first fines to an anti-abortion fake clinic this winter, even though it adopted a rule almost two years ago saying it would do so. In December, the city issued $1,500 worth of fines to EMC Frontline for failing to post required signage and disclosures at their facility and online.

The signage is meant to alert clients seeking abortion and emergency contraception about what services they can and can’t receive at a “pregnancy service center” (PSC), which try to convince women out of getting abortions and spread false information about the procedure. The confusion is especially precarious for pregnant women who want an abortion—a time-sensitive procedure. Planned Parenthood NYC estimates that there are about 12 of these centers in New York City. EMC Frontline, based in the Bronx, operates facilities in four New York City boroughs.

In 2011, the city passed Local Law 17, creating specific restrictions for “pregnancy services centers”—facilities that aren’t regulated by the Department of Health but provide ultrasounds, pregnancy tests, and “counseling.” The law requires that these centers clearly disclose whether there is a licensed medical provider on site; whether they provide abortion, emergency contraception, and prenatal care; or if they provide referrals for these services.

In May 2016, the city passed a rule requiring this disclosure be made on an 11 x 17 inch sign posted at the entrance and in any area where clients receive services; shared orally with their clients; and included on every page of their website, each post on social media, and in their advertisements. According to the rule, the fake clinic must state in English and Spanish: “This facility does not have a licensed medical provider on-site to provide or supervise all services.” If the facility failed to post the disclosure, it would be fined by the city.

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“The rulemaking was very specific,” said Danielle Castaldi-Micca, director of political and government affairs at the National Institute for Reproductive Health (NIRH). “You shouldn’t be allowed to hide a really important disclosure.”

Violating the rule can cost clinics between $200 and $1,000 the first time, and between $500 and $2,500 for subsequent violations. Three fines in two years could temporarily close the facility for up to five days. After paying the fine, the fake clinic has the opportunity to appeal in a hearing in the DCA’s administrative court. The court will determine whether or not the fake clinic is guilty, and the facility has the right to appeal a second time.

According to Castaldi-Micca, members of the public can report lack of proper signage and information by calling the city’s 311 nonemergency number or completing an online form. She explained that, after a significant volume of complaints, the DCA would likely investigate.

In the almost two years since the rule took effect, only two fines—the ones for EMC Frontline—have been issued. EMC Frontline was fined twice, for failures to post the signage disclosure in person and include it online. Three notices of violation were issued to another well-known facility, Avail NYC. Two violations are for signage and one is for failure to keep client information confidential. As of this writing, Avail’s hearing is pending, and whether it’s guilty or not guilty has yet to be determined by DCA’s administrative court.

Elizabeth Adams, director of government relations at Planned Parenthood of New York City, said that between the original passing of the rule and the first fines being issued, the Department of Consumer Affairs wasn’t receiving complaints from 311, which could have prompted an investigation.

“In the period since the law was enacted, several complaints had been made that hadn’t gotten to the investigation staff,” Adams said. “From what the Department of Consumer Affairs has said, there was an internal disconnect between complaints made and investigations that went out.”

The Department of Consumer Affairs said in an email statement that “as of November 2017, DCA has received 23 complaints alleging that pregnancy service centers are failing to post the licensed medical provider disclosure. As of January 2018, DCA conducted 26 inspections, including all locations reported by the complaints.” Two of the inspections resulted in the EMC fines.

But many patients—and even health-care professionals—don’t even realize they can complain about an anti-choice fake clinic in the first place.

“A lot of doctors and nurses who are providing abortion don’t even know that there is such an ordinance or what options we have for reporting,” said Dr. Anne Davis, consulting medical director at Physicians for Reproductive Health. “There is so much stigma about abortion. People don’t want to call up and say, ‘Oh, this happened to me.’”

The number of complaints may be relatively low because affected people don’t know the law and because the online form to report can be difficult to find.

During a phone complaint, the 311 representative has to be familiar with Local Law 17 and understand that the complaint should be sent to the Department of Consumer Affairs. That can be confusing, since the complaint is about a center that calls itself a clinic or can be perceived as a health center.

