For more information on CPCs please visit www.nwlc.org/cpctoolkit. If you have ever gone to a CPC and are interested in filing a complaint or have questions, please contact us at 1(855)CPC-FACT or email@example.com.
So-called crisis pregnancy centers (CPCs) are typically unlicensed facilities that target women who may be pregnant and need services and information. While some CPCs provide accurate information to women seeking support, many do not. Instead, they use deceptive practices to entice women into the center, including setting up shop near licensed medical clinics and taking names similar to those licensed clinics. In doing so, CPCs purposefully lead women to believe that they will receive comprehensive health information. However, many of the over 4,000 CPCs in the United States have no licensed medical personnel and provide no referrals for birth control or abortion care. What is worse, they fail to disclose this to women who are seeking accurate and timely health information. Once women are in the door, CPCs then give misleading and false information about birth control, emergency contraception, and abortion care in order to stop women from using or obtaining these critical health care services. This undermines women’s ability to make informed decisions about their pregnancies.
Requiring Accurate Information
Concerned about the effect of CPCs’ dishonest practices on vulnerable women, local lawmakers have stepped forward to regulate CPCs. They are targeting CPCs’ deceptive practices, requiring various disclosures of their practices and policies, so that women are not deceived or given inaccurate information. Although consumer protection laws can be used to curtail the misleading tactics of CPCs, these laws rely on consumer complaints, and women might be reluctant to come forward because of the sensitive nature of the experience.
Local governments in Maryland spearheaded the movement to stop CPCs from engaging in deceptive practices that harm vulnerable women. In December 2009, Baltimore passed a city ordinance requiring CPCs to post disclaimers in waiting rooms stating that they do not provide or make referrals for abortion care or birth control services. Baltimore enacted the legislation in response to reports of deceptive CPC practices, such as one from a woman who, as a teenager, was considering her pregnancy options and visited a CPC because it advertised under “Abortion Counseling” in the phone book. Women were also falsely told they could wait to make a decision about what to do because “Abortion is legal through all nine months of pregnancy.” Also in Maryland, Montgomery County adopted a resolution in February 2010 requiring CPCs to disclose that they do not have licensed medical professionals on staff and that the county encourages women who may be pregnant to consult with licensed medical personnel.
In March 2011, New York City adopted an ordinance that combines the requirements of the Baltimore and Montgomery County regulations. New York’s ordinance requires all CPCs to disclose whether they make referrals for abortion care or emergency contraception, whether a licensed medical provider supervises the services provided at the CPC, and that New York encourages women who may be pregnant to consult with a licensed medical professional. New York City adopted the ordinance in response to reports of CPCs telling women that they needed multiple ultrasounds before having an abortion, misrepresenting that abortions were available through nine months of pregnancy, and posing as Planned Parenthood staff to attract women into their facilities. In addition, the City saw the regulation as a necessary protection for women who are reluctant to come forward and speak about their CPC experiences.
While regulations specifically targeted at CPCs are relatively new, states and the federal government have long recognized the need for mandatory disclosure laws in the reproductive health context.
Litigation: Legal Challenges to Regulating CPCs
CPCs claim that regulations mandating disclosure are a form of “compelled speech,” which violates the right not to speak encompassed by the First Amendment to the Constitution. Courts have analyzed the compelled speech claim under a strict scrutiny analysis. Under this analysis, the law can only stand if it serves a compelling government interest and is narrowly tailored to that interest.
