What They’re Saying: News Stories on NIFLA v. Becerra
Today, the Supreme Court heard oral arguments on a commonsense California consumer protection law, the Reproductive FACT Act. The FACT Act is a straightforward law that provides women with clear, accurate and timely reproductive health information. Please see below some excerpts from the news coverage of the oral arguments.
Justice Sotomayor also pointed out the advertising practices of some of these unlicensed clinics. She observed that on the Fallbrook Pregnancy Resource Center’s website there is “a woman on the home page with a uniform that looks like a nurse’s uniform in front of an ultrasound machine.”
The site further states, “Fallbrook will educate clients about different abortion methods available, and describe in medical terms different abortion procedures.”
Under traditional legal principles, the Supreme Court would acknowledge that there is an important state interest in letting women know of programs available to them. Moreover, because of the factual nature of the notice and the ways it can be disseminated, the 1st Amendment “burden” on the crisis pregnancy centers — the extent to which the statute restricts free speech or freedom or religion rights — is extremely minimal.
In briefs filed by women’s groups and cities such as Los Angeles and New York, there are descriptions of centers that open in the same buildings as abortion clinics and station workers outside to intercept women seeking the procedure.
The briefs cite ultrasound exams conducted by workers with no medical training who proclaim “the baby healthy and perfect.” Some women said tests results were delayed until it was too late for them to receive abortions.
The California Legislature found that the roughly 200 centers in the state used “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.”
Justice Sotomayor said she had examined one center’s website and found it misleading. She said it showed what appeared to be a nurse in front of an ultrasound device, mentioned abortion and indicated that the center complied with medical privacy laws.
“If a reasonable person could look at this website and think that you’re giving medical advice,” she asked, “would the unlicensed notice be wrong?”
Crisis pregnancy centers are “fake women’s health centers” that try to look like clinics that offer abortion and birth control, even choosing names like Informed Choices to muddy the waters, said Amy Everitt, the California director of NARAL Pro-Choice Amerca.
“But they only have one option, to carry a pregnancy to term. And they have one agenda, to stop women from accessing abortion care and birth control,” Everitt said in her office in San Francisco.
Estimates of the number of crisis pregnancy centers run from 2,500 to more than 4,000, compared with fewer than 1,500 abortion providers, women’s rights groups said in a Supreme Court filing.
Gray said she felt misled because “I thought I was going to a medical facility that would give me honest and accurate information that I, as a woman, felt I needed and deserved.”
She decided to talk about her experience so that other women might get the help they need. “I don’t want more women deceived by these fake women’s health centers,” Gray said.
The background to this case is the simple fact that states “compel” all kinds of professional, commercial, and medical speech to prevent misinformation. And speech to pregnant women about abortion may be the most regulated single kind of speech in America. Remember Dr. Parker’s required speech quoted above. The state of Mississippi compelled him to bring up the issue of breast cancer risk even though he believed there is no additional risk arising from abortion.
California told the justices in legal papers that some centers use incomplete or false medical advice to try to prevent women from having an abortion. Some resemble medical clinics, down to lab coats worn by staff, to try to confuse women into thinking they are at a facility offering all options, the state added.
On the other side, California Attorney General Xavier Becerra argues that about 700,000 women in the state become pregnant each year and about half of the pregnancies are unintended. The law, Becerra argues, shouldn’t trigger heightened scrutiny from the courts because it doesn’t require anyone to refer a client for an abortion but simply ensures that women will have the information they need “at a critical moment.”
“The First Amendment does not bar states,” Becerra writes in court papers, from such a “carefully neutral” notice.
The US Court of Appeals for the 9th Circuit upheld the law as constitutional, saying that California had the right to regulate “professional speech” and had a valid interest in protecting public health access. Despite what NIFLA claimed, the judges said, the signs required by the law do not encourage abortion but provide information about state services.
It’s fitting that NIFLA v. Becerra will be the first abortion case to land on the Supreme Court’s docket in the Trump era. The CPCs are Trumpish things― hostile to expertise and insincere about their supposed mission. (Meanwhile, Trump’s administration is slashing funds from family planning and teen sex ed programs that have been shown to reduce unintended pregnancies and redirecting that money to abstinence-only programs, which don’t work.)
Didactic pregnancy centers, which date back to the 1960s, share Trump’s antagonistic relationship to facts. They push the myths that abortion leads to suicide and drug addiction, that condoms don’t work because they’re “naturally porous” and that birth control causes hair loss, memory loss, headaches, weight gain and breast cancer. Their advertisements ― often carrying slogans like “We inform, you decide” ― give the illusion that they’re disinterested purveyors of expert information and medical treatment, but in fact they are mostly interested in lecturing women about sex and abortion.
