Rewire: Anti-Choice Clinics Claim Their Deceptive Business Practices Are Free Speech. Will Justice Kennedy Agree?
Next week the Supreme Court will hear a case that will determine whether fake clinics (or Crisis Pregnancy Centers) must disclose the fact they are anti-abortion. The crux of the case — National Institute of Family and Life Advocates (NIFLA) v. Becerra — is whether the state of California can require these clinics to say they don’t provide abortions. The Fake Clinic in the case claims that disclosing their lack of abortion services infringes on their free speech. But free speech should not cover misleading patients into believing they are in a medical setting when they are not. In NC, fake clinics get $2.6 million in funding from the state, despite the fact they deceive patients. NC has no laws to require that they tell patients they don’t have medical staff and they don’t provide abortions. The Supreme Court case will have far-reaching consequences. If the court takes California’s side, other states will be able to pass laws requiring these fake clinics to tell patients exactly what they do.
In 2015, California lawmakers passed the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act, or the Reproductive FACT Act, which amounts to a mandatory disclosure bill. Lawmakers passed the measure in response to allegations that businesses posing as reproductive health-care clinics were providing clients with misleading and sometimes dangerously inaccurate information about their pregnancies and their options.
During hearings on the bill, the legislature found that the ability of California patients to receive comprehensive and accurate information about their reproductive rights is hindered by the existence of these centers. According to early legislative analysis done on the bill and cited in court documents, these centers employ “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.”
The Reproductive FACT Act disclosures are extremely straightforward. Facilities that are licensed as pregnancy centers by the state must display a brief statement disclosing that California offers access to free and low-cost birth control and abortion care, along with a number to call for more information. Unlicensed centers must disclose, in up to 13 languages, that they are not medical facilities and do not offer medical care.
Attorneys from Alliance Defending Freedom (ADF), the anti-choice, anti-LGBTQ litigation mill representing the centers challenging the law, claim those disclosures are too much, though. They sued before the law could take effect, arguing the disclosures are state-compelled “pro-abortion” speech. Both a lower court and the Ninth Circuit Court of Appeals disagreed and upheld the law. In November, the Roberts Court agreed to step in and hear ADF’s claims.