RECLAIMING ACCESS TO TRUTH IN REPRODUCTIVE HEALTHCARE AFTER NATIONAL INSTITUTE OF FAMILY & LIFE ADVOCATES V. BECERRA.

• Author: Kee, Diane

Crisis Pregnancy Centers (CPCs) are antiabortion organizations that seek to "intercept" people with unintended pregnancies to convince them to forego abortion. It is well documented that CPCs intentionally present themselves as medical professionals even when they lack licensure, while also providing medically inaccurate information on abortion. To combat the blatant deception committed by CPCs, California passed the Reproductive FACT Act in 2015. The Act required CPCs to post notices that disclosed their licensure status and informed potential clients that the state provided subsidized abortion and contraceptives. Soon after, CPCs brought First Amendment challenges to these disclosure requirements, claiming that the state could not compel them to speak a message against their will. In 2018, the Supreme Court decided National Institute of Family and Life Advocates (NIFLA) v. Becerra and constitutionalized CPCs' efforts to evade regulation from state-mandated compelled disclosures--disclosures not dissimilar to those regularly imposed on other businesses and medical professionals.

Although CPCs use the guise of professionalism to increase their credibility, they are not held to the same standards as actual medical professionals. States can force abortion providers to violate ethical codes by requiring them to give patients medically inaccurate information as "informed consent, " yet CPCs cannot be compelled to say anything because they are not real professionals. This Note argues that while there are striking parallels between abortion-related informed consent laws and compelled informational disclosures like the CPC disclosures at issue in NIFLA, the Court has refused to treat pro-choice speech in a manner similar to antiabortion speech. Moreover, though NIFLA has drastically limited the types of CPC regulations that prochoice governments can implement, there are still ways in which these states can and should curb CPCs' deceptive practices.

INTRODUCTION I. COMMERCIAL SPEECH DOCTRINE AND CRISIS PREGNANCY CENTER DISCLOSURES A. When Speech May Be Compelled B. Compelled Speech in Crisis Pregnancy Centers and NIFLA C. Uneven Application of Compelled Speech Doctrine in the Abortion Context II. COMPELLED COMMERCIAL DISCLOSURES UNDER ZAUDERER AND THE PARALLELS TO INFORMED CONSENT REQUIREMENTS A. Compelled Commercial Disclosures Under Zauderer B. Abortion-Related Informed Consent Requirements C. CPCs as Pseudo-Professionals III. PROPOSING SOLUTIONS A. Legislation Prohibiting CPCs from Making False Claims Guided by Alvarez B. Using Existing Laws to Regulate CPCs C. Torts of Negligent and Fraudulent Misrepresentation CONCLUSION INTRODUCTION

In recent years, the rapid growth of Crisis Pregnancy Centers (CPCs) in the United States has alarmed pro-choice legislators and activists. (1) CPCs are antiabortion organizations that use deceptive practices to draw pregnant people into their centers, (2) aiming to convince them to carry their pregnancies to term by providing medical misinformation on abortion. (3) CPCs attract primarily young, low-income clientele by offering free medical services like sonograms and pregnancy tests. (4) Although CPCs are often unlicensed and staffed by lay volunteers, they are designed to look like real healthcare facilities, going so far as dressing volunteers in white lab coats and asking clients to fill out standardized forms to "replicate [] the look and feel of a typical medical office." (5) CPCs also use a "co-location" strategy, establishing facilities near abortion clinics to confuse and intercept pregnant people on their way to receive actual abortion care. (6) These efforts to obfuscate extend to the digital space, where CPCs have been known to run targeted advertisements for their facilities atop Google search results for words like "abortion" and "morning-after pill." (7) Despite this campaign to link CPCs with abortion services and education, CPCs do not actually provide abortions or abortion referrals. (8) Instead, CPCs provide medically inaccurate information about the health risks of abortion and intentionally mislead clients into believing that they can delay seeking abortion care. (9)

Pro-choice states and cities have attempted to regulate CPC conduct by requiring CPCs to inform potential clients of their unlicensed status and to disclose the availability of state-subsidized abortion and contraceptives. (10) To avoid making these disclosures, CPCs have successfully raised First Amendment challenges to the regulations, claiming that the state could not force them to share this information against their will. (11) In 2018, the Supreme Court decided National Institute of Family and Life Advocates (NIFLA) v. Becerra and constitutionalized CPCs' efforts to evade regulation from state-mandated compelled disclosures--disclosures not dissimilar to those regularly imposed on other businesses and medical professionals. (12) By finding that disclosures related to licensure and state-subsidized reproductive healthcare were "anything but ... 'uncontroversiaf" and not part of obtaining informed consent for a medical procedure, (13) the NIFLA Court allowed CPCs to "weaponiz[e] the First Amendment," (14) leaving vulnerable people at the other end of the sword.

