NIFLA v. Becerra and Crisis Pregnancy Centers: Constitutionalizing the Distribution of False Medical Information to Pregnant People

Amelia Spencer
Amelia Spencer is a recent graduate of the George Washington University Law School and has accepted a position as a staff attorney with Bronx Legal Services in New York.

I. Introduction

An abortion clinic and a crisis pregnancy center (CPC) stand directly across from each other at the corner of 12th and Delaware in Fort Pierce, Florida.1 A man hovers outside the abortion clinic holding a poster of a bloody, mangled fetus.2 A woman paces the sidewalk holding a rosary and singing hymns.3 As patients enter the abortion clinic, protesters alternate between insulting them, calling them murderers, and attempting to lure them across the street to the CPC.4 When the doctor arrives, he is covered by a sheet to protect his identity.5 Seeking an abortion in the U.S. can be traumatic. Performing abortions can be downright dangerous.6

With the passage of Roe v. Wade,7 pro-life activists mobilized on a national level, sowing the seeds for an intensely polarized battle over abortion rights that, in great part, defines the Democratic and Republican party platforms as they exist today.8 A key component of anti-choice activism has been the establishment of CPCs. California became the first state to regulate CPCs through its Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act, which required CPCs to disclose that state funded clinics offer other pregnancy options (including abortion) and inform patients if they are not licensed to provide medical services. 9

In National Institute of Family and Life Advocates v. Becerra, the Supreme Court held that California’s FACT Act violated the First Amendment.10 In light of NIFLA v. Becerra, there are three necessary policy changes. First, state and federal governments should refuse to fund CPCs directly or indirectly. CPCs violate the First Amendment’s Establishment Clause on separation of church and state when they use government funds to mas­querade as healthcare clinics and provide inaccurate medical information to pregnant people. Second, the federal government should enact a National Deceptive Trade Practices Act to target CPCs’ false advertising and decep­tive practices. Finally, Congress should promulgate a statute that conforms with NIFLA v. Becerra. CPCs impose an unconstitutional “undue burden” on individuals seeking abortions when they provide them with inaccurate medical information and intentionally conceal that they do not provide abortion services.11

 

II. Background

A. Crisis Pregnancy Centers: Overview and Brief History

CPCs are anti-choice, faith-based centers that provide pregnancy-related services and seek to discourage abortion through dishonest advertising and dissemination of false medical information.12 Unlike abortion clinics, CPCs are “exempt from regulatory, licensure, and credentialing oversight that ap­ply to health care facilities.”13 Most CPCs are affiliated with large organiza­tions such as Care Net, Heartbeat International, or the National Institute of Family and Life Advocates (NIFLA), which provide free pregnancy tests, ultrasounds, parenting classes, Bible studies, and legal support.14 CPCs mimic the appearance of doctor’s offices and are often strategically located near abortion clinics.15 Most are unlicensed (i.e. not subject to regulation) and “give the appearance that they provide abortions or abortion-related education” to draw pregnant people to their doors.16

Once inside, patients are subjected to judgment and bullying, given false medical information about health risks related to abortion, and shown graphic depictions of abortions.17 According to Sarah Christopherson, the Policy Advocacy Director for the National Women’s Health Network, CPCs “are designed for one purpose—to make sure that everyone carries their pregnancy to full term—and they’ll do or say anything to make sure that happens.”18

Robert Pearson established the first CPC in 1967 with the goal of pre­venting abortions after Hawaii legalized the procedure.19 However, CPCs did not truly begin to proliferate until after 1973 when the Supreme Court held in Roe v. Wade20 that women have a constitutionally protected right to privacy in seeking an abortion.

Religious groups, galvanized by Roe v. Wade, mobilized to combat the expansion of abortion rights. These groups discovered an ally in Pearson, who founded The Pearson Institute to help anti-abortion activists establish CPCs across the nation.21 Since the late 20th century, CPCs have burgeoned in the United States. As of 2018, there were roughly 4,00022 CPCs in the United States, outnumbering abortion clinics approximately four to one.23

One reason for this success is that CPCs are not subject to state regulation, whereas abortion providers are subject to heavy scrutiny and regulation.24 CPCs found themselves in hot water however, after investigations by the National Abortion Federation and NARAL Pro-Choice America revealed the shocking tactics they use to dissuade pregnant people from seeking abor­tions.25 Nevertheless, while a number of states have attempted to regulate CPCs, they have been largely unsuccessful in the face of First Amendment freedom of speech principles.

