August 2018 Bar Bulletin
By Fajer Saeed Ebrahim
In 2017, the King County Board of Health enacted an ordinance requiring limited service pregnancy centers — also known as crisis pregnancy centers — to indicate to consumers that they are not healthcare facilities.1 The rule requires these centers to post signs stating, “This facility is not a health care facility.”2
The rule was enacted to help ensure that people who enter such centers know that they are not entering a reproductive health clinic, and will need to go elsewhere for healthcare services, especially contraception and abortion.3
Crisis pregnancy centers take it as their mission to stop pregnant people from having abortions or using contraceptives, and to encourage people to carry their pregnancies to term.4 These organizations are typically nonprofits with religious affiliations.5 Many of them also provide free resources, such as baby clothes, diapers and strollers to new parents.6 Some also provide parenting support classes.7 They frequently set up near actual reproductive health clinics8 and are increasingly using vans parked nearby as well.9
It is not the donated baby clothes and strollers that undermine public health and people’s right to make informed decisions about abortion, contraception and adoption. The problem is that many of these centers lure people in with the promise of free services and counseling, and instead, give information about abortion and contraception that is medically inaccurate, sometimes outright false, and dangerous to public health.
While these centers often pose as healthcare facilities, many have no licensed medical staff members.10 Many offer ultrasound imaging of a pregnancy, but frequently have no healthcare provider on staff who is qualified to make a diagnosis from an ultrasound.11 When called and asked about abortion services, such centers are often deliberately vague, convincing callers to come in for an in-person visit at the center, knowing full well that they will never provide that person with the healthcare they need.12
Once the person needing care is in the door, many centers employ a strategy of misinformation, fear and shame.13 All of this is done in an effort to prevent people from obtaining timely access to abortion care.
Low-income and uninsured people, whose ability to access other resources is severely limited and who are often desperate for timely reproductive care, are disproportionately harmed by the acts of some crisis pregnancy centers. Recently, Office of Refugee Resettlement Director Scott Lloyd, who tried to stop a pregnant, unaccompanied teenager from accessing an abortion, began directing pregnant teens in the office’s care to crisis pregnancy centers, rather than providing them with the reproductive healthcare they need.14
The people in our communities who lack information or access to healthcare are most likely to find themselves in a crisis pregnancy center instead of a legitimate health clinic. King County’s Board of Health recognized this harm and acted to address it by a simple rule: requiring pregnancy centers that do not have healthcare providers on staff to post the sign noted above.15 Centers must also include the notice on their website, and the sign and the notice must be conspicuous, and in English and other languages frequently spoken in King County.16
Like King County, California was similarly concerned that the deceptive practices of crisis pregnancy centers would prevent people from getting timely access to birth control, abortion and prenatal care. But in NIFLA v. Becerra, decided in June, a divided U.S. Supreme Court upheld a First Amendment challenge to California’s Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act.17
The FACT Act requires facilities licensed as pregnancy centers to display a short statement noting that California offers free and low-cost abortion care and birth control, alongside a number to call for more information.18 Unlicensed centers, on the other hand, had only to disclose that they are not medical facilities and do not offer medical care.19
The Act was intended to require crisis pregnancy centers to be direct about their services, as they use “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.”20
There are myriad circumstances where disclosures are needed to protect people from harm and deception — when borrowing money, when reviewing mortgage documents, when buying a used a car. In this context, arguably much more is at stake — a person’s ability to avoid an unplanned pregnancy, to decide whether to become a parent, to know where to get safe and timely medical care. Indeed, the law recognizes the importance of what is at stake by requiring all healthcare providers to obtain informed consent to treat a patient.21
In the context of pregnancy, which is a medical condition that can have a host of healthcare consequences, informed consent is just as, if not more, necessary. The American College of Gynecologists defines “informed consent” as the need to respect the patient as a person, especially when it comes to their moral right to bodily integrity, self-determination, and freedom to make meaningful decisions regarding their sexuality and reproductive care.22 With pregnancy-related care specifically, informed consent discussions must cover contraception and a provider may not impose their personal beliefs on a patient.23
Yet, in NIFLA, the Supreme Court majority ignored this context and addressed only the impact on the crisis pregnancy centers’ speech under the First Amendment. The Court held that a requirement that licensed facilities post a sign explaining that the state of California provided free healthcare, including abortion, was directed at the content of crisis pregnancy centers’ speech.
In so holding, Justice Clarence Thomas, writing for the majority, acknowledged something that many crisis pregnancy centers try to hide: they are “devoted to opposing” abortion. He wrote, “By requiring petitioners [crisis pregnancy centers] to inform women how they can obtain state-subsidized abortions — at the same time petitioners try to dissuade women from choosing that option — the licensed notice plainly “alters the content” of petitioners’ speech.24
According to Justice Thomas’s opinion, requiring crisis pregnancy centers to notify people about access to abortion altered the content of their protected speech; thus, the regulation was subject to strict scrutiny. The Court went on to hold that the law could not withstand even intermediate scrutiny, because its only stated purpose was to inform people about where they could get reproductive health services. Per the majority, even assuming that this was a compelling state interest, the regulation was not narrowly tailored to achieve that interest.
