WHAT'S OLD IS NEW AGAIN: HOW STATE ATTORNEYS GENERAL CAN REINVIGORATE UDAP ENFORCEMENT TO COMBAT CRISIS PREGNANCY CENTER DECEPTION.

• Author: Vlach, Kate

INTRODUCTION

For as long as public health and women's rights advocates have fought to expand access to abortion services, opponents of abortion have tried to stop women from choosing this option--whether by taking aim at the procedure's legal status or by steering women away from abortion even as it remains legal. Crisis pregnancy centers (CPCs) are proponents of this second approach. These anti-abortion centers are often set up to resemble legitimate reproductive health clinics but exist to dissuade women from obtaining abortions. Today, there are fewer than 1,000 abortion clinics nationwide (1) but as many as 3,500 CPCs. (2) In some states, CPCs outnumber abortion providers ten to one. (3) The problem with CPCs, however, is not that they advance an anti-abortion perspective. It is that many rely on deception to achieve their desired ends.

In 1991 the medical director of a network of abortion providers testified before Congress during a hearing on CPC fraud and relayed the story of a patient he had spoken to in North Dakota a few weeks prior. (4) A young woman in her early twenties had gone to a crisis pregnancy center for a pregnancy test and was told the results were negative: She wasn't pregnant. (5) After several weeks, she sought a second opinion at another facility that revealed she was nineteen weeks pregnant. (6)

They computed that the first time she went to the [CPC] she was actually fourteen weeks pregnant. You wonder why [the CPC] would lie to her like this. Well, the answer is very simple. There are no abortion providers in that State that perform abortions after fifteen weeks. The idea was to prolong the pregnancy so the woman could not get an abortion in that State, and to that extent they succeeded, but the woman is still going to have an abortion; the only difference is, she is going to have to travel to another State at great cost. (7) In 2018, an emergency room physician in Connecticut recounted a similar tale of a young woman who faced deception-driven delays in accessing an abortion, this time with more severe consequences:

She revealed to me that she was hiding her pregnancy from her family and had been seeing a women's center, a crisis pregnancy center, in Hartford because she wanted a termination. She told me she had gone every few weeks for [the] last few months, but was not given any instructions on how to have an abortion yet. Performing her ultrasound, I was able to determine her fetus was [twenty-five] weeks and [four] days, past the legal limit for abortion. I had to tell her that even though she had clearly indicated her desire to terminate ... months prior, now she had no choice in the matter[.] (8) These women sought time-sensitive reproductive health care from what they thought were legitimate medical providers. Instead, they were lied to about their bodies and misled about the laws in their states. The harm they suffered was pronounced--potentially life-altering. And it risks repetition any time a woman, tricked into thinking she is entering an abortion clinic, ends up at one of the nation's crisis pregnancy centers instead.

As the span of these stories demonstrates, the problem of CPC fraud has persisted for decades. Over the years, governmental response to this deception has proceeded at a low hum with two key periods of activity. One was centered primarily in the 1980s and 1990s, when a handful of state attorneys general (AGs) used all-purpose consumer protection laws to launch investigations and lawsuits to uncover and enjoin CPCs' harmful tactics. (9) The other ran from 2009 to 2018, when interest in CPC-specific legislation eclipsed AG activity, and multiple city councils and state legislatures passed laws requiring CPCs to warn clients about the true nature of their services. (10)

But in 2018, the Supreme Court dealt a blow to these more recent efforts to protect women from CPC fraud in National Institute of Family & Life Advocates v. Becerra, when it struck down California's law requiring CPCs to post disclaimers in their waiting rooms and on their advertisements. (11) In the wake of that decision, most regulations specifically aimed at CPCs are now invalid, leaving states and localities in need of new solutions to address the ongoing deception and delays in access to care that CPCs can cause.