 

B. Crisis Pregnancy Center Tactics

 

1. 1. Deceptive Advertising and Masquerading as Medical Clinics

CPCs mimic the appearance of medical clinics and structure their adver­tisements to insinuate that they provide abortion services when, in reality, they refuse to provide such services. The deceptive advertising is deliber­ate; pro-life advocate for Heartbeat International, Abby Johnson, is quoted as saying, “We want to appear neutral from the outside. The best call, the best client you ever get is one who thinks they’re walking into an abortion clinic. The ones that think you provide abortions.”26

Heartbeat International recommends that centers use two websites—one for fundraising and donors describing CPCs’ anti-abortion mission and a second website professing to provide medical information to individuals seeking contraception, counseling, or abortion.27 Additionally, some CPCs list their centers in directories under “abortion” or “abortion services.”28 CPCs are intentionally vague about the services they offer and often use ambiguous names (such as “Her Choice Birmingham Women’s Center” and “Choices Pregnancy and Health”) that mislead patients about the services they provide.29 At their physical locations, CPCs offer free pregnancy tests, ultrasounds, and other services.30 Once inside, however, patients may be confronted with anti-abortion films, lectures, or pictures and staff who refuse to provide referrals to abortion clinics.31 CPCs are designed to look like comprehensive reproductive health clinics. However, many are operated by unlicensed volunteers who “may wear lab coats and require clients to complete paperwork prior to seeing a so-called counselor.”32

 

1. 2. False Medical Information, Religious Propaganda, and Bullying

CPCs provide false medical information about contraception and abor­tion, such as telling patients abortion can be a deadly procedure, increases the risk of breast cancer and infertility, causes depression, suicide, and post-abortion stress disorder (not recognized by the American Psychiatric Association), and can cause miscarriages, stillbirths, and birth defects.33 Centers tell patients that incomplete abortions may lead to uterus perfora­tion, toxic shock, or death (some centers state that decaying fetal body parts may be left inside patients’ bodies after the procedure).34

In addition to opposing abortion, many CPCs refuse to make referrals for birth control (claiming it is the equivalent of an early abortion) and tell patients that condoms have a high failure rate and are ineffective at prevent­ing STI transmission.35 Many CPCs lie to patients about the gestational age of the fetus, falsely advise them that abortion is an option in their state up until birth, or recommend that they wait to see if they miscarry before opt­ing to abort.36 As a result, when pregnant people seek medical care, it may be too late to get an abortion, depending on their state’s legal restrictions.

Once patients are inside clinics, they are pressured to remain pregnant and shamed for considering abortion. Some CPCs have reportedly convinced patients to sign contracts pledging to give birth; the contract (containing their personal information and social security number) includes a notice that it will be provided to every abortion provider where the pregnant person may go, all law enforcement agencies with jurisdiction where the person resides or where they may seek an abortion, all state authorized Child Protective Services with jurisdiction where the person resides or make seek an abor­tion, and legal counsel for the CPC and the individual.37

 

C. Particularly Affected Groups: People of Color, Immigrants, and Low-Income Individuals

CPCs are disproportionately located in low-income neighborhoods where people of color and low-income individuals live.38 Heartbeat Miami’s website stated CPCs must be “mainstreamed into Black and Latino churches in the cities” and the CPC-to-comprehensive clinic ratios in Houston are 13:2 in low-income neighborhoods and 15:4 in communities of color.39 The pro-life movement advocates for decreased access to Medicaid (which is the only healthcare option for many low-income people) and defunding Planned Parenthood (the only source for contraceptives in many low-income areas) while simultaneously littering these neighborhoods with CPCs, which have a proven history of lying to patients about their healthcare options and providing them with false medical information.40

The result of these efforts is that, compared to their white counterparts, people of color and low-income people have restricted access to contracep­tives, experience teen pregnancy at significantly higher rates, and are three to four times more likely to die in childbirth.41 Additionally, lack of access to comprehensive reproductive healthcare limits economic outcomes for people of color, who face heightened income inequality and are more likely to live in poverty than their white counterparts.42 This, in turn, impacts educational opportunities and inadequate housing, which comes full circle to further decrease access to healthcare.43 Finally, immigrants in government custody are particularly at risk. The Office of Refugee Resettlement directed government-funded shelters and legal service providers to send pregnant people to CPCs for counseling services.44 As a result of these policies young immigrants are at risk of what is, in practice, government-mandated birth. For example, a 17-year-old undocumented immigrant held by the federal Office of Refugee Resettlement in Texas nearly missed the state’s 20-week abortion deadline when the state forced her to obtain a judicial bypass for the procedure, caused her to miss two medical appointments, and sent her to a CPC instead of an abortion clinic.45

 

D. Crisis Pregnancy Centers are Government-Funded

In 2018, 14 states set aside approximately $40.5 million taxpayer dollars in their budgets for CPCs while simultaneously slashing funding for healthcare and public assistance programs and enacting more stringent requirements to qualify for public assistance.46 There are 1,255 CPCs, compared to only 214 abortion providers, in these 14 states.47

Additionally, 32 states currently provide “Choose Life” license plates, which are $25 to $70 more expensive than standard plates and whose pro­ceeds are directed toward antichoice organizations (including CPCs); some states go as far as explicitly prohibiting funds from these license plates from being allocated to organizations that provide abortion services. Reproductive health activists have successfully challenged this in some states as a First Amendment violation and government establishment of religion.48

Beginning with the Bush Administration in 2001, CPCs have received millions of dollars in federal funding through programs such as Community- Based Abstinence Education, Title V Abstinence Only, and Compassion Capital Fund; federal funding decreased significantly under the Obama Administration but was not eliminated.49 In contrast, the Hyde Amendment mandates that

