The First Amendment and Crisis Pregnancy Centers

Crisis pregnancy centers across the country offer birth counseling and sometimes services, but not abortion counseling or services. Unfortunately, pregnant women are drawn to these centers on the misleading assumption that abortion counseling is available. Various jurisdictions in the United States have fashioned laws designed to combat the deception perpetrated by these centers.

Baltimore, for example, (see here) requires that such centers put signs in their waiting rooms revealing that they do not offer abortion counseling or services. Incredibly, a federal district court has declared the law to violate free speech. The court thinks that the speech of the clinic is not commercial advertising and that it is more like political speech. To be sure, government cannot dictate the content of political speech. But it has long been the case that government has regulated counseling. Indeed, many counselors are properly subject to the prior restraint of licensing. In the area of health advice, there is no First Amendment right to deceive.  

San Francisco (see here) is taking a different approach from Baltimore. It forbids crisis pregnancy centers from engaging in false advertising, specifically from making the false and misleading claim that they provide abortion counseling when they do not. The First Amendment challenge to this approach is that it is underinclusive. The argument is that crisis pregnancy centers are being singled out for special treatment. Instead, it would be better to outlaw deceptive advertising by anyone. This argument has some appeal, but it is ultimately unavailing. Speaking for a Court majority in RAV v. St. Paul, Justice Scalia said that government may outlaw commercial speech in one context, but not another because the risk of deception in its view is greater there. That seems to be exactly what San Francisco has done.

The courts deciding these cases have focused on the free speech clause, but the plaintiffs have put forward a freedom of religion argument that I think is embarrassing. In some of the cases where clinics are forced by law to reveal the true content of their services, the plaintiffs complain that the compulsion violates their freedom of religion. I understand that the plaintiffs are opposed to providing abortion services on religious grounds, and I believe they have a First Amendment right not to do so. I find it hard to believe that they are really religiously opposed to publicly announcing their religious views about abortion in their waiting rooms, let alone being religiously opposed to revealing what their services are. Perhaps, however, their claim is that they have a religious right to deceive women (could they kidnap them, if necessary?), so that they not have abortions. I think this is dubious theology, but I know it is a preposterous legal claim. I doubt we will hear much about the religious argument in these cases, but the free speech arguments will be wrestled with in many of the appellate courts.

Comments

[Steve Shiffrin]

Interesting comment. I would think though that the question whether the
term pregnancy counseling is being used in a deceptive way is to look
at it through the eyes of a reasonable patient. I would expect that a
reasonable patient would expect to be informed of her available medical
options and the risks associated with them. I would also think that a
moral provider would have no compunctions about saying that it does not
give advise about abortions.

[Dan]

In its attack on pro-life pregnancy counseling centers, the abortion industry very much reminds me of what in the run-up to the Civil War abolitionists referred to as the “Slave Power.” The abolitionists (and actually Lincoln also even though he was not an abolitionist) claimed that the “Slave Power” was not content with slavery remaining solely in the South but, instead, was insistent that it be spread everywhere (even, according to Lincoln, into the North). The “Abortion Power” is similarly insistent on casting out the culture of life everywhere it is found and spreading in its place the “good news” of killing the unborn.

It is in this context that the recent spate of (unconstitutional) attacks on pregnancy counseling centers can be understood. Contrary to what Professor Shiffrin suggests it is not about “false advertising” at all. If it were, there would be no need for legislation as every state in the union already has statutes that bar false advertising. No, what is happening here is that the pro-abortion forces want to make abortion the norm for pregnancy counseling by having the law declare that the term “pregnancy counseling” is misleading if applied to counseling that does not countenance abortion. Just as the Slave Power could not rest until it drove out anti-slavery society wherever it was found, the Abortion Power cannot rest until abortion is fully legitimized and the pro-life worldview is fully de-legitimized. Hence, in the Abortion Power’s view, “pregnancy counseling” that does not countenance abortion cannot be allowed to present itself as legitimate “pregnancy counseling.” It can only present itself as a qualified form of pregnancy counseling.

Of course, in fact, there is nothing misleading at all when a pro-life pregnancy center says it provides pregnancy counseling, or even when it says it provides abortion counseling. It in fact does both things. Does Nieman Marcus engage in false advertising when it does not “disclose” that it does not sell junky clothes? Of course not. Similarly, pregnancy counseling centers do not engage in false advertising when they do not disclose in ads that they do not provide the junk advice that a woman should ever kill her unborn child.