NIFLA is just the latest example of troublingly uneven application of First Amendment principles in the abortion-rights context. Since Planned Parenthood v. Casey was decided in 1992, antiabortion informed consent requirements have grown increasingly extreme, requiring doctors to give medically inaccurate information to abortion patients. (15) When challenged, these laws must only survive rational basis review. (16) On the other hand, CPCs use deceptive practices to lure clients into their centers, even dressing their volunteers like doctors to increase credibility. (17) But after NIFLA, a court evaluating a CPC disclosure requirement will apply strict scrutiny, making it difficult for states to combat CPC deception through speech-related means. (18) This Note argues that while there are striking parallels between abortion-related informed consent laws and compelled informational disclosures like the CPC disclosures at issue in NIFLA, the Court has refused to treat prochoice speech in a manner similar to antiabortion speech. Moreover, though NIFLA has drastically limited the types of CPC regulations that pro-choice governments can implement, there are still ways in which these states can and should curb CPCs' deceptive practices.

Part I traces the development of the commercial speech doctrine and the prevalence of state-mandated disclosures in commercial settings. Part I also discusses failed attempts at implementing CPC compelled disclosures and explains how the holding of NIFLA has foreclosed certain speech-related solutions for preventing CPC deception. Part II further explores the legal standards that courts use to evaluate compelled commercial speech and describes the similarities between compelled commercial disclosures and informed consent laws. In addition, Part II identifies why it is especially troublesome that CPCs operate under the guise of professionalism but cannot be regulated as actual professionals. Lastly, Part III proposes three potential solutions to prevent CPCs from engaging in deceptive practices. First, even though NIFLA clearly signals that states cannot compel CPCs to make disclosures, states may still legislate to prohibit CPCs from making false claims related to pregnancy and abortion. In addition, this Note proposes two other solutions that intentionally avoid implicating First Amendment issues altogether--arguably the most prudent path forward for pro-choice states after NIFLA.

1. COMMERCIAL SPEECH DOCTRINE AND CRISIS PREGNANCY CENTER DISCLOSURES

   Before NIFLA, several states and cities implemented CPC disclosure requirements in response to growing evidence that deception and misinformation were integral to CPCs' strategy of luring unsuspecting people into their centers. (19) For example, New York City passed a comprehensive CPC disclosure ordinance after finding that CPCs engaged in deceptive practices, including misleading clients about the services available at the centers. (20) Although the First Amendment generally prohibits states from compelling an unwilling speaker to deliver a certain message, this Part begins by discussing the prevalence of compelled disclosures in the context of commercial speech. Section LA also traces the development of the commercial speech doctrine, which recognizes that speech made for the purpose of effecting a commercial transaction receives limited First Amendment protection and allows states to more easily impose compelled disclosures on commercial actors. Section LB analyzes how California's Reproductive FACT Act, the law at issue in NIFLA, was struck down as an impermissible compelled commercial speech disclosure. Finally, Part I.C describes courts' incongruent treatment of prochoice and antiabortion speech, a disparity made most clear when comparing CPC disclosure requirements (which have almost invariably been struck down) to antiabortion informed consent laws (which have almost always survived judicial review).

   1. When Speech May Be Compelled

      It is axiomatic in First Amendment jurisprudence that "freedom of speech prohibits the government from telling people what they must say." (21) Nonetheless, the government can compel individuals and organizations to speak without running afoul of the First Amendment's general proscription against compelled speech by legally "require[ing] them to provide somewhat more information than they might otherwise be inclined to present." (22) For example, attorneys can be compelled to turn over the names and tax-identification numbers of their clients to the IRS, (23) disclose to clients that they may be liable for other costs even if the attorney is hired on a contingent-fee basis, (24) and inform clients seeking debt-relief...