No funds authorized or appropriated by Federal law. . . shall be expended for any abortion. . . [or] health benefits coverage that includes coverage of abor­tion. . . [unless] the pregnancy is the result of an act of rape or incest. . . [or] would place the woman in danger of death unless an abortion is performed.50

Only seventeen states use state funds to provide abortions for people using Medicaid beyond the Hyde Amendment’s restrictions.51

 

E. NIFLA v. Becerra

In 2015, California adopted the FACT Act to regulate CPCs. The Act re­quired licensed clinics primarily serving pregnant people to provide notice that California provides low-cost or free family planning services—includ­ing abortions—and a phone number to call for those services; that Act also required unlicensed clinics to notify patients that they were not licensed to provide medical services.52 The Act’s stated purpose was to “ensure that California residents make their personal reproductive health care decisions knowing their rights and the health care services available to them.”53

In response, NIFLA, Pregnancy Care Center (a licensed center), and Fallbrook Pregnancy Resource Center (an unlicensed center) (collectively “NIFLA”) filed suit alleging the FACT Act violated their First Amendment right to free speech.54 A California District Court denied their motion for preliminary injunction and the 9th Circuit affirmed, finding that NIFLA could not demonstrate they were likely to succeed on the merits.55

In 2017, the Supreme Court agreed to hear the case. In a 5-4 decision, the court struck down California’s FACT Act as an unconstitutional violation of the First Amendment.56 Writing for the majority, Justice Thomas found the notice requirement for licensed clinics targeted speech based on its content because it forced clinics to advertise abortion.

Content-based laws are subject to strict scrutiny and “may be justified only if the government proves they are narrowly tailored to serve compel­ling state interests.”57 The Court stated there are two exceptions to the strict scrutiny requirement: disclosure of factual, non-controversial information in commercial speech and professional conduct that only incidentally involves speech.58 The majority found the licensed disclosure to be controversial because it required anti-choice organizations to disclose information about state-sponsored abortion services.59

The licensed notice requirement was additionally found to be burden­some because it governed “all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, of­fered, or performed.”60 The majority further commented that the licensed notice requirement would not survive intermediate scrutiny because it only applied to clinics whose primary purpose was providing family planning or pregnancy-related services while excluding other clinics that performed services for low-income individuals.61

With regard to the unlicensed notice requirement, California’s stated objective was to ensure pregnant people knew if they were receiving care from licensed medical professionals.62 However, California denied that the justification for the requirement was that patients did not know what kind of facilities they were going to when they entered unlicensed CPCs.63 Based on this, the Court found that the harm California intended to remedy was purely hypothetical.64 The Court finally held that, even if the harm was not hypothetical, the unlicensed disclosure unduly burdened free speech by im­posing government-scripted speech on a narrow subset of individuals (CPCs) that was “wholly disconnected from the state’s informational interest.”65

Writing for the dissent, Justice Breyer pointed out that, if taken literally, the majority opinion could “radically change prior law” and that the ma­jority explicitly stated it did not “question the legality of health and safety warnings long considered permissible” but failed to give any reason why the FACT Act did not fall under that “health” category.66 Furthermore, the dissent noted that, pursuant to Planned Parenthood v. Casey, abortion pro­viders can be required to tell people seeking abortions about “the nature of the abortion procedure, the health risks of abortion and of childbirth, the probable gestational age of the unborn child, and the availability of printed materials describing the fetus, medical assistance for childbirth, potential child support, and the agencies that would provide adoption services” be­cause these informational requirements do not impose an “undue burden” on people seeking abortions.67

The majority attempted to distinguish Planned Parenthood v. Casey as “concerning a regulation of professional conduct that only incidentally burdened speech” but the dissent posited that “[t]his distinction. . . lacks moral, practical, and legal force” because “[t]he individuals at issue. . . are all medical personnel engaging in activities that directly affect a woman’s health—not significantly different from the doctors at issue in Casey.”68 As Justice Breyer stated: “If a State can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive healthcare about childbirth and abortion services?”69

The practical effect of NIFLA v. Becerra is that religiously affiliated, anti-choice family planning centers providing medical services and informa­tion are not held to the same standard as abortion providers. They are not obligated to provide pregnant people with accurate healthcare information, inform them about the availability of abortion services, or even provide notice that they are not staffed by licensed medical professionals. NIFLA v. Becerra runs counter to prior Supreme Court reproductive healthcare decisions, arguably violates Planned Parenthood v. Casey by knowingly allowing CPCs to intentionally confuse patients about their medical care, and demonstrates a clear preference for CPCs by failing to hold them to the same standards as other reproductive healthcare providers.

 

III. Analysis and Policy Recommendations

 

A. End Government Funding for CPCs

CPCs are a clear violation of the separation between church and state. The federal government and states that allocate millions of taxpayer dol­lars and carve out funding in their budgets for CPCs are engaging in the unconstitutional establishment of government-funded religion.

The Supreme Court expounded on the meaning of the First Amendment’s Establishment Clause in Everson v. Board of Education of Ewing Town­ship, stating:

Neither a state nor the Federal Government can pass laws which aid one reli­gion. . . . No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between Church and State.”70

Additionally, in Lemon v. Kurtzman the Court developed a three-part test to determine whether laws satisfy the First Amendment’s Establish­ment Clause.71 To pass constitutional muster, the legislation “must have a secular legislative purpose. . . its principal or primary effect must be one that neither advances nor inhibits religion. . . [and it] must not foster ‘an excessive government entanglement with religion.’”72

Laws that allocate portions of the state or federal budget to CPCs and funnel taxpayer dollars into CPCs satisfy none of Lemon’s requirements. It is implausible that legislation providing monetary support to explicitly religious organizations has a “secular legislative purpose.”73 Care Net, one of the largest CPC umbrella organizations, advertises that it “offers compas­sion, hope, and help to anyone considering abortion by presenting them with realistic alternatives and Christ-centered support through our life-affirming network of pregnancy centers, churches, organizations, and individuals.”74 CPC volunteers have informed patients that centers were Christian orga­nizations, stated that God chose to bless them with pregnancy, pressured patients to consider what God would want them to do, handed out Bibles, and prayed with patients during clinical visits.75

It is more far-fetched that the principal effect of this legislation does not advance religion. The states and federal government have directly con­tributed to CPCs’ successful operation and expansion by providing them with millions of dollars.76 Although CPCs also rely on private donations, a number of them are unable to continue operating without government as­sistance and would necessarily cease to operate if this funding disappeared.77 Government funds allow many CPCs to remain in operation, thus directly contributing to the purpose of their existence—“Christ-centered” abortion prevention by any means necessary.

The fact that state and federal governments are directly subsidizing openly religious organizations that use this funding to advance their reli­gious agenda necessarily establishes that this genre of legislation fosters “an excessive government entanglement with religion.”78 The government is more than simply entangled in religion—it is literally funding it.

CPCs certainly have the right to operate and exercise their Constitutionally guaranteed right to freedom of religion. However, they do not have the right to receive government funding to advance their religious agenda. As such, state legislatures and Congress must repeal any legislation that apportions taxpayer dollars for these centers, prohibit federal programs from using government funds to support these centers, and cease to earmark funds for CPCs in the state and federal budgets.

 

B. Enact a National Deceptive Trade Practices Act

The Court in NIFLA v. Becerra stated that it does not “question the legal­ity of. . . purely factual and uncontroversial disclosures about commercial products” and acknowledged that laws requiring professionals to “disclose factual, noncontroversial information in their commercial speech” are not presumptively unconstitutional and are exempt from strict scrutiny if the disclosure “relates to the services that [the regulated entities] provide.”79 Required disclosures of this nature are to be “upheld unless they are ‘unjustified or unduly burdensome.’”80 NIFLA v. Becerra notably fails to foreclose the avenue of regulating CPCs through consumer protection laws and, incidentally, the First Amendment does not protect false and decep­tive advertising.81 Lack of standing at the federal level and inadequate state consumer protection calls for implementation of a National Deceptive Trade Practices Act (“National Act”) modeled after the Uniform Deceptive Trade Practices Act (“Uniform Act”) currently in force in several states.

At the federal level, the Federal Trade Commission Act’s Section 5 on Unfair or Deceptive Acts or Practices fails to provide a private cause of action.82 Although every state has a consumer protection statute, they vary widely in their strength, scope, and content.83 The states have demonstrated that they are either incapable of or unwilling to enforce state consumer protection statutes against CPCs and many continue to funnel millions of dollars into these organizations.

Section 1 of the Uniform Act provides a private right of action for any “person likely to be damaged” by deceptive trade practices; it defines “person” as “an individual, corporation, government, or governmental subdivision or agency, business trust, estate, trust, partnership, unincor­porated association, two or more of any of the foregoing having a joint or common interest or any other legal or commercial entity.”84 The Uniform Act generally prohibits deceptive commercial activity and specifically pro­hibits misleading advertising and deceptive trade practices (among other practices).85 It further eliminates the requirement of establishing actual confusion or misunderstanding, intent to deceive, or provable monetary damages to obtain relief.86 Although the Uniform Act does not provide for recovery of damages, a proposed National Act should authorize damages recovery in addition to the existing attorneys’ fees provision.

The proposed National Act would apply generally to all individuals or businesses engaging in commercial activity but would encompass CPCs’ advertising strategies, thus avoiding the constitutional challenge that it par­ticularly targets CPCs. One potential hiccup pertains to the argument that CPCs are exempt from consumer protection laws because they are nonprofit organizations not engaged in commercial activity. However, courts have previously held that nonprofits are subject to consumer protection laws when they provide goods and services87 and mislead consumers about the services they provide.88 Significantly, in First Resort, Inc. v. Herrera, the 9th Circuit found a CPC liable under California consumer protection law (and not protected by First Amendment freedom of speech principles) when it engaged in misleading commercial speech.89 The First Resort, Inc. court found that lack of payment for services was not determinative because the advertisements were “placed in a commercial context and [were] directed at the providing of services rather than toward an exchange of ideas. . . [so they constituted] classic examples of commercial speech.”90

CPCs engage in misleading advertising and deceptive trade practices when they operate two websites with drastically different information (one for donors and one for consumers), provide patients with brochures containing demonstrably false medical information unsupported by scientific evidence, and pass themselves off as abortion service providers (including listing themselves under headings that say “abortion” or “abortion services”). Fargo Women’s Health and First Resort strongly support the position that CPCs’ activities and advertisements constitute deceptive trade practices and commercial speech that violate consumer protection laws and lack First Amendment protections.

