Should Pro-Life Clinics Have to Post Information About Abortion?
The Supreme Court will consider the rights of crisis pregnancy centers, which help women "imagine what the choice of life would be like."
By Emma Green
A pro-life activist at the Supreme Court in 2009 (Jonathan Ernst / Reuters)
Abortion is back in the Supreme Court this week. On Tuesday, the justices will hear a case on crisis pregnancy centers, the facilities established by pro-life organizations around the country to counsel women against abortion. In 2015, California passed the Reproductive FACT Act, requiring licensed clinics that provide certain services—including ultrasounds, pregnancy tests, and advice on birth control—to post information about affordable abortion and contraception services offered by the state. Unlicensed facilities that provide these services have to disclose their lack of medical certification. A network of crisis pregnancy centers, including the National Institute of Family and Life Advocates (NIFLA), sued in response, arguing that the government is violating their right to free speech by forcing them to promote abortion.
On a technical level, NIFLA v. Becerra is about the kind of speech the government is allowed to regulate. States can't force citizens into making statements in support of a specific political position or candidate; compelling speech in that manner would violate the First Amendment. But states can regulate other kinds of speech, such as making sure doctors disclose important information before operating on a patient. Crisis pregnancy centers, known as CPCs, fall somewhere in the murky middle of the two categories. The justices must decide where, exactly, CPCs fit.
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On a broader level, this case is about the way abortion-debate opponents wield information and regulation as weapons. California and the pro-choice organizations behind the FACT Act claim that CPCs intentionally mislead people, masquerading as clinics, providing inaccurate medical information, and obscuring their ideological commitments. The signs required by the law are meant as a warning for women who walk through their doors unaware. But the pro-life CPCs claim that they're being targeted because they hold an unpopular political view, and see the required notices as government billboards for a deeply immoral act. This case won't stop CPCs from trying to persuade women against having an abortion, and it won't stop pro-choice activists from working to shut them down. But it could set guardrails for how blue-state governments go after pro-life organizations—and how forthright those groups have to be about their agenda.
Crisis pregnancy centers have been around since the days of Roe v. Wade, when the U.S. battle over legal abortion was just getting under way. Many early CPCs were located in church basements, Kimberly Kelly, a sociologist at Mississippi State University, says. Others explicitly tried to pass themselves off as an abortion clinic and obscure their pro-life affiliation: One widely circulated advice manual on creating CPCs, written by the Pearson Foundation, was "described by law-enforcement officials around the country as a 93-page guidebook of ways to mislead consumers," according to a 1987 article in The New York Times. As U.S. public opinion turned against the aggressive, occasionally violent tactics used by some in the pro-life movement, Kelly says, this CPC model fell out of favor.
The movement began to professionalize, creating storefront spaces that weren't overtly fraudulent, but also weren't explicitly religious. In states such as California, many sought to become licensed medical clinics and some hired doctors, midwives, and nurses. Although CPCs take many different forms, they share a common mission: "These centers are focused on helping women imagine what the choice of life would be like," says Kristen Waggoner, an attorney at the Christian legal firm Alliance Defending Freedom, which is representing the CPCs in the case.
In recent years, a number of states and localities have passed legislation designed to fight what they describe as persistent deception at CPCs. Committees of the California State Legislature largely relied on research by NARAL, a pro-choice activist organization, to allege that CPCs provide misleading and inaccurate information to women, like claiming that abortion leads to suicide and breast cancer. (Both claims are widely contested by researchers, although scientific debates around abortion are ideologically fraught.) In a 2015 report, NARAL alleged that CPC staff treat women seeking abortion in a hostile or discouraging manner, despite claiming to provide unbiased counseling.
"It would be a very different conversation if CPCs were saying exactly who they were up front," says Nourbese Flint, who directs the reproductive-health program at Black Women for Wellness, one of the organizations that helped pass the FACT Act. "It looks like a clinic, walks like a clinic, with people in doctor gear and uniforms on. If you were really in the business of helping women, you wouldn't need to do all that."
By requiring disclosure signs to be posted visibly in CPC waiting rooms, the legislature argued, the state would ensure that California women have information about "their rights and available services at the sites where they obtain care." Ultimately, the case hinges on the theoretical women who may wander into a CPC unaware of what it does and find themselves waylaid en route to an abortion. "For a woman who is pregnant, and is interested in obtaining abortion care, having an experience where she may feel judged or shamed for considering abortion may have psychological and stigmatizing consequences,"says Katrina Kimport, an associate professor at the University of California, San Francisco, who studies CPCs. "But we don't have evidence that it actually changes her mind."
Lawyers for the CPCs claim that allegations about CPCs misleading women are false, and that the the California law "has an unmistakable advocacy component." The required disclosures encourage women to get in touch with local agencies for more information about California's subsidized abortion program, violating the core belief that motivates CPCs, they say: Abortion is wrong and should be prevented at all costs. "If telling someone how to get a free abortion does not convey a particular viewpoint on abortion, it is difficult to think of what does," the CPCs argued in their petition to the Supreme Court.
Now, the justices will consider their argument on free-speech grounds: Does the First Amendment prevent California from forcing CPCs to post information about abortions and disclose their licensure status in print and digital advertising? One way to think about this question, says Robert Post, a Yale law professor, is to identify whose rights are being protected. When the state regulates the labels that go on food products or what a lawyer must tell a client about her rights, it is primarily concerned with the rights of the audience, or the person who is receiving the information. When the state protects protesters with signs or people making a speech in front of city hall, however, the speaker is the main concern. The two parties in the NIFLA case have literally opposite perspectives in the case: California is concerned about the rights of the women who walk into CPCs—the audience—while the pro-life centers are concerned with their own rights as speakers.
It's not clear how the justices will see this question, however. "The court has been—let's put it this way—careless in the way in which it describes the situation in which a state can and cannot compel speech," Post says. "If we take the plaintiffs at their word, they're saying, this is speech about my religion, this is relevant to my religious beliefs. … From their point of view … it's speech about what people should think about abortion." But California's abortion notices aren't necessarily political simply because they mention abortion, he argued. "Suppose that California requires you to put up a notice in your store that cigarettes cause cancer," Post says. "That's a matter of intense political controversy. But it doesn't render it political speech."
CPC advocates believe California has overstepped, however. "Most of the time, the government doesn't get to tell people what to say," says Mark Rienzi, a law professor at Catholic University who also serves as president of Becket, a religious-freedom-focused legal firm in D.C. "If the government has a message it wants to send, the government needs to use its own words … and its own voice." California's law was designed to target CPCs because of their pro-life position, he argued. "It is a very dangerous thing to allow the government to pick certain issues and decide it is going to tell people how to talk about them."
While the California pro-life groups lost at the Ninth Circuit, other courts have been more sympathetic in similar cases. In January, the Fourth Circuit ruled against a Baltimore ordinance that required pregnancy clinics that don't offer abortion to post a sign saying as much in their waiting rooms. "After seven years of litigation and a 1,295-page record before us, the City does not identify a single example of a woman who entered the Greater Baltimore Center's waiting room under the misimpression that she could obtain an abortion there," the judge wrote. "To be sure, states must have room for reasonable regulation. But there is a limit to how much they can dictate core beliefs." Yet, the judge also emphasized that this case differed from NIFLA v. Becerra, since many of the California CPCs are licensed medical facilities and the state limited the required disclosure for unlicensed facilities.
These CPC cases are part of a broad battle over facts and truth in the abortion debate. Just as left-leaning governments have tried to regulate disclosures at CPCs, red states have recently pushed requirements for doctors who perform abortions, mandating that they share a list of alleged facts about the procedure with patients or show women images from a fetal ultrasound. Both sides claim they're looking out for the health and safety of women and fighting misinformation from their opponents. But the result is often confusion: Even the basic findings that motivated the California FACT Act were provided by NARAL, a pro-choice activist organization. "It's part of the problem," says Mary Ziegler, a professor at Florida State University who recently authored Beyond Abortion: Roe v. Wade and the Right to Privacy. "The facts in the abortion debate are so politicized that there aren't people coming up with data who don't have a dog in the fight."
In recent years, CPCs have tried to frame themselves as alternatives to abortion providers, claiming that clinics lie to women about the effects of the procedure. This goal could complicate the outcome in NIFLA, whether the justices rule for or against the CPCs. "There's been this push by CPCs to establish themselves as the source of accurate information," Ziegler says. "That push, politically, is colliding with the constitutional case they're trying to make. They want to say, constitutionally, 'We're just another wing of a political movement. We're just another advocacy group.'" If they win their case, Ziegler says it may become harder for them to also claim that they're legitimate medical organizations.
In all this haggling over information and perception, the actual women—pregnant, scared, seeking abortion or support for an unplanned child—can easily get lost. "We have women who are literally dying from not having the right health care that they need," Flint says. She cited the lack of medical resources in many low-income communities, the disparate infant- and maternal-mortality rates between white women and women of color, the comparatively lower birth weights of black babies. Women facing these kinds of health issues need medical attention, not a political fight.
"It's always a mistake when we frame women as victims who lack agency or can't make their own way in the world," Kelly says. But "this is consumer protection. If you have to tell the truth about what you do and don't offer, then women are being protected from having their time wasted."