Experts call for crisis pregnancy center regulation to combat free speech concerns and medical misinformation.
Crisis pregnancy centers (CPCs) are non-profit organizations that provide free counseling and prenatal care to pregnant individuals. Many of these centers—which usually have an explicit pro-birth mission—have ties to religious groups and anti-abortion organizations.
CPCs frequently market themselves as full-service medical clinics and promise to provide free pregnancy tests, ultrasounds, and comprehensive counseling on all pregnancy-related options. In reality, most CPCs lack medical facility licensing, offer limited medical and social services, and present pregnant people with only two options: parenthood or adoption.
Because CPCs generally lack medical licenses and offer their services free of charge, they are often exempt from federal and state regulations governing medical ethics and patient privacy, such as the Health Insurance Portability and Accountability Act (HIPAA). In addition, although some staff at CPCs dress in scrubs or white coats, they are typically volunteers without formal medical training who may fail to disclose if the CPC is not a licensed medical facility.
Communities of color—which frequently face a shortage of health care providers, socioeconomic barriers, and difficulties accessing health insurance—are particularly vulnerable to the risks CPCs pose. Individuals in these areas are confronted with higher rates of unintended pregnancies, and in some communities of color, CPCs often become the only accessible provider of prenatal and reproductive health services.
Critics claim that CPCs use deceptive tactics to attract patients and encourage them to remain pregnant. They also argue that CPCs prevent patients from making informed decisions about their reproductive health. For example, CPCs often make factually inaccurate claims about contraception and abortion to dissuade pregnant people from considering abortion.
Attempts to regulate CPCs’ controversial practices have fallen short. For example, in 2015, California enacted the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT), which mandated disclosures about whether CPCs were medically licensed facilities. The statute also required CPCs to tell patients about the availability of free and low-cost family planning services elsewhere in the state.
Three years later, however, the U.S. Supreme Court struck down the FACT Act in National Institute of Family and Life Advocates (NIFLA) v. Becerra. The Court vindicated CPCs’ complaints, finding that the Act infringed on the centers’ First Amendment rights.
After NIFLA, CPCs continue to proliferate. Today, more than a dozen states fund crisis pregnancy centers using taxpayer dollars, with some contributing as much as $38 million.
This week’s Saturday Seminar highlights expert research on CPCs’ impacts on free speech and access to health care.
- The Supreme Court’s holding in NIFLA “effectively neutralizes” constitutional protections around pregnant people’s access to accurate information about reproductive choices, Bradley Queen of the University of California, Irvine claims in a First Amendment Studies Traditionally, he writes, governments could regulate “false commercial speech” in part because of commercial speech’s potential to cause harm if untrue. NIFLA, however, avoids classifying the nature of CPCs’ speech and instead focuses on the state’s intrusion on the ideology of the pro-life centers. Even though pregnant people “have been misled and harmed” by CPCs’ deceptive advertising, Queen argues, NIFLA removes the legal basis for a government to “regulate false, misleading, and deceptive information” about reproductive services.
- In NIFLA, the Supreme Court struck down the FACT Act because the law obligated CPCs to promote abortion services—“the very practice that they are devoted to opposing.” But in an article published in the Buffalo Law Review, Mark Strasser of Capital University Law School argues that the Court’s rationale is inaccurate because the FACT Act only required CPCs to convey factual claims about abortion services—which did not threaten CPCs’ anti-abortion position. Strasser suggests that the Court’s reasoning may undermine state abortion regulations that require doctors to make statements designed to make abortion less attractive to patients, because NIFLA “implied that the state could only require dissemination of factual noncontroversial information.”
- In a Fordham Law Review article, the University of Colorado School of Law’s Helen Norton asks what First Amendment law would look like if courts evaluated regulations on abortion providers by taking into account the interests of people seeking information or care. Norton claims that in cases such as NIFLA, the Supreme Court solely focused on the CPCs’ interests as speakers. For example, she notes that NIFLA only considered what health care providers wanted to discuss—or not discuss—instead of how information that CPC employees provides would affect pregnant people who receive this advice. The government can already regulate similar commercial speech aimed at consumers as well as speech in campaign finance scenarios, where campaigners must consider a listener’s “informational interests,” according to Norton. Applying this framework to abortion services would allow governments to require health care providers to “deliver accurate and relevant information” when speaking with pregnant people.
- Mandatory abortion counseling raises more significant First Amendment concerns than CPC disclosures do, argues Caroline Mala Corbin of the University of Miami School of Law. In an article published by the Alabama Law Review, Corbin discusses how “compelled speech may undermine free speech goals and values by chilling speech, distorting the discourse, or intruding upon the autonomy of speakers or audiences.” Compelled speech—“speech the government forces a private entity to say”—has come before the courts on various occasions through mandatory abortion counseling and CPC disclosure issues. Corbin argues that regulating the free speech of abortion providers undermines doctors’ autonomy and treats patients as incapable of making decisions about their reproductive health.
- In a recent article in the Columbia Journal of Gender and Law, attorney Kate Vlach argues that state attorneys general should use consumer protection statutes to curtail CPCs’ deceptive activities such as misrepresenting the services a center provides, making misleading statements, or withholding relevant information. Vlach notes that most states have statutes designed to protect consumers from “deceptive practices in the sale or offer of goods and services.” These statutes empower state attorneys general with investigation and enforcement tools, which Vlach suggests give these officials “legal, practical, and symbolic advantages” in challenging CPC practices.
- Pregnant people who undergo examinations or ultrasounds under CPCs’ false pretenses should be able to advance a claim of battery—“the intentional causation of harmful or offensive contact with another’s person without that person’s consent”—against these entities, Teneille R. Brown of the University of Utah S.J. Quinney College of Law In a recent article in the Yale Journal of Law and Feminism, Brown offers “a novel way to regulate CPCs’ deceptive practices” in the wake of various legislative attempts to do so through tort law. By allowing pregnant people to sue CPCs for intentional torts of battery, Brown suggests that such a private cause of action “puts the injured party in the driver’s seat” and would return “informed consent law to its ethical and legal roots.”
The Saturday Seminar is a weekly feature that aims to put into written form the kind of content that would be conveyed in a live seminar involving regulatory experts. Each week, The Regulatory Review publishes a brief overview of a selected regulatory topic and then distills recent research and scholarly writing on that topic.