C. National Legislation in Conformity with NIFLA v. Becerra

Leaving aside the point that the majority virtually steamrolled Planned Parenthood v. Casey in an opinion that “lacks moral, practical, and legal force,”91 NIFLA v. Becerra is now part of our Supreme Court jurisprudence and legislatures must promulgate laws in accordance with this decision. Fortunately, lawmakers may use NIFLA v. Becerra’s detailed First Amend­ment analysis as a roadmap during legislative efforts to promulgate statutes in conformity with the Court’s constitutional interpretation of California’s FACT Act.

The Court found that notice requirement for licensed clinics compelled CPCs to “speak a particular message,” thus altering the “content of [their] speech.”92 As such, the licensed notice was a presumptively unconstitu­tional, content-based regulation subject to strict scrutiny unless it was narrowly tailored to fit compelling state interests.93 The two exceptions to strict scrutiny are disclosure of factual, non-controversial information in commercial speech and professional conduct only incidentally involving speech.94 The FACT Act fell short of constitutionality because it compelled CPCs to volunteer information about state-sponsored abortion services, the very thing CPCs advocate against.

Future legislative efforts should refrain from requiring CPCs to provide customers with a state-sponsored mandatory script containing information about abortion service providers. Instead, legislators should require CPCs to meet minimum transparency standards by informing pregnant people who inquire after abortions that the centers do not provide this service. This limits the notice requirement to “purely factual and uncontroversial information about. . . [which] services will be available.”95 It does not require clinics to provide information about state–sponsored services. It is a simple, minimally burdensome requirement that clinics maintain transparency by answering customer inquiries honestly.

Finally, the majority expressed concern that the licensed notice was “wildly underinclusive” because it only applied to clinics that have a “‘pri­mary purpose’ of ‘providing family planning or pregnancy-related services’ and that provide two of six categories of specific services.”96 As a result of the statute’s narrow focus, federal clinics, Family PACT providers, and at least 1,000 California community clinics were—without explanation—not subject to the licensed notice requirement.97 The simple fix for this concern is to simply broaden the scope of the licensed notice requirement so that it applies generally to clinics that provide services to pregnant people.

Regarding the unlicensed notice requirement, the Court did not question that states have an interest in “ensuring that ‘pregnant women. . . know when they are getting medical care from licensed professionals.’”98 The Court simply found that California’s interest, while legitimate, was “purely hypothetical” because California denied that patients were unaware unli­censed CPCs are not staffed by licensed medical professionals.99 However, it is “self-evident” that patients may believe a facility is staffed by licensed medical professionals when “they enter facilities that collect health infor­mation, perform obstetric ultrasounds or sonograms, diagnose pregnancy, and provide counseling about pregnancy options or other prenatal care.”100 States have an admittedly legitimate interest in ensuring pregnant people know they are receiving medical care from licensed professionals. In the future, states should not shy away from acknowledging that CPCs rely on misleading advertisements and should assert that patients are often unaware the CPCs they enter do not employ licensed medical professionals. Addition­ally, future legislation should cover a more general category of speakers to avoid targeting a “narrow subset of speakers.”101 Finally, to ease the risk of undue burden,102 centers should only be required to publish the disclaimer in English and the second most widely spoken language in the area where a center is located.

By carefully structuring future legislation, states will be able to justify requiring unlicensed disclosures as being narrowly tailored to serve compelling state interests—thus overcoming the presumption against constitutionality.

 

IV. Conclusion

The new wave of anti-choice activism is discreet. It relies on deception and confusion packaged in the form of seemingly friendly clinic volunteers who cheerfully hand out pamphlets claiming that abortion causes breast cancer, post-abortion stress disorder, and infertility. CPCs have been one of the most successful tactics used by anti-choice activists. Fake clinics have crept into our neighborhoods and have quietly received government funding to support their operation. They are subject to almost no regulatory restrictions or licensing standards. They look exactly like medical clinics and advertise their services under headings like “choice” and “abortion.” They are not required to inform pregnant people about available abortion services or even provide them with accurate medical information.

Abortion providers, on the other hand, are subject to strict regulation. Doctors are required to read state-mandated scripts to individuals seeking abortions. The federal government and most state governments have pro­hibited the use of federal funds for abortions unless an individual’s life is in danger or the pregnancy is the result of rape or incest.103 Pregnant people are subjected to 24-hour waiting periods, gestational limits, mandatory ultrasounds, and counseling sessions.104

CPCs have the right to operate and provide pregnancy related services. They should not, however, be given free rein to engage in government-funded false advertising and misinformation campaigns. The states and federal government should withdraw funding from CPCs to reduce the number of fake medical clinics in the United States, which now outnumber abortion service providers.105

Additionally, a narrowly tailored consumer protection law that encom­passes CPCs’ deceptive and misleading advertising tactics should be imple­mented. Although NIFLA v. Becerra dealt a hard blow to state efforts to regulate CPCs’ activities, the majority opinion provided a roadmap for future legislative efforts. States should reformulate their statutes and reimplement legislation in conformity with NIFLA v. Becerra. Implementing these policy initiatives will reaffirm the state’s commitment to the separation of church and state, support for reproductive health, and a constitutionally protected right to abortion.