The Fourth Circuit Court of Appeals struck down both the Montgomery County and the Baltimore CPC ordinances. Judge Robert King dissented from the majority opinion in both cases. In the Montgomery County case, the Fourth Circuit held that requiring CPCs to disclose whether they employ licensed medical personnel compels speech because it forces CPCs to express the view that pregnancy is primarily a medical condition, a view with which CPCs may disagree. In the Baltimore case, the Fourth Circuit found that Baltimore’s regulation likewise “compelled” CPCs to “speak” through waiting-room signs stating that they do not provide or make referrals for abortion care or birth control. The court analyzed the ordinance using a strict scrutiny standard rather than the more lenient rational basis standard, which would apply if the CPCs were, as the local governments maintained, engaged in commercial speech. Applying the strict scrutiny analysis, the majority found that “the ordinance is not narrowly tailored to serve the City’s interest ”because it applied to all crisis pregnancy centers and not just ones engaged in deceptive practices and because Baltimore did not try alternative approaches, such as public service campaigns. Judge King emphatically disagreed with the majority’s opinion. According to Judge King, “Put simply, the Ordinance does not prohibit or restrict a limited-service pregnancy center’s speech about abortion and birth-control.” Moreover, even if it did restrict speech, there is a “real possibility that the Ordinance targets only commercial speech” and would thus be upheld under a lower standard of judicial review. As Judge King stated, “The court’s decision, is, in a word, indefensible.” The governments appealed both cases and in December, the two cases were reheard by the full appeals court. A decision is expected sometime in early 2013.
A federal district court also struck down New York City’s CPC ordinance, holding that the regulation was not narrowly tailored to protect women’s health. According to the court, the city could find other ways of protecting women such as a public service advertisement (PSA) campaign against CPCs. The court also suggested imposing licensing requirements on ultrasound technicians in order to regulate them, though only one of the five CPCs in the suit provided ultrasounds. Finally, the court suggested prosecuting CPCs under anti-fraud statutes even though the city had passed the regulation in part because anti-fraud statutes do nothing to help women who do not wish to file a complaint. Thus, while acknowledging that some CPCs engage in deceptive practices and that such deceptive practices have harmful health effects, the court ruled that a CPC’s right to free speech, including deceptive speech, trumps a woman’s right to honest health information. The case has been appealed to the Second Circuit Court of Appeals.
Hopefully, as these cases are heard on appeal, the courts will reach more just outcomes and hold mandating that CPCs disclose honest information does not violate free speech principles.
New Directions to Curb Deceptive CPC Practices
The threat of litigation has caused local governments to try new approaches to CPC regulations. Austin, Texas, for example, initially passed an ordinance in 2010 requiring CPCs to post whether they provide referrals for abortion care or birth control. After CPCs threatened legal action and courts began striking down similar regulations in other cities, Austin replaced its ordinance with one requiring CPCs to post only whether their facility or staff is medically licensed. Nevertheless, one CPC has challenged the ordinance although the court has not yet reached a decision.
San Francisco took a different approach with the ordinance it passed in November 2011. The ordinance makes it illegal for CPCs to make untrue or misleading statements through advertising or to a woman seeking pregnancy care, or to use misleading “schemes.” That is, a CPC cannot imply that services like abortion are offered but have no intent to perform such services. Individuals may file complaints against a CPC that violates the ordinance. If a CPC fails to correct the violation after being given notice, the city may sue the CPC to compel compliance. The court may require the CPC to pay for advertisements that correct the false, misleading or deceptive advertising and/or post a notice that states whether the CPC has a licensed medical provider and whether it provides abortion care, emergency contraception, or referrals for abortion care or emergency contraception.
San Francisco’s ordinance may provide a model for future legislation. The ordinance bans CPCs’ deceptive practices and then requires corrective action only after a specific CPC has been found to have violated the ban. This contrasts with the CPC ordinances that have been struck down. These ordinances require all CPCS to disclose information about the services they provide and/or who provides those service. Thus, the courts may be more likely to find that the San Francisco ordinance is narrowly tailored because only CPCs that have engaged in deceptive practices will be affected. One CPC has already sued against the ordinance.
The current litigation surrounding CPC regulations has twisted First Amendment law to give CPCs extra free speech protections in order to lie to women seeking reproductive healthcare. The First Amendment does not encompass a CPC’s right to lie to vulnerable women seeking healthcare about their intimate medical decisions. The Supreme Court has recognized that citizens have a right to accurate information, and women seeking healthcare are no exception.
For more information on CPCs please visit www.nwlc.org/cpctoolkit. If you have ever gone to a CPC and are interested in filing a complaint, please contact us at 1(855)CPC-FACT or firstname.lastname@example.org. Also let us know if you have already filed a complaint, are interested in sharing your CPC story, or have questions.