Castaldi-Micca said that until at least September 2017, complaints about the centers were likely not getting logged to the Department of Consumer Affairs for this reason. Chances were that the complaint was being logged to the Department of Health or another agency instead.

“I think there were some stumbles with the keyword process,” she said. “In the legislation, [the centers] are called limited service pregnancy centers, so that was the original keyword. But that is legislative language, not language the general public uses. We worked with DCA and 311 to get what we think are more logical keywords to help ping that more appropriately. 311 is an enormous system, and it’s hard to do.”

The organization she works for, NIRH, worked to ensure that other keywords, like “crisis pregnancy center,” “abortion,” and “free pregnancy test” in combination with words like “deceived” or “fake” or “confused” were recognition words for the 311 complaint.

DCA did not respond to a comment on whether their inspectors and 311 staff have training on Local Law 17.

EMC Frontline founder and President Chris Slattery, in the meantime, plans to appeal his charge in the DCA’s administrative court.

DCA can also enforce Local Law 17 through proactive inspections, which prompted the fining of EMC Frontline last fall.

In a December administrative hearing and a recent Rewire interview, Slattery said his facilities are exempt from Local Law 17 because they do not meet the legal definition of pregnancy services centers (which includes multiple factors such as offering pregnancy tests and having medical supplies or examining rooms) when he doesn’t have medical supervision at his center.

“We were providing medical supervision of the medical services we were providing,” Slattery said. “On the days that we did not have medical supervision, we were exempt from the law.”

He said that when his center performs ultrasounds, he has medical supervision and therefore doesn’t need to post the disclosures saying there is no medical supervision. When there aren’t clinicians, he claimed, the facilities still don’t meet the criteria to be classified as pregnancy services centers.

The hearing officer did not accept Slattery’s defense. EMC Frontline was found guilty on the two charges. After the inspections last fall, Slattery said that the DCA inspectors told him that the EMC Frontline “would be inspected on an every two-month basis.”

“It is my understanding that the problem at that clinic has not been rectified,” said Castaldi-Micca. “That says to me that there should, in fact, be more fines.”

The question of whether many of these facilities meet the legal definition of a “pregnancy services center” may be another reason the number of fines has been low.

An email statement from the DCA said about their inspections that “the majority of the facilities visited do not provide ultrasounds, sonograms, or prenatal care, meaning they must be analyzed for the appearance of a licensed medical facility. After careful consideration of the relevant factors, it was determined most of the facilities did not meet the legal definition and were therefore not required to post the disclosure.” Documents gathered from several other centers are currently under review by the DCA attorneys to determine whether the sites met the legal definition of a pregnancy services center.

But Elizabeth Adams isn’t sure that tells the full story. She says that in a New York City Council hearing on the matter in November 2017, DCA General Counsel Michael Tiger stated that DCA hadn’t gone past the front room in some of the facilities to assess if they meet the full definition of a pregnancy services center.

“I would challenge the notion that a lot of these places don’t meet the legal definition of crisis pregnancy centers,” Adams said. “They didn’t conduct a full investigation. They asked to have access into the facility and were told [by the centers], ‘No, you can’t go beyond here.’”

Adams says she thinks it’s quite possible that the facilities inspected had rooms and equipment that would have required them to follow Local Law 17 and post the required signage.

Reproductive health groups say that this kind signage is important because it helps women who might not know that the center isn’t a medical center. For women seeking abortions, the difference between a sign and no sign can be carrying an unwanted pregnancy to term.

The disclosures about services were specifically designed to protect consumers from deception. But it is also an effort to look out for women who are especially vulnerable to misinformation.

Davis, of Physicians for Reproductive Health, says that women of color, lower-income women, recent immigrants, and people with limited English and health literacy are most likely to be vulnerable to the confusion between an abortion clinic and a fake clinic.

“They are more likely to need abortion because they are more likely to have fewer resources.”

Adams said that while many fake clinics are still not in compliance, the recent fines show that the government is taking a step toward oversight.

“The fact that we have seen violations of this law issued shows that it is enforceable and that these facilities are violating the law.”

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