 

NOTES

 

1. 12th & Delaware (HBO 2010).

 

2. Id.

 

3. Id.

 

4. Id.

 

5. Id.

 

6. 2017 Violence and Disruption Statistics, National Abortion Federation (2017), https:// prochoice.org/wp-content/uploads/2017-NAF-Violence-and-Disruption-Statistics.pdf.

 

7. Roe v. Wade, 410 U.S. 113 (1973) (holding that women have a right to privacy under the 14th Amendment’s Due Process Clause when seeking an abortion).

 

8. Mary Ziegler, Beyond Backlash: Legal History, Polarization, and Roe v. Wade, 71 W.L.L.R. 969, 1005 (2014).

 

9. Cal. Health & Safety Code § 123470.

 

10. National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (2018).

 

11. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 882-83 (1992).

 

12. Amy G. Bryant & Jonas J. Swartz, Why Crisis Pregnancy Centers Are Legal but Unethical, AMAJ. Ethics (Mar 2018),https://journalofethics.ama-assn.org/article/ why-crisis-pregnancy-centers-are-legal-unethical/2018-03.

 

13. Id.

 

14. Alice X. Chen, Crisis Pregnancy Centers: Impeding the Right to Informed Decision Making, 19 Cardozo J.L. & Gender 933, 934 (2013).

 

15. Id.; Sam Levin, Google Search Results for Abortion Services Promote Anti-Abortion Centers, Guardian(Feb. 13, 2018), https://www.theguardian.com/world/2018/feb/13/ abortions-near-me-google-search-results-anti-pro-life-groups-promote.

 

16 Brittany A. Campbell, The Crisis Inside Crisis Pregnancy Centers: How To Stop These Facilities From Depriving Women of their Reproductive Freedom, 37 B.C.J.L. & Soc. Just. 73, 78 (2017).

 

17. Lisa McIntire, Crisis Pregnancy Centers Lie: The Insidious Threat to Reproductive Freedom, NARALPro-Choice America, 1, 13 (2015), https://www.prochoiceamerica. org/wp-content/uploads/2017/04/cpc-report-2015.pdf;

 

18. Media Highlights—2018, Nat’l Women’s Health Network, https://nwhn.org/media-highlights-2017/ (last visited Mar. 6, 2019).

 

19. Dawn Stacey, The Pregnancy Center Movement: History of Crisis Pregnancy Centers, Mother Jones, 1, 2 www.motherjones.com/files/cpchistory2.pdf (Pearson stated in a 1994 speech that a “. . . girl who wants to kill her baby, has no right to information that will help her kill her baby.”).

 

20. 410 U.S. 113 (1973).

 

21. Campbell, supra note 16, at 81.

 

22. Victoria Colliver, Supreme Court Sides with Crisis Pregnancy Centers in Fight Over California Law, Politico (Jun. 26, 2018), https://www.politico.com/story/2018/06/26/ supreme-court-crisis-pregnancy-centers-673183.

 

23. Madelyn McKeague, The Fake News Behind Fake Health Centers, Nat’l Women’s Health Network ( NWHN) ( Mar. 1 9, 2 018), h ttps://www.nwhn.org/ fake-news-behind-fake-health-centers/.

 

24. Chen, supra note 14, at 953.

 

25. The Truth About Crisis Pregnancy Centers, NARALPro-Choice America (Jan 1, 2017) [hereinafter NARAL America CPC Report], https://www.prochoiceamerica.org/ wp-content/uploads/2016/12/6.-The-Truth-About-Crisis-Pregnancy-Centers.pdf.

 

26. Allison Yarrow, The Abortion War’s Special Ops, Newsweek (Aug. 20, 2014), https:// www.newsweek.com/2014/08/29/inside-covert-abortion-war-265866.html.

 

27. Meaghan Winter, “Save the Mother, Save the Baby”: An Inside Look at a Pregnancy Center Conference, Cosmopolitan(Apr. 6, 2015), https://www.cosmopolitan.com/ politics/a38642/heartbeat-international-conference-crisis-pregnancy-centers-abortion/.

 

28. NARAL America CPC Report, supra note 25, at 2.

 

29. What are the Fake Clinics in Your Community?, ExposeFakeClinics.com, https://www. exposefakeclinics.com/cpc (last visited Mar. 7 2019).

 

30. NARAL America CPC Report, supra note 25, at 1.

 

31. Id.

 

32. Clio Chang, When Anti-Abortion Activists Mislead, Women Suffer, The Century Foundation(Oct. 14, 2015), https://tcf.org/content/commentary/when-anti-abortion-activists-mislead-women-suffer/.

