Will the Supreme Court Grant Fake Clinics the Right to Lie?

The Supreme Court on Monday agreed to consider the constitutionality of a California law requiring, among other things, that so-called crisis pregnancy centers disclose to patients when they are unlicensed.

Activists gather in D.C. to support abortion rights and women's rights during the Women's March on January 20. Lauryn Gutierrez / Rewire

The U.S. Supreme Court on Monday agreed to hear a challenge to a California law requiring so-called crisis pregnancy centers (CPCs) disclose to patients that their facilities do not offer comprehensive reproductive care, including contraception and abortion.

The conservative litigation mill Alliance Defending Freedom (ADF) brought the lawsuit on behalf of these fake clinics, arguing the law violates their First Amendment free speech rights. Passed in 2015, the law requires the state’s licensed pregnancy centers to display a brief statement with a number to call for access to free and low-cost birth control and abortion care.

Unlicensed centers must disclose that they are not medical facilities.

The challengers argue the disclosure violates their First Amendment free speech and religious exercise rights because it requires the religiously affiliated institutes send a message that conflicts with their mission of promoting childbirth—despite misleading clients in the process.

A crisis pregnancy center in Massachusetts demonstrates how far anti-choice groups may go to dupe patients into believing a fake clinic offers the services they are seeking, as Rewire Investigate Reporter Amy Littlefield has found in a recent investigation.

Attorneys on behalf of the State of California argue the law is within the state’s power to regulate the medical profession. They note state lawmakers passed the law in response to legislative hearings and findings that showed more than 200 CPCs in the state misled potential clients into believing the clinics provided comprehensive reproductive care, including abortion.

Attorneys for ADF sued before the law could take effect in January 2016. Both the lower court and the U.S. Court of Appeals for the Ninth Circuit ruled in favor of the disclosures, holding they fell within California’s broad power to regulate medical providers to protect patients. The Ninth Circuit also said that the disclosures did not violate the First Amendment because they stated facts and did not “encourage” people to seek an abortion as attorneys for ADF claim.

The CPC challenge is not the first time the federal courts have stepped into the fight over free speech rights and regulating abortion clinics or procedures. In 2015, the Supreme Court left intact a decision from the U.S. Court of Appeals for the Fourth Circuit blocking North Carolina’s mandatory ultrasound law. That law required a physician (or qualified technician) to perform an ultrasound on a patient needing an abortion at least four hours, and no more than 72 hours, before the patient has an abortion.

Under the law, the physician or technician must display and describe the ultrasound image whether or not the patient objects, and even if the patient seeks to avoid the state-mandated speech and image by covering their ears and eyes. The law mandated these “display and describe” ultrasounds take place with no exceptions for pregnancies resulting from rape or incest, those that posed serious health risks to the patients, or instances of severe fetal anomalies.

The Fourth Circuit said North Carolina’s ultrasound law was unconstitutional because it violated the First Amendment free speech rights of doctors, by mandating an anti-abortion message promoted by the state.

The Roberts Court in November 2013 also refused to review a similar law from Oklahoma. That refusal left in place a ruling from the Oklahoma Supreme Court permanently blocking the measure as unconstitutional.

There is a difference between truth-in-advertising laws that have been upheld and the mandatory ultrasound laws that have not. As the Ninth Circuit noted in upholding the California law, disclosing that a CPC does not offer abortion, that the State of California provides comprehensive reproductive health care counseling should the patient want it, and that unlicensed clinics are just that—unlicensed—is not coercive. The CPCs could meet those disclosure requirements and still pressure patients into carrying pregnancies to term. Laws like California’s just prevent such centers from doing so in a fraudulent and misleading fashionby hiding facts from patients.

Courts have distinguished between compelled speech and speech that is misleading and therefore not constitutionally protected when considering whether to block mandatory ultrasound laws under the First Amendment. As the Fourth Circuit observed when permanently blocking North Carolina’s ultrasound mandate, that law compelled “a health care provider to act as the state’s courier” and to “disseminate the state’s message discouraging abortion, in the provider’s own voice, in the middle of a medical procedure, and under circumstances where it would seem the message is the provider’s and not the state’s.”

Unlike truth-in-advertising laws regulating CPCs, these mandatory ultrasound laws conveyed a specific anti-abortion message and used doctors as a mouthpiece. Requiring an unlicensed fake clinic to disclose that it is unlicensed is simply stating a fact. It is not compelling the CPC to deliver a pro-abortion message from the state.

These cases share another thing in common, beyond generally falling in the category of free-speech challenges to abortion rights regulations. In both instances anti-choice advocates have tried to advance their agenda through deceiving patients. But the cases the Court agreed to hear Monday go one step further than just deceiving patients. The question the Roberts Court will now consider is whether CPCs have a religious right to deceive patients.

That framing—one of a religious objection to abortion rights— could be a tempting one for the Court. It falls in line with the Hobby Lobby v. Burwell reasoning that businesses and their owners can raise religious objections to reproductive health-care services. In the case of Hobby Lobby, it was its employees’ access to contraception through the Affordable Care Act. That framing privileged the rights of corporations over the rights of working people. These cases give the Court the opportunity to balance the rights of patients not to be lied to against the rights of religiously affiliated CPCs to promote an anti-abortion agenda by failing to disclose information to help a patient make an informed decision about their care.

Will the Roberts Court center patients’ rights in these cases? Or, like it did in the Hobby Lobby case, will the Court barely acknowledge those rights in favor of creating more legal protections for businesses under the guise of promoting religious freedom? My guess is the latter. We’ll know for sure this summer when the Court issues its decision. A date for arguments has not yet been set.