{"id":10919,"date":"2018-03-16T10:13:44","date_gmt":"2018-03-16T14:13:44","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=10919"},"modified":"2018-03-16T11:07:03","modified_gmt":"2018-03-16T15:07:03","slug":"compelledspeechabortionproviders","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/compelledspeechabortionproviders\/","title":{"rendered":"It’s Abortion Providers, Not CPCs, Whose Free Speech Rights Are Being Violated"},"content":{"rendered":"

The Supreme Court is about to hear <\/span>an anti-choice challenge<\/span><\/a> to a California law regulating sham \u201ccrisis pregnancy centers,\u201d clinics that pose as women\u2019s health centers to prevent people from seeking abortions. But maybe anti-choice challengers should be careful what they wish for: if they win, the decision could prompt challenges to abortion laws around the country to laws that <\/span>restrict <\/span><\/i>abortion access and force abortion provider to mislead their patients.<\/span><\/p>\n

<\/p>\n

California\u2019s FACT Act establishes long-overdue regulations for the state\u2019s <\/span>200 or so crisis pregnancy centers<\/span><\/a> (CPCs). CPCs are <\/span>frequently unlicensed<\/span><\/a> establishments \u00a0that use misleading advertising to trick women considering abortion to come into their facilities \u2014\u00a0where they might be lied to about the <\/span>risks of abortion<\/span><\/a>, falsely told that emergency contraception doesn\u2019t work, or forced to watch anti-abortion films. These facilities deliberately target women seeking abortions to interfere with their choices about reproductive health and, before the FACT Act, they were largely unregulated.<\/span><\/p>\n

The FACT Act requires <\/span>crisis pregnancy centers to disclose<\/span><\/a> if they\u2019re not licensed by the state or if they don\u2019t have a licensed medical provider on staff. Both licensed and unlicensed clinics have to <\/span>put up a notice<\/span><\/a> informing patients that California \u201chas public programs that provide immediate free or low-cost access to comprehensive services,\u201d including contraception, prenatal care, and abortion. <\/span><\/p>\n

These requirements might not seem controversial, because they merely require medical providers to disclose the truth. But CPCs are suing over the law, with the help of the right-wing legal powerhouse <\/span>Alliance Defending Freedom<\/span><\/a>, arguing that the required notices amount to government-controlled speech and thus violate the First Amendment. <\/span>As Brie Frank explained<\/span><\/a> when the Supreme Court first took the case, the challengers\u2019 objection to the law is a weak one: California\u2019s \u201claw does not require clinics to communicate any specific message,\u201d just to provide accurate facts about the services they provide. <\/span>The Ninth Circuit agrees<\/span><\/a> \u2014 a panel of the Court of Appeals unanimously upheld the law, ruling that it was permissibly regulating medical providers, not requiring anyone to promote abortion. You can <\/span>read Brie\u2019s analysis<\/span> of the case and the flaws with the CPCs arguments\u00a0<\/span>here<\/span><\/a>.<\/span><\/p>\n

But anti-choice advocates have another problem. Eighteen states have <\/span>passed \u201cmandatory counseling\u201d laws<\/span><\/a> that force abortion providers to give people seeking an abortion misleading or outright false information aimed at dissuading them from getting an abortion. If the Supreme Court <\/span>does <\/span><\/i>strike down the FACT Act on the grounds that telling the truth is compelled speech that violates CPCs\u2019 First Amendment rights, then surely laws requiring abortion providers to share false, anti-choice propaganda violate <\/span>their <\/span><\/i>First Amendment rights too.<\/span><\/p>\n

According to <\/span>the Guttmacher Institute<\/span><\/a>, a nonprofit tracking state abortion laws, five states require doctors to tell patients that there is a link between abortion and breast cancer. This link is nonexistent and has been repeatedly debunked by <\/span>the American Cancer Society<\/span><\/a>, <\/span>peer-reviewed research<\/span><\/a>, and the <\/span>American College of Obstetricians and Gynecologists<\/span><\/a>. Another thirteen states force doctors to tell women that fetuses feel pain, <\/span>another baseless, anti-choice myth<\/span><\/a>. Eight states also require doctors to say abortion leads to long-term mental health consequences (including increased risk of suicide) in women \u2014 even though research has found <\/span>no causal link<\/span><\/a> between the two.<\/span><\/p>\n

If common-sense consumer protection laws requiring CPCs tell people the truth amount to unconstitutional \u201ccompelled speech,\u201d then surely mandatory counseling laws forcing doctors to push ideologically-charged misinformation on their patients require \u201ccompelled speech,\u201d too. <\/span><\/p>\n

Some lower courts have already recognized that mandatory counseling laws create serious free speech problems. The <\/span>Fourth Circuit overturned<\/span><\/a> a controversial North Carolina law requiring doctors to perform an ultrasound and describe the fetus to women seeking abortions, even if tried to \u201crefus[e] to hear.\u201d In a unanimous opinion, the court ruled that the requirement was \u201cquintessential compelled speech,\u201d writing that it \u201cforces physicians to say things they otherwise would not say. Moreover, the statement compelled here is ideological; it conveys a particular opinion.\u201d <\/span><\/p>\n

Other courts have been less willing to accept abortion providers\u2019 challenges, creating inconsistency among circuit courts. In 2008, abortion providers <\/span>challenged a South Dakota law <\/span><\/a>that required providers to falsely tell patients that abortion was associated with depression and suicide, and that abortion would \u201cterminate the life of a whole, separate, unique, living human being.\u201d While the Eighth Circuit found that the medical literature <\/span>did not support<\/span><\/a> a causal link between abortion and suicide, it upheld the law, reasoning that it requires physicians to say abortion and mental health issues are \u201cassociated\u201d rather than \u201ccaused by.\u201d But this is a nonsense distinction \u2014\u00a0to a lay person hearing this from their doctor, that language is one and the same.<\/span><\/p>\n

But if the Supreme Court says that the FACT Act\u2019s minimal disclosure requirements are compelled speech, reproductive rights lawyers could get another run at the South Dakota\u2019s law and similar ones across the country. Even if reproductive rights advocates lose this battle, it may help us win the war.<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

The Supreme Court is about to hear an anti-choice challenge to a California law regulating sham \u201ccrisis pregnancy centers,\u201d clinics 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