 

33. Chen, supra note 14, at 954; Maryland Crisis Pregnancy Center Investigations: The Truth Revealed, NARAL Pro-Choice Maryland Fund 1, 4 (Jan. 14, 2008). A Maryland CPC brochure stated that abortion could increase chances of being diagnosed with breast cancer by 800 percent and volunteers at that CPC told patients that many patients bleed to death on the operating table while undergoing abortions. Id

.

 

34. Abortion & Choice, Care Net Pregnancy Center ofNorthernCalifornia, https:// www.carenetnorcal.org/abortion/ (last visited Mar. 8, 2019); 12th & Delaware (HBO 2010).

 

35. Chen, supra note 14, at 956-67; McIntire, supra note 17, at 11; The Deceptive Practice of Limited Service Pregnancy Centers: A Report, Legal Voice and Planned Parenthood Votes! Washington, 1, 9 (2009). A CPC volunteer stated that condoms have a 50 percent failure rate and do not protect against STDs. Id

.

 

36. NARAL America CPC Report, supra note 25, at 6.

 

37. What Exactly is a Fake Clinic?, ExposeFakeClinics.com, https://www.exposefake­clinics.com/what-is-a-cpc-2 (last visited Mar. 24, 2019).

 

38. Maggi J. Buchanan et al., The Anti-Choice Movement’s Continued Pursuit of Politicized Medicine, Center for AmericanProgress (Mar. 14, 2018), https://www.american progress.org/issues/women/reports/2018/03/14/447885anti-choice-movements-continued-pursuit-politicized-medicine/.

 

39. NARAL America CPC Report, supra note 25, at 8.

 

40. Buchanan, supra note 38.

 

41. Id.

 

42. Id.

 

43. Id.

 

44. Megan Burrows, Despite Court Order, Trump Continues to Pressure Immigrants into Carrying Unwanted Pregnancies, ACLU (May 7, 2018), https://www.aclu.org/ blog/reproductive-freedom/abortion/despite-court-order-trump-continues-pressure-immigrants-carrying.

 

45. Stephanie Loraine, I Was Once Jane Doe, Too, and Today I Suffer for Her, UnivisionNews (Oct. 25, 2017), https://www.univision.com/univision-news/opinion/i-was-once-jane-doe-too-and-today-i-suffer-for-her.

 

46. Teddy Wilson, State-Level Republicans Pour Taxpayer Money into Fake Clinics at an Unprecedented Pace (Updated), Rewire.News (Feb. 16, 2018), https://rewire. news/article/2018/02/16/state-level-republicans-pour-taxpayer-money-fake-clinics-unprecedented-pace/. States engaging in these activities are Florida, Georgia, Indiana, Kansas, Louisiana, Michigan, Minnesota, Missouri, North Carolina, North Dakota, Ohio, Pennsylvania, Texas, and Wisconsin. Texas accounts for over half of that $40.5 million figure. Id.

 

47. Andrea Swartzendruber & Danielle Lambert, Crisis Pregnancy Center Map & Finder, Crisis Pregnancy Center Map, https://crisispregnancycentermap.com (last visited Mar. 23, 2019); Rebecca Harrington & Skye Gould, The Number of Abortion Clinics in the US Has Plunged in the Last Decade—Here’s How Many Are in Each State, Business Insider (Feb. 10, 2017), https://www.businessinsider.com/ how-many-abortion-clinics-are-in-america-each-state-2017-2.

 

48. ‘Choose Life’ License Plates, Guttmacher Institute, https://www.guttmacher.org/state-policy/explore/choose-life-license-plates (last visited Mar. 23, 2019).

 

49. Chen, supra note 14, at 938-89.

 

50. Pub. L. 94-439, Sept. 30, 1976, 90 Stat. 1418.

 

51. Alina Salganicoff et al., The Hyde Amendment and Coverage for Abortion Services, Henry J. Kaiser Family Foundation (Oct. 16, 2017), https://www.kff.org/womens-health-policy/ perspective/the-hyde-amendment-and-coverage-for-abortion-services/.

 

52. National Institute of Family and Life Advocates v. Becerra, 138 S.Ct. 2361, 2365 (2018).

 

53. 2015 Cal. Legis. Serv. Ch. 700, § 2 (A.B. 775) (West) (Cal. Legis. Serv.).

 

54. NIFLA v. Becerra, 138 S.Ct. at 2365.

 

55. Id. at 2365.

 

56. Id. at 2367.

 

57. Id. at 2365 (citing Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015)).

 

58. Id. at 2366.

 

59. Id.

 

60. Id.

 

61. Id. at 2367.

 

62. Id.

 

63. Id.

 

64. Id.

 

65. Id.

 

66. Id. at 2380.

 

67. Id. at 2384 (citing Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 881 (1992)).

 

68. Id. at 2385.

 

69. Id..

 

70. Everson v. Board of Education of Ewing Township, 330 U.S. 1, 14-15 (1947) (quoting Reynolds v. United States, 98 U.S. 145, 164 (1878)).

