Truth in Advertising

• Author: Mark Walsh
• Pages: 20-21

The centers have been around

for more than 25 years, w ith many

setting up near abort ion providers

and, critics say, using mislead ing

advertising and promotion to at tract

women who intend to end pregnan-

cies—but instead counseli ng them

toward giving birth.

California sought to ens ure that

poor women were aware of the

free serv ices available under state

auspices and to help women avoid

confusion a bout whether they were

receiving care a nd advice from

medical professionals.

“The legislature re viewed evidence

about so-called c risis pregnancy

centers, fi nding that they f requently

provide women with medical ly inac-

curate information,” said California

Attorney General X avier Becerra in

a brief fi led with the U.S. Supreme

Court in Nationa l Institute of Family

and Life Advocates v. Becer ra, to be

argued March 20. “At the same time,

some facilities o er serv ices such as

pregnanc y testing and ultr asound

examinations, whic h can lead

women to believe they are receiv ing

treatment in a medical set ting.”

POSTING THE FACTS

The Reproductive Freedom,

Accountability, Comprehensive

Care and Transparency Ac t, known

as the Reproductive FACT Act, has

two main provisions. O ne requires

certain licen sed medical facilities to

disclose to women that the state h as

publicly funded programs prov iding

comprehensive family planning

services.

This notice must be provided to

clients in a pamphlet, electr onically

at check-in or on a waiting room

sign. It reads: “Californi a has public

programs that prov ide immediate

free or low-cost acce ss to compre-

hensive family planning ser vices

(including all FDA-approved meth-

ods of contraception), prenatal care

and abortion for eligible women. To

determi ne whether you qualif y, con -

tact the county so cial services o ce

at [insert t he telephone number].”

A second provision of the law

addresses unl icensed pregnancy

centers, which don’t have a licensed

medical provider on sta  but may

provide service s such as pregnancy

testing, obstetr ic ultrasounds and

sonograms or prenatal c are.

Such unlicensed faci lities must

post a notice in entrance are as and

in advertisements st ating that the

“facility is not lic ensed as a medical

facility by the st ate of California and

has no licensed medica l provider

who provides or directly super vises

the provision of servic es.”

The plainti s, who include a

national group representing such

pregnancy centers a nd several

individual centers, a rgue that

the requirement is a form of com-

pelled speech that v iolates the First

Amendment’s free speech clause.

“This case i s about compelled

speech and ... forcing these centers

to provide free adver tising for abor-

tion,” says lawyer Kevin H. Theriot

of the Alliance De fending Freedom

in Scottsda le, Arizona, which is

representing the National Institut e

of Family and Life Advocate s and

two of its member centers.

NIFLA , based in Fredericksburg,

Virginia , supports more than 1,400

nonprofi t pregnancy centers nation-

wide and over 130 in Califor nia.

Most, if not all, of the centers a re

owned by people with religious-

based objections to abor tion.

In California , some NIFLA

members are licensed medica l

providers, and they provide healt h

services such a s pregnancy testing,

prenatal vita mins, ultrasound exam-

inations, medical refer rals and STD

testing. Such centers must prov ide

the notice about the availabilit y of

free family plan ning services, includ-

ing the mention of ab ortion.

Many centers, though, are un li-

censed facilitie s that provide non-

medical serv ices such as pregnancy

test kits that women ad minister

themselves; emot ional support;

spiritual resourc es; preparation for

parenting; and free provi sion of such

items as maternit y and baby cloth-

ing, baby food and formula, di apers,

strollers and nursery f urniture. But

they also may provide ser vices such

as sonogra ms and ultrasound s.

“For us, the essence of this case

is about First Amendment rights ,”

says Anne O’Connor, NIFL A’s vice

president of legal a airs. “American s

should not be forced by the govern-

ment to promote a message that

confl icts wit h our beliefs.”

The challengers contend that

the Reproductive FACT Act was

targeted to c over the 200 or so crisis

pregnancy centers in C alifornia and

does not impose the requirement

on facilities that prov ide abortions.

Indeed, licens ed medical facil ities

Supreme

Court

Report

Truth in Advertising

Court to weigh whether law aimed at crisis pregnancy centers

violates First Amendment By Mark Walsh

In 2015, the California legislature enacted a law

aimed largely at the fi eld of crisis pregnancy centers

—licensed and unlicensed facilities that exist to steer

women away from abortion.

20 || ABA JOURNAL MARCH 2018

The Docket