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The fate of fake abortion clinics now lies in the hands of SCOTUS

Justices will decide if giving women false information is considered 'free speech.'


Claire Lampen


Posted on Mar 19, 2018   Updated on May 21, 2021, 9:24 pm CDT

On Tuesday, opening arguments will begin in NIFLA v. Becerra, the Supreme Court case that will decide whether or not unlicensed crisis pregnancy centers (CPCs) can continue to masquerade as medical facilities. That might seem like a non-question on its face: If a Florida teen faces a prison sentence for fraudulently posing as a doctor, shouldn’t the same rules apply to clinics? But it is, predictably, more complicated than meets the eye.

CPCs are the fake abortion clinics behind the highway-side advertising imploring scared, pregnant women to call a hotline for help about their options. They often set up shop right next door to legitimate abortion providers, deliberately adopting the same aesthetic in both their brick-and-mortar establishments and online advertising. The goal: To confuse abortion-seekers and option-weighers enough to wander through a CPC’s doors rather than a reproductive health clinic’s so they’ll be swayed away from termination.

Once inside, the misinformation campaign begins: Although visitors might be given a free pregnancy test or ultrasound, they might also be subjected to graphic movies or slideshows depicting mutilated fetuses or infants; lectured on the purported (and roundly debunked) dangers of abortion, including the elevated risk of breast cancer, infertility, depression, and suicidal thoughts; and told their pregnancies aren’t as far along as they really are. People who want to abort may leave a CPC thinking they have more time than they really do; people who want to continue their pregnancies are left in the dark as to the fetus’s gestational age.

“When you are seeking medical advice, especially when you’re scared and you’re vulnerