POLITICS DECEMBER 8, 2011
In October, San Francisco’s Board of Supervisors passed an ordinance that banned misleading advertisements for the city’s crisis pregnancy centers. The ordinance allows courts to fine crisis pregnancy centers, which counsel pregnant women against abortion, up to $500 every time they falsely imply in advertisements that they offer abortion services. First Resort, Inc., one of the centers singled out by the law, responded with a suit accusing the city of a First Amendment violation in less than a month. The case is now going to the United States District Court for Northern California. First Amendment challenges have already felled, blocked, or weakened similar legislation in federal courts all over the country—in Baltimore, New York City, and Montgomery County, Maryland. An Austin law is currently under review. Is this law likely to suffer the fate of its precursors? Despite similarities, advocates and experts insist that it stands a better chance of being upheld—and, possibly, changing the playing field when it comes reining in the deceptive advertising of crisis pregnancy centers.
Crisis pregnancy centers seek to dissuade women and girls from seeking abortions by walking them through alternative options, such as adoption. Not all of them are up front about their motives, and their indirection can delay a woman’s decision-making until emergency contraceptives are no longer effective or until an abortion is illegal. There are obviously a range of approaches that these centers use; in the worst cases, a 2006 Congressional investigation found that centers led women to believe the falsehoods that abortion is linked to breast cancer, high rate of future infertility, and psychological effects akin to PTSD.
The activities of First Resort appeared to San Francisco city officials to occupy the more duplicitous end of this spectrum. San Francisco’s city attorney says the non-profit center has paid to be the first Google result when a person searches for “abortion San Francisco.” Although First Resort’s website includes “pre and post abortion counseling” among its services, lists abortion as an option for unwanted pregnancy, and features a testimonial from a client who chose to have an abortion, First Resort CEO Shari Plunkett says the primary reason for its existence is to prevent abortions. And, crucially, nowhere on its website does First Resort disclose that it does not offer abortions or referrals to abortion providers. Omissions like these are at the core of the claim that the center misleads through false advertising.
The San Francisco ordinance addresses these matters using a different tactic than past legislation. Other laws—such as the New York version—have attempted to compel speech, requiring crisis centers to post signs informing women that they do not provide abortion services or that the government recommends fully-licensed medical facilities. Steven Shiffrin, a law professor at Cornell University and a First Amendment expert, explains that while laws compelling speech have proven vulnerable, there is ample judicial precedent behind laws that target advertising. “There’s no constitutional right to deceive,” he says.
In part because of this distinction, there is hope among pro-choice activists that this will be the law that sticks. Amy Everitt, the state director for NARAL Pro-Choice California, said she is very optimistic this could be a working model for cities elsewhere. “We’re not trying to interfere in any way with what they tell their clients once those clients are inside their doors. … This is not about a First Amendment right to free speech. This is about false advertising.”
For the law to survive, however, the city must show the court that they have the right to regulate crisis pregnancy centers’ speech—to show, essentially, that the Supreme Court has justified this regulation in prior cases related to speech and advertising. The city is likely to argue that it has the right to enact this law because the government can regulate individual speakers in cases where fraud would carry a great risk (as Justice Antonin Scalia outlined in RAV v. City of St. Paul), and because the government has the right to regulate speech relating to commercial enterprise (as established in Virginia State Pharmacy Board v. Virginia Citizens Consumer Council.)
According to Paul Suis, a First Resort board member, the center’s response will be that the city does not have the right to regulate individual speakers (i.e., crisis pregnancy centers) in this case; doing so would be tantamount to regulating political speech—which is protected. They see their centers as representing one side of a political debate, not merely as health institutions. Regulating them without also regulating the city’s abortion clinics, the argument goes, would be like regulating the campaign advertisements of Republicans but not Democrats.
First Resort will also contest the second of the city’s arguments by saying that they are not a commercial enterprise. First Resort, like many crisis pregnancy centers around the country, is a non-profit, which, the organization claims, exempts it from regulations of commercial advertising. Suis feels confident that First Resort’s non-profit status will help invalidate the law. The organization’s services, Suis says, are a “freebie” for society, “not a commercial commodity.”
It’s too early to tell whose arguments will prevail. And when arguments begin, the ideological back-and-forth will feel familiar. Do crisis pregnancy centers sufficiently affect public health that the government can regulate them, or are their actions an exercise of free speech? Essentially, is abortion a public health issue or a political one? But the ordinance and its legal justification offer a fresh way to frame these old arguments, and maybe, a model for legislators across the country looking for a way to protect women’s choice.
Molly Redden is a reporter-researcher at The New Republic.