 

71. Lemon v. Kurtzman, 403 U.S. 602 (1971).

 

72. Id. at 612-3 (quoting Walz v. Tax Commission of City of New York, 397 U.S. 664, 674 (1970)).

 

73. Lemon, 403 U.S. at 612.

 

74. Mission & Vision, Care Net, https://www.care-net.org/mission-and-vision (last visited Mar. 24, 2019).

 

75. Will the Deception Ever End?: An Investigative Report of Anti-Choice Crisis Pregnancy Centers in Maryland (Appendix C: CPC On-Site Survey Results), NARAL Pro-Choice Maryland Fund (May 2018), https://maryland.prochoiceamericaaffiliates.org/wp-content/uploads/sites/11/2018/05/CPC-report-NPCMF-053118-FINAL.pdf.

 

76. Beth Holtzman, Have Crisis Pregnancy Centers Finally Met Their Match: California’s Reproductive FACT Act, 12 Nw. J. L. & Soc. Pol’y. 78, 109 (2017).

 

77. See Colliver, supra note 22.

 

78. Lemon, 403 U.S. at 612.

 

79. NIFLA v. Becerra, 138 S.Ct. at 2372, 2380 (Breyer, J., dissenting) (quoting the major­ity opinion).

 

80. Id. at 2372 (quoting Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985)).

 

81. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. 425 U.S. 748, 771-72 (1976).

 

82. 15 U.S.C. § 45; Moore v. N.Y. Cotton Exchange, 270 U.S. 593, 602 (1926) (holding that individuals do not have standing to bring a lawsuit under the FTC Act).

 

83. Carolyn L. Carter, A 50-State Report on Unfair and Deceptive Acts and Practices Statutes, National Consumer Law Center 1, 5 (Feb. 2009), https://www.nclc.org/images/ pdf/udap/report_50_states.pdf.

 

84. The current version of this Act, titled the Revised Uniform Deceptive Trade Practices Act, appears in the Handbook of the National Conference of Commissioners on Uniform State Laws 306-315 (1966).

 

85. Uniform Act § 2(a).

 

86. Id. §§ 2(b), 3(a).

 

87. Camps Newfound/Owatonna, Inc. v. Town of Harrison, Maine, 520 U.S. 564, 573 (1997).

 

88. WWP, In. v. Wounded Warriors Family Support, Inc., 628 F.3d 1032, 1038 (8th Cir. 2011); Fargo Women’s Health Org., Inc. v. Larson, 381 N.W.2d 176 (N.D.), cert denied, 476 U.S. 1108 (1986) (upholding a preliminary injunction preventing a CPC from engaging in deceptive advertising designed to trick pregnant people into believing it provided abortions).

 

89. 860 F.3d 1263, 1272 (9th Cir. 2017). First Resort was decided in 2017 but was not over­turned as a result of NIFLA v. Becerra. California government officials emphasized that the Ordinance did not impose unwanted speech and was narrowly tailored to protect consumers by prohibiting CPCs from propagating misleading advertisements. Id. at 1269.

 

90. Id. (quoting Fargo Women’s Health Org., 381 N.W.2d at 181).

 

91. NIFLA v. Becerra, 138 S.Ct. 2361, 2385 (2018) (Breyer, J., dissenting) (writing that the majority opinion’s attempt to distinguish Planned Parenthood v. Casey as “concerning a regulation of professional conduct that only incidentally burdened speech. . . lacks moral, practical, and legal force.”).

 

92. Id. at 2371 (quoting Riley v. National Federation of the Blind of N.C., Inc., 487 U.S. 781, 795 (1988).

 

93. Id.

 

94. Id. at 2372.

 

95. Zauderer, 471 U.S. at 651.

 

96. NIFLA v. Becerra, 138 S.Ct. at 2375 (quoting Cal. Health & Safety Code § 123471(a)).

 

97. Id. at 2375-76.

 

98. Id. at 2389 (Breyer, J., dissenting) (quoting the majority opinion).

 

99. Id. at 2377. The court also noted that many of the services CPCs provide (collecting health information, counseling, and over-the-counter pregnancy tests) do not require a medical license and that it is a crime to practice medicine without a medical license in California. Id.

 

100. Id. at 2390 (Breyer, J., dissenting); Milavetz, Gallop & Milavetz, P.A. v. U.S., 559 U.S. 229, 250-51 (2010) (stating that “advertisements for professional services pose a special risk of deception” and finding that “When the possibility of deception is. . . self-evident . . . the State [need not] conduct a survey of the. . . public before it [may] determine that the [advertisement] had a tendency to mislead.”) (internal citations omitted).

 

101. Id. at 2377.

 

102. The majority expressed concern that the statute may require centers to publish the notices in as many as 13 languages. Id. at 2378.

 

103. State Funding of Abortion Under Medicaid, Guttmacher Institute (Mar. 1, 2019), https:// www.guttmacher.org/state-policy/explore/state-funding-abortion-under-medicaid. Id.

 

104. Counseling and Waiting Periods for Abortion, Guttmacher Institute (Mar. 1, 2019), https:// www.guttmacher.org/state-policy/explore/counseling-and-waiting-periods-abortion.

 

105. McKeague, supra note 23.