Analysis Law and Policy

Anti-Choice Clinics Claim Their Deceptive Business Practices Are Free Speech. Will Justice Kennedy Agree?

Jessica Mason Pieklo

With a conservative U.S. Supreme Court majority that seems at least open to the idea of allowing evangelicals to weaponize the First Amendment, a win for reproductive rights advocates here is not a given.

The state of California has more than 200 “crisis pregnancy centers” operating within its borders. These anti-choice businesses are set up to look like comprehensive reproductive health-care facilities; in reality, their purpose is generally to direct people away from abortion clinics and through their doors, where they can pressure clients to carry their pregnancies to term.

These businesses are almost always religiously affiliated and promote anti-contraception and anti-abortion viewpoints. They have a documented history of using deceptive advertising practices to target poor people and communities of color. Next week, the U.S. Supreme Court will consider arguments in National Institute of Family and Life Advocates v. Becerra that these business practices—which the centers deny are deceptive—are constitutionally protected free speech.

In 2015, California lawmakers passed the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act, or the Reproductive FACT Act, which amounts to a mandatory disclosure bill. Lawmakers passed the measure in response to allegations that businesses posing as reproductive health-care clinics were providing clients with misleading and sometimes dangerously inaccurate information about their pregnancies and their options. 

During hearings on the bill, the legislature found that the ability of California patients to receive comprehensive and accurate information about their reproductive rights is hindered by the existence of these centers. According to early legislative analysis done on the bill and cited in court documents, these centers employ “intentionally deceptive advertising and counseling practices [that] often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.” 

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The Reproductive FACT Act disclosures are extremely straightforward. Facilities that are licensed as pregnancy centers by the state must display a brief statement disclosing that California offers access to free and low-cost birth control and abortion care, along with a number to call for more information. Unlicensed centers must disclose, in up to 13 languages, that they are not medical facilities and do not offer medical care. 

That’s it.

Attorneys from Alliance Defending Freedom (ADF), the anti-choice, anti-LGBTQ litigation mill representing the centers challenging the law, claim those disclosures are too much, though. They sued before the law could take effect, arguing the disclosures are state-compelled “pro-abortion” speech. Both a lower court and the Ninth Circuit Court of Appeals disagreed and upheld the law. In November, the Roberts Court agreed to step in and hear ADF’s claims.

This should be an easy case for the Court to settle—because, quite frankly, there is no compelled speech here. Licensed centers are simply required to post a notice of the existence of a state program with the number to call for more information. Unlicensed centers must disclose the fact that they are not licensed. These are disclosures of facts, not political opinions on abortion and contraception.

And unlike some state laws that mandate abortion providers read a government-sponsored script to patients when performing an ultrasound, or others that require doctors inform patients incorrectly that abortion causes breast cancer, the California Reproductive FACT Act doesn’t require employees at these centers to say a single word. 

But with a conservative Court majority that seems at least open to the idea of allowing evangelicals to weaponize the First Amendment, a win for reproductive rights advocates here is not a given. As we saw in McCullen v. Coakley, the case challenging the constitutionality of a Massachusetts buffer zone, the justices were susceptible to the anti-choice framing of “plump grandmas” looking to “counsel” patients out of having an abortion in the context of whether the state could enforce certain protest restrictions.  And as Justice Anthony Kennedy showed in his majority opinion in Gonzales v. Carhart when he helped create “abortion regret syndrome,” they are also susceptible to the anti-choice narrative that it is abortion providers, not fake clinics, preying on vulnerable people. In many ways, NIFLA v. Becerra brings these two narratives together in its challenge to the California law. 

That doesn’t mean the Court will buy it, though. As with Whole Woman’s Health v. Hellerstedt, the case that struck down Texas anti-abortion requirements that doctors have admitting privileges at local hospitals and that clinics meet the same architectural standards as stand-alone surgical centers, evidence in these cases still matters. California had plenty of evidence of the harm these centers were causing when it first passed the Reproductive FACT Act and responded with a narrowly tailored law that doesn’t prevent anti-abortion centers from operating. It just requires they operate in a transparent fashion.

The Court hears oral arguments on March 20 and a decision is expected later this summer.

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