Commentary Abortion

SCOTUS’ Decision on Fake Clinics Is About More Than Abortion for Independent Providers

Jennifer Thibodeau

With the courts refusing to curb the deception coming from fake health centers, it’s more important than ever that advocates loudly and unapologetically share the truth about abortion care, independent clinics, and the human right to health care.

Last week, reproductive rights in the United States were dealt two potentially catastrophic blows: the U.S. Supreme Court granted fake health centers the freedom to deceive people seeking reproductive health care, and Justice Anthony Kennedy announced his retirement from the court. Because Kennedy was considered the critical “swing” vote when it came to preserving the right to abortion care in this country, the announcement prompted advocates to start thinking about what they will do if (or when) Roe v. Wade is overturned.

But Roe doesn’t need to be on the cusp of extinction for us to have to grapple with this question. As many have noted, the constitutional right to abortion is already functionally out of reach for many in this country, and states have been chipping away at access to abortion care for decades. The NIFLA v. Becerra decision simply represents one more obstacle in the way of those seeking reproductive health care.

Independent abortion care providers—and their patients—have been navigating those obstacles for decades, and this decision could be disastrous for both. As someone who works on behalf of such providers, it is clear to me just how dangerous silence and misinformation about abortion can be. It keeps people from getting the care they need, when they need it, regardless of the decision they are making about pregnancy. And with the courts refusing to curb the deception coming from fake health centers, it’s more important than ever that advocates loudly and unapologetically share the truth about abortion care, independent clinics, and the human right to health care.

So here are just a few points of clarity about these issues to set the record straight.

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Which clinics actually have the right to free speech?

At the heart of the NIFLA v. Becerra case was whether fake women’s health centers in California could be required to post notices letting clients know whether they are a medically licensed facility and about their right to affordable, low-cost reproductive health services. In a perverse defense of “freedom of speech,” the Supreme Court ruled that such transparency is not required.

Fake women’s health centers lure pregnant patients through their doors, where they use deception and shame to delay or push prenatal and abortion care entirely out of reach. Allowing fake women’s health centers to mislead those seeking pregnancy-related care—while politicians continue to undermine and punish legitimate providers—is medically irresponsible.

Of course, none of this exists in a vacuum. While the Supreme Court has given fake clinics the right to lie, there are currently a number of states that legally require medical providers to misinform patients about abortion. At least 20 states require providers to give patients medically inaccurate information as part of the abortion care counseling process—including misinformation about breast cancer, mental health, fertility, and the false claim that an abortion can be “reversed” (a myth that we at Abortion Care Network called out using billboards in California). These “scripting laws” have no medical benefit for patients—with inaccurate information, how could they? Instead, scripting laws are a way for anti-abortion politicians to interfere in the provider-patient relationship by forcing providers to stigmatize abortion and undermine their own medical expertise.

Unfortunately, the NIFLA v Becerra decision does not end the practice of forcing legitimate health-care providers to lie to their patients. Why? Because Justice Clarence Thomas made it clear in his opinion that real abortion clinics and fake health centers are held to different standards. According to David S. Cohen, a law professor at Drexel University, “Thomas wrote that speech incidental to a medical procedure is different than speech that’s just speech—the government can freely regulate the former, but not the latter. In other words, fake clinics have real free speech rights [because they don’t provide real medical care] while real clinics have fake free speech rights,” Cohen told me in an email.

That doesn’t mean clinics won’t fight back. Abortion care providers are motivated by a deep respect for their patients’ dignity and autonomy, and that means they have a genuine interest in ensuring that patients receive unbiased, medically accurate information. “It’s going to be really hard to challenge these laws as a form of compelled speech, but they can still be challenged in other ways,” explained Cohen. “Planned Parenthood v. Casey says that these informed consent laws have to give ‘truthful, non-misleading information,’ so clinics can still challenge them in that way.” While legal challenges may be tough with the shift in the Supreme Court, abortion rights advocates are even tougher: In the last month alone, we’ve seen abortion care providers challenging long-established restrictions in Texas, Indiana, and Virginia.

Independent clinics and their patients suffer the most.

We also know that independent abortion care providers and their patients are particularly vulnerable to fake clinics, because fake clinics rely on misleading information—including mimicking the names of community-based clinics—to get clients through their doors. To a degree, they are able to do this because independent clinics often lack highly visible branding and ubiquitous name recognition. While every provider of reproductive health care is under fire right now, independent clinics—which typically funnel every cent into patient care and can rarely afford communications, outreach, fundraising, or organizing staff—are left with few defenses.

It’s important that people connect with, learn about, and tell others about the independent clinics in their communities. Fake clinics can’t trick people into walking through their doors if everyone in the community knows about their local independent clinic.

It’s about more than abortion.

Abortion advocates have been trying to raise awareness about fake clinics for years, and the anti-abortion organizations that fund and operate fake clinics are open about their opposition to abortion. One of the most dangerous tactics fake clinics use is forcing patients to delay care until it’s too late—either by luring them away from appointments at legitimate clinics, or by giving them incorrect information about their pregnancies so that they are pushed beyond the window of time when they can legally access abortion care.

But fake health centers—and the legislators seeking to cut funds to real clinics—endanger the health and safety of folks seeking any reproductive health care at all, including birth control, prenatal care, and abortion. Research suggests that plenty of the patients walking through the doors of fake clinics intend to continue their pregnancies. And yet these unlicensed facilities, which claim to care about women and babies, are performing ultrasounds and giving patients inaccurate results that can result in heartbreak and loss for those with wanted pregnancies.

Our country is in the midst of a maternal mortality crisis, and that crisis disproportionately affects women of color and poor women—the very people these fake clinics target. If we are to take maternal and child health seriously, we must demand better of any center that claims to serve pregnant clients.

When it comes to exposing fake health centers, we tend to shout about the threat to abortion access because abortion care is already stigmatized and isolated, accurate information is already so difficult to find, and abortion care is currently unaffordable for many. But we know that people who have abortions and people who have children are the same people at different points in their lives—and that everyone needs accurate information and health care they can trust, no matter what decision they make about pregnancy.

It’s time to expose these fake clinics for what they are. And if the courts won’t hold them accountable, those of us who care about reproductive health, rights, and justice must.

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