This Article argues that such a solution can be found by looking back to an existing set of consumer protection laws: state Unfair and Deceptive Acts and Practices statutes--UDAP statutes for short--which have been on the books for decades. Designed to combat deceptive practices in the sale or offer of goods and services, it was to these laws that states first turned to curb CPCs' deceptive tactics, almost always without constitutional impediment. Even though UDAP statutes cast state AGs in an active enforcement role and equipped them with powerful legal tools, public UDAP enforcement actions never reached their full potential. Rather, state UDAP investigations of and enforcements against deceptive CPCs were limited to a handful of states and fell out of favor in the 2000s as CPC disclaimer efforts took center stage. (12)

Now, as state AGs rise to prominence on the nationwide policymaking scene, states should reinvigorate and update these all-purpose consumer protection tools. Through a coordinated campaign of AG enforcement that advances broad readings of current UDAP language, along with legislative amendments that clarify and expand the scope of UDAP statutes, states can press forward with tackling CPC fraud while avoiding the constraints imposed by the Supreme Court's recent decision.

Section I defines CPCs, describes some of their most dishonest tactics, and summarizes the impact of the Supreme Court's recent ruling on legislation designed to curb CPC harm. Section II recommends UDAP statutes as an alternative tool for responding to CPC deception and reviews the advantages of a UDAP enforcement strategy led by state attorneys general. Section III grapples with and proposes arguments for overcoming the imperfect fit between UDAP laws, which typically apply to commercial actors, and the regulation of not-for-profit CPCs. Section IV explores whether a robust UDAP enforcement campaign can adequately address deception that robs individuals of critical decision-making opportunities and proposes a UDAP amendment that recognizes decision-making harms. Finally, the Article concludes by updating readers on recent CPC-related developments and by suggesting a wrap-around campaign of community partnerships and communications efforts to supplement AGs' legal enforcement activities.

Methodologically, this Article focuses on UDAP statutes and case law in the six states where governments have legislated to curb CPC deception, as these are the venues where state or local officials are likely to be in search of alternatives to disclosure laws. (13) At the same time, state courts also look to UDAP decisions outside their own jurisdictions in light of many UDAP statutes' common origins in the Federal Trade Commission (FTC) Act and other model legislation. (14) Thus this Article draws from UDAP jurisprudence more broadly when other states offer relevant examples. Although UDAP statutes vary considerably across jurisdictions, states that have not yet tackled CPC fraud will also find this Article of use.

1. Crisis Pregnancy Centers and Efforts to Curb their Deception

   1. CPCs and Their Deceptive Practices

      CPCs are anti-abortion centers that often pose as reproductive health clinics but offer limited, if any, medical services. They frequently advertise free pregnancy tests, ultrasounds, and abortion-related services, but then try to prevent the women who visit from obtaining abortion care. Instead, CPC staff and volunteers use a variety of tactics to convince women to carry their pregnancies to term. While some CPCs may make their anti-abortion stance clear and provide appropriate assistance to women facing unintended pregnancies, many do not. In fact, one famous CPC advocate was recorded advising CPC operators to rely on concealment and misdirection: "We want to appear neutral on the outside. The best call, the best client you ever get is one that thinks they're walking into an abortion clinic.' (15)

      Ninety percent of counties in the United States lack an abortion provider, and in some states CPCs outnumber abortion clinics ten to one. (16) With free services that appeal to marginalized populations uninitiated to the health systems they are navigating, (17) and a track record of tricking clients about the services they will receive, deceptive CPCs can impose significant health- and autonomy-related costs on unwitting consumers.

      This Section summarizes findings from more than a decade's worth of investigative reports, academic studies, news accounts, and law review articles, which suggest that a significant number of CPCs engage in some form of deception as part of their operational models. For example, in 2006 Congress produced a report detailing the misinformation that CPCs distributed about abortion and birth control; it found that eighty-seven percent of surveyed centers provided false or misleading information. (18) Abortion-rights organizations have conducted undercover investigations of CPCs across the country and, since 2008, have released comprehensive reports of their findings in at least eleven states: From North Carolina to Ohio and New York to California, majorities or significant pluralities of CPCs were shown to have lied about abortion risks or the legal and medical constraints on abortion access. (19) Public health scholars have also surveyed the landscape, finding in Georgia, for instance, that fifty-eight percent of the state's CPCs implied that they provided abortions but failed to disclose that this was not the case, and fifty-three percent made at least one false or misleading health statement on their websites. (20)

      Collectively, this body of evidence indicates...