Symposium: The First Amendment cannot justify lying to women

Julie Rikelman is the senior director of litigation at the Center for Reproductive Rights.

Is there a First Amendment right to deceive the public about the services that a business provides, simply because those services involve reproductive health care? That is the central question in National Institute of Family and Life Advocates v. Becerra, a case about provisions in the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act.

California’s FACT Act ensures that women who are seeking time-sensitive reproductive health care services and end up at a crisis pregnancy center can quickly determine whether they have, quite literally, come to the wrong place. CPCs are a multi-million-dollar industry and exist in every state throughout the country; there are thousands of CPCs nationwide and approximately 200 CPCs in California alone. Further, many CPCs are affiliated with national umbrella organizations that provide administrative, strategic and technical support. NIFLA is one such organization. Specifically, NIFLA assists CPCs with undergoing “medical conversions,” as well as with legal advice on avoiding tort liability. Other umbrella organizations, such as Care Net, Heartbeat and the Vitae Foundation, provide a range of advertising support. As NIFLA acknowledges in its cert petition to the Supreme Court, its centers “operate according to their religious views” on reproductive decisions, including on contraception, single parenthood and abortion. No one contends that the CPCs and their staff lack First Amendment protection for their views or that they cannot seek to persuade others to share those views through lawful means.

The problem, however, is that many CPCs purposefully mislead women about their mission. In every way possible, from their advertising, to their physical appearance, to the uniforms of their staff, CPCs are designed to look like medical clinics, not religious ministries. As discovery in other pending cases and federal legislative reports has demonstrated, CPCs engage in deceptive and “purposely vague” advertising to lure women inside their doors under false pretenses, and then encourage staff to further mislead and even obstruct women once they are on a CPC’s premises. The CPCs disseminate print and online advertising that includes phrases such as “abortion counseling” and “abortion options.” The print advertising is often concentrated in areas where there are higher populations of students, women of color or low-income women. As part of this purposely vague advertising, CPCs regularly choose names that are confusingly similar to names of nearby abortion clinics; indeed, CPCs often locate themselves next to or across the street from an abortion clinic to add to the confusion. Once a woman enters a CPC, even one that is unlicensed and has no medical personnel, the staff may be wearing white lab coats, continuing the deception. Dressed in the guise of health-care professionals, CPC staff may provide medically inaccurate information. For example, women who have mistakenly entered a CPC seeking medical care to end a pregnancy have been told that they are too early in their pregnancies to have an ultrasound (even if they are not) and asked to return weeks later, substantially delaying needed medical care.

What does this mean for women who are seeking an abortion, access to contraception or prenatal care? It means that women are manipulated and shamed. It also means that women suffer concrete harms to their health, including exposure to the risk of sexually transmitted disease if they do not receive timely contraception, delays in ending a pregnancy that increase health risks and costs, and inability to obtain the prenatal care they need at the time they need it.

To protect the public health and address this consumer confusion, California enacted the FACT Act. As the U.S. Court of Appeals for the 9th Circuit noted in the opinion below, the California legislature found that CPCs use “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.” Further, the legislature found that CPCs “pose as full-service women’s health clinics” in order to lure women to their locations so that they can engage in further misdirection. The act covers both licensed and unlicensed centers providing pregnancy-related care. For licensed centers, which do provide some medical services, the act requires a written notice, either posted in the waiting room or provided to women directly in writing or digitally when they arrive at the CPC. The notice informs those who have come to the CPC that California has public programs that provide free or low-cost access to comprehensive family-planning services including contraception, prenatal care and abortion for eligible women, and provides a number to call to determine eligibility. For unlicensed centers, the act requires a notice on site and in any print or digital advertising stating that the CPC is not licensed as a medical facility by the state and that it “has no licensed medical provider who provides or directly supervises the provision of services.” Both disclosures are simple and accurate.

Under ordinary First Amendment principles, these provisions of the FACT Act are constitutional. Context is key in determining the appropriate level of review for compelled speech — the “level of scrutiny to apply to a compelled statement” turns on “the nature of the speech taken as a whole and the effect of the compelled statement thereon,” as the Supreme Court wrote in 1988 in Riley v. National Federation of the Blind of North Carolina. The U.S. Court of Appeals for the 4th Circuit cited Riley in 2014 in Stuart v. Camnitz and relied on a context-specific analysis to strike down a North Carolina law that required a physician providing abortion services to display ultrasound images to a patient, and then recite, in his or her own voice, specific information about the images dictated by the state. The law required the physician to do all of this during the course of the ultrasound itself and while the patient was partially disrobed on an examination table, regardless of whether the patient wanted to see the images or hear the information. A context-specific analysis here supports the holding below.

The 9th Circuit rightly concluded that the provision requiring licensed CPCs, which do provide some medical services, to post a sign in their waiting rooms about the availability of low-cost or free comprehensive reproductive health services is likely to survive intermediate scrutiny. Under intermediate-scrutiny analysis, remedying consumer deception and protecting the public health are certainly important state interests. And the provision is not more intrusive than necessary – it does not force staff at the CPC to speak the information in the notice in their own voices, for example. It is also effective for combating the problem at hand: Because of CPCs’ deceptive practices designed to make women believe they have come to a comprehensive reproductive health care clinic, and the misdirection that continues on site, women are delayed in receiving the care they need. The notice provides women who have been subjected to this deception with timely, factually accurate information about how to obtain that care, reducing any additional delays and therefore any additional harms to their health.

The notice required of unlicensed centers is equally constitutional. To the extent unlicensed centers must include disclosures about the scope of their services in advertising, such disclosures should be subject to rational basis review under well-settled law. And the notice such unlicensed centers are required to provide in their waiting rooms would survive under any level of scrutiny. Again, because of CPCs’ purposeful pattern of misdirection and deceptive advertising, some women who enter their doors do not realize that they have literally come to the wrong place. The notice informs women who are seeking medical services that such services are not actually available on site.

Finally, there is no basis for the CPCs’ claims of viewpoint discrimination. The FACT Act has the viewpoint-neutral goal of reducing consumer deception and protecting the public health. It discriminates among speakers based not on their viewpoints, but on the likelihood of consumer confusion. That the act may have a disproportionate impact on certain types of pregnancy-related centers is irrelevant for First Amendment purposes. That is what the Supreme Court recently held in McCullen v. Coakley, in which the court also stated that it is appropriate for legislatures to enact a limited solution to a specific problem, and that, indeed, legislatures should be encouraged to choose solutions that restrict less speech rather than more. In other cases, such as Christian Legal Society v. Martinez, the court has recognized that simply because speakers have a viewpoint-based objection to a law does not make the law itself discriminatory. It was not viewpoint discrimination for California to conclude that pregnancy-related medical centers that do provide free or low-cost access to comprehensive family planning services, prenatal care or abortion need not provide the notices specified in the act. The act simply targets the problem that it was designed to solve: misleading women.