The Court also struck down the requirement aimed at unlicensed facilities, explaining that the state had not met its burden to prove that the regulation addressed a “potentially real, not hypothetical” problem, and was not unduly burdensome.25 This ruling was based on the limited justification for the ordinance, and because the centers were required to include the notice in every advertisement, no matter the context.
Justice Stephen Breyer, joined by justices Ginsburg, Kagan and Sotomayor, noted the irony of the majority’s decision in light of the Court’s history of allowing states to regulate the speech of abortion providers, in service of a so-called interest in protecting women’s health. He wrote:
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? … After all, the rule of law embodies evenhandedness, and “what is sauce for the goose is normally sauce for the gander.”26
Even the majority opinion, however, bodes well for the enforceability of the King County ordinance. As the majority states, the Court expressed no opinion “on the legality of a similar disclosure requirement that is better supported or less burdensome.”27 The King County rule is both.
It was enacted on the basis of testimony about the deceptive practices of some of the centers located in our region. This included descriptions of the information some centers provided that was medically inaccurate and undermined key public health messages about avoiding unplanned pregnancy and sexually transmitted infections. The ordinance also is significantly less burdensome; for example, centers do not have to include the language of the ordinance on every advertisement nor does it require a reference to abortion care.
It is unlikely, then, that the Court’s decision in NIFLA will detrimentally impact enforcement of the King County ordinance — a task of pivotal importance at a time of renewed attacks on access to reproductive healthcare.
Fajer Saeed Ebrahim is the “If When How” Reproductive Justice Fellow with Legal Voice.
1 King County Rule & Regulation 17-04 (Bd. of Health, 2017): https://www.kingcounty.gov/depts/health/board-of-health/regulations.aspx.
2 Editor’s Note: The Bar Bulletin first reported about these centers and the Board’s rule in its September 2017 edition. See “Combating Alternative Facts in Reproductive Health Care” — http://www.kcba.org/For-Lawyers/Bar-Bulletin/PostId/207/combating-alternative-facts.
3 Supra, note 1.
4 Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2368 (2018).
5 “What is a Pregnancy Center?” Care-Net, https://www.care-net.org/what-is-a-pregnancy-center (last visited July 24, 2018); see also, U.S. House of Representatives, Comm. on Gov’t Reform – Minority Staff, Special Investigations Div., “False and Misleading Health Information Provided by Federally Funded Pregnancy Resource Centers,” 1–2 (2006) available at http://www.chsourcebook.com/articles/waxman2.pdf.
8 Pam Belluck, “Pregnancy Centers Gain Influence in Anti-Abortion Arena,” N.Y. Times, Jan. 4, 2013: https://www.nytimes.com/2013/01/05/health/pregnancy-centers-gain-influence-in-anti-abortion-
10 Nat’l Inst. of Family & Life Advocates v. Harris, 839 F.3d 823, 841 (9th Cir. 2016).
11 Id. at 839–40.
12 NARAL Pro-Choice America, “Crisis Pregnancy Centers Lie: The Insidious Threat to Reproductive Freedom, 2 (2015): https://www.prochoiceamerica.org/wp-content/uploads/2017/04/cpc-report-2015.pdf.
13 The report, supra, note 12, found that CPCs often provide completely inaccurate information regarding everything from abortions to birth control to sexually transmitted infections.
14 Jonathan Blitzer, “The Trump Officials Making Abortion and Issue at the U.S.’s Refugee Office,” The New Yorker, October 26, 2017: https://www.newyorker.com/news/news-desk/the-trump-officials-making-abortion-an-issue-at-the-uss-refugee-office.
15 King County Rule & Regulation 17-04, supra, note 1.
17 138 S. Ct. at 2378.
18 Id. at 2369.
19 Id. at 2370.
20 NIFLA v. Harris, 839 F.3d at 829.
21 See, e.g., RCW § 7.70.050.
22 American College of Obstetricians and Gynecologists, “Informed Consent*,” ACOG Committee Opinion No. 439, 1–2 (2009). 114:401–8.
23 American College of Obstetricians and Gynecologists & American Academy of Pediatrics, “Guidelines for Perinatal Care,” 95–136 (7th ed. 2012).
24 NIFLA v. Becerra, 138 S. Ct. at 2371 (emphasis added).
25 Id. at 2377.
26 Id. at 2385 (Breyer, J., dissenting) (citing Heffernan v. City of Paterson, 578 U. S. ___ (2016) (slip op. at 6).
27 Id. at 2399.