It’s Abortion Providers, Not CPCs, Whose Free Speech Rights Are Being Violated

The Supreme Court is about to hear an anti-choice challenge to a California law regulating sham “crisis pregnancy centers,” clinics that pose as women’s health centers to prevent people from seeking abortions. But maybe anti-choice challengers should be careful what they wish for: if they win, the decision could prompt challenges to abortion laws around the country to laws that restrict abortion access and force abortion provider to mislead their patients.

California’s FACT Act establishes long-overdue regulations for the state’s 200 or so crisis pregnancy centers (CPCs). CPCs are frequently unlicensed establishments  that use misleading advertising to trick women considering abortion to come into their facilities — where they might be lied to about the risks of abortion, falsely told that emergency contraception doesn’t work, or forced to watch anti-abortion films. These facilities deliberately target women seeking abortions to interfere with their choices about reproductive health and, before the FACT Act, they were largely unregulated.

The FACT Act requires crisis pregnancy centers to disclose if they’re not licensed by the state or if they don’t have a licensed medical provider on staff. Both licensed and unlicensed clinics have to put up a notice informing patients that California “has public programs that provide immediate free or low-cost access to comprehensive services,” including contraception, prenatal care, and abortion.

These requirements might not seem controversial, because they merely require medical providers to disclose the truth. But CPCs are suing over the law, with the help of the right-wing legal powerhouse Alliance Defending Freedom, arguing that the required notices amount to government-controlled speech and thus violate the First Amendment. As Brie Frank explained when the Supreme Court first took the case, the challengers’ objection to the law is a weak one: California’s “law does not require clinics to communicate any specific message,” just to provide accurate facts about the services they provide. The Ninth Circuit agrees — a panel of the Court of Appeals unanimously upheld the law, ruling that it was permissibly regulating medical providers, not requiring anyone to promote abortion. You can read Brie’s analysis of the case and the flaws with the CPCs arguments here.

But anti-choice advocates have another problem. Eighteen states have passed “mandatory counseling” laws that force abortion providers to give people seeking an abortion misleading or outright false information aimed at dissuading them from getting an abortion. If the Supreme Court does strike down the FACT Act on the grounds that telling the truth is compelled speech that violates CPCs’ First Amendment rights, then surely laws requiring abortion providers to share false, anti-choice propaganda violate their First Amendment rights too.

According to the Guttmacher Institute, a nonprofit tracking state abortion laws, five states require doctors to tell patients that there is a link between abortion and breast cancer. This link is nonexistent and has been repeatedly debunked by the American Cancer Society, peer-reviewed research, and the American College of Obstetricians and Gynecologists. Another thirteen states force doctors to tell women that fetuses feel pain, another baseless, anti-choice myth. Eight states also require doctors to say abortion leads to long-term mental health consequences (including increased risk of suicide) in women — even though research has found no causal link between the two.

If common-sense consumer protection laws requiring CPCs tell people the truth amount to unconstitutional “compelled speech,” then surely mandatory counseling laws forcing doctors to push ideologically-charged misinformation on their patients require “compelled speech,” too.

Some lower courts have already recognized that mandatory counseling laws create serious free speech problems. The Fourth Circuit overturned a controversial North Carolina law requiring doctors to perform an ultrasound and describe the fetus to women seeking abortions, even if tried to “refus[e] to hear.” In a unanimous opinion, the court ruled that the requirement was “quintessential compelled speech,” writing that it “forces physicians to say things they otherwise would not say. Moreover, the statement compelled here is ideological; it conveys a particular opinion.”

Other courts have been less willing to accept abortion providers’ challenges, creating inconsistency among circuit courts. In 2008, abortion providers challenged a South Dakota law that required providers to falsely tell patients that abortion was associated with depression and suicide, and that abortion would “terminate the life of a whole, separate, unique, living human being.” While the Eighth Circuit found that the medical literature did not support a causal link between abortion and suicide, it upheld the law, reasoning that it requires physicians to say abortion and mental health issues are “associated” rather than “caused by.” But this is a nonsense distinction — to a lay person hearing this from their doctor, that language is one and the same.

But if the Supreme Court says that the FACT Act’s minimal disclosure requirements are compelled speech, reproductive rights lawyers could get another run at the South Dakota’s law and similar ones across the country. Even if reproductive rights advocates lose this battle, it may help us win the war.

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Sejal Singh is a 1L student at Harvard Law, where she's interested in gender justice, economic justice, and educational access. While not doing the reading, Sejal is a columnist at Feministing and a Policy Coordinator for Know Your IX, a national campaign fighting sexual harassment in schools. Find her on Twitter at @Sej_Singh.

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