Mel G., 40, from southeast Missouri, told HuffPost that she visited a CPC at the age of 13 because her grandfather had been sexually abusing her and she feared she was pregnant. She lived about 65 miles from St. Louis and was limited to traveling by bike, so the religious-based pregnancy center was the only place she could find within biking distance that advertised pregnancy services.
When Shania went to the Hartford GYN Center for her abortion appointment, she and her mother walked up the path to the clinic where they were approached by a woman. That woman led her through a door into what Shania and her mom thought was the abortion clinic. Once inside, the woman sat Shania down and started telling her and her mother all about how sinful abortion is. As Shania later told the story to abortion counselor, who then testified about the story to the Hartford City Council: “She was saying stuff like if I get a surgical one I might not make it out alive. She said that someone had half a baby left inside her after. She was ignoring what I was saying and just kept saying all this stuff.” Shania and her mother realized they were in the wrong place, so asked where her abortion appointment was. The woman told them there was no abortion clinic there.
This was an outright lie – there was an abortion clinic mere feet away from where they were. Shania and her mom were beckoned into the Hartford Women’s Center – one of many so-called “crisis pregnancy centers” which specialize in talking women out of ending pregnancies, also sometimes called “fake women’s health centers” or “fake clinics” by their critics – that shares a walkway with the Hartford GYN Center, a real abortion clinic. Women walking to the abortion clinic turn one way at the end of the walkway to enter the clinic, but if they turn the other way, as Shania and her mom did when the woman directed them to do so, they enter the crisis pregnancy center.
Had that signage existed in Texas, it’s probable that Caitlin would’ve realized she wasn’t in a licensed medical center and left before facing their rigid treatment. When she got there, a woman at the front desk of the center had scrubs on, and she was in what looked like a regular exam room when she went to be told the results of her tests. She didn’t have reason to question the medical nature of the facility until a woman interrogated her about her sex life, she says, asking about the name of her partner and if he lived in town, as well as when she lost her virginity, how many sexual partners she’d had, and if she had been molested as a child. After declining to answer the questions, the woman told her she tested positive for chlamydia, but didn’t provide information about treatment. That’s when Caitlin got up and left in tears. Elite Daily asked NIFLA about CPCs’ provisions of STD tests but did not hear back at time of publication.
At the heart of the debate is the balance between a state government’s right to protect consumers by regulating what’s known as “professional speech,” versus the right of individuals to say (or not say) whatever they want. If you were paying attention in history class, you know that there are some limits to your First Amendment rights. While the government cannot restrict or compel people’s political or religious speech, it can regulate other types of speech, such as making sure lawyers disclose certain information about their services in advertising or that doctors disclose information about a procedure’s risks, explains Clay Calvert, PhD, director of the Marion B. Brechner First Amendment Project at the University of Florida.
The court’s ruling is bound to have an effect on how abortion and speech have intersected in states for the last few decades.NARAL estimates that there are roughly 2,000 crisis clinics in the United States, a number that far exceeds abortion providers. Since most are unlicensed, there is no accurate way to count them or even regulate them, giving them carte blanche to mislead pregnant people.
Their unchecked operation has real consequences for how people obtain access to essential healthcare in this country. They’ve proven hard to regulate, a number of cities, including Baltimore, have tried before and largely proven unsuccessful, leaving crisis clinics free to misinform. If NIFLA wins, crisis clinics would be allowed to continuing operating as they always have, without providing basic information on resources for reproductive healthcare.
If the Supreme Court agrees with NIFLA, there could also be a setback to the anti-abortion movement. According to the pro-choice Guttmacher Institute, 18 states mandate that women are given anti-abortion counseling before undergoing the medical procedure. A Slate analysis indicated that a ruling against California may “lead to the invalidation of anti-abortion counseling laws across the country on similar First Amendment grounds.”
For Lauren, the case is more personal. She told Teen Vogue that it is a “really traumatic experience to be coerced into thinking you only have certain options.” This Supreme Court case could decide if more women like her are allowed to be deceived.
“It’s important because women, especially young women seeking help, deserve to know all the information and be told about every option out there,” Lauren told Teen Vogue. “Women do not deserve to be lied to or made to believe they’re getting advice from people who aren’t even medical professionals.”
There’s no reason, save for naked conservative politicking, why forcing an abortion provider to pass along anti-choice messages is fine but asking a fake clinic to simply inform people of what they really are — not a medical clinic, not a place to get abortions — isn’t.
Because of that, this case might just be a win-win for reproductive health. The court could invalidate California’s act, saying it unconstitutionally forces the fake clinics to say something they don’t agree with. Doctors would then have an opening to push back against requirements to deliver outright falsehoods about abortion.
For more information about the case, please visit www.endthelies.com.