Deceiving Pregnant Women Isn’t a Free Speech Right



Reproductive Rights

Last week, the Supreme Court heard oral argument in NIFLA v. Becerra. In this case, anti-abortion counseling centers are challenging a California law, the Reproductive FACT Act, which was passed to counteract the deceptive practices of these centers. The FACT Act is pretty straightforward: it helps provide important information to pregnant women and makes sure they receive accurate information about their full range of options related to pregnancy and family planning.

This case is not about free speech.

Who would want to overturn a law that protects public health and ensures access to reproductive health care? Anti-abortion counseling centers. These centers oppose the requirements of the FACT Act because they use deceptive practices to lure women into their centers and don’t want women to be aware of all of their reproductive health options.

NIFLA claims that the FACT Act violates anti-abortion counseling centers’ right to free speech. But this case really isn’t about free speech; it’s about the deceptive practices of anti-abortion counseling centers that make the FACT Act necessary in the first place.

How do anti-abortion abortion counseling centers deceive women?

In order to shed light on the deceptive practices of many of the anti-abortion counseling centers, and how harmful they can be, the National Women’s Law Center, along with 50 other reproductive rights, civil rights, and social justice organizations, filed a friend-of-the-court brief in this case. Our brief highlights the deceptive practices of anti-abortion counseling centers, and shares the stories of women who have experienced harm as a result.

Anti-abortion counseling centers are everywhere, and there are a lot of them – more than 2,700 in the U.S. And their misleading tactics are not by accident. Indeed, they are part of a well-funded national network of facilities with a long and well-documented history of using deceptive practices. As documented in our brief, these centers pretend to offer pregnancy-related health care and medical services, but their goal is to specifically target women seeking abortion and prevent them from accessing that care.  To that end, they intentionally conceal their religious affiliations and their anti-abortion mission, and are not honest about the services they offer. They use intentionally misleading websites and advertising methods, as well as confusing appearances and locations to attract women seeking abortion care.

Likewise, many anti-abortion counseling centers present themselves as providers of actual medical care, but instead provide only limited medical services, used to shame women and steer them away from abortion. Anti-abortion counseling centers also typically provide medically inaccurate information about reproductive health care, such as inaccurate depictions of the abortion procedure.

In the argument last week, it was clear that deception is at the center of everything anti-abortion counseling centers do. Indeed, Justice Sotomayor, in particular, highlighted the extent of their internet deception and spoke about all the ways that one website, as an example, used a picture of someone in a nurse’s uniform in front of an ultrasound machine on the homepage to provide the façade of a medical organization. We hope that the Court understands that the FACT Act is necessary because of anti-abortion counseling centers’ deceptive practices.

Women experience significant harm from visiting anti-abortion counseling centers.

When a woman visits an anti-abortion counseling center, she will likely experience confusion and shame, and may be given false and misleading information, which can lead to other serious harms, rather than the unbiased, factual information she needs to make a time-sensitive pregnancy-related decision.

Anti-abortion counseling centers’ deceptive tactics have also caused women to rely on false information to continue unwanted pregnancies to term. For example, one woman was told by an anti-abortion counseling center that an abortion would perforate her uterus, and she would never be able to have children; she relied on that medically-inaccurate information in deciding to continue her pregnancy. Another woman was repeatedly deceived by an anti-abortion counseling center, who kept telling her to return to their center every few weeks for her abortion. By the time she realized they were never going to provide the procedure, she was past the legal limit in her state.

And because a woman is deceived into thinking she has been provided adequate health care, she may delay seeking care elsewhere, resulting in threats to her health and future fertility. This might result in a failure to diagnose a medical condition, an increased risk of medical complications, additional health care costs if a delay results in a woman needing a more advanced abortion procedure, or a serious complication or loss of a wanted pregnancy. For example, one woman was told by an anti-abortion counseling center that she was not pregnant; in fact, she had a life-threatening ectopic pregnancy. She later had to have emergency surgery that resulted in the removal of her Fallopian tube and reduced fertility, all of which was the direct result of the inappropriate care she received at the anti-abortion counseling center.

As expected, these harms are magnified for women who are living in poverty or facing the pressures of low-wage work. These women face additional logistical barriers around scheduling, wages, travel, and childcare. More than one in eight women live in poverty according to the most recent census figures, and the figures are higher for women of color. For low-income women, taking time off of work and arranging for childcare in order to visit an anti-abortion counseling center is a significant burden; doing it again to obtain the care they actually seek is an even heavier burden.

We hope that the Supreme Court will consider the harms that women face when they visit anti-abortion counseling centers, and take this opportunity to make clear that laws – like the California FACT Act – that protect women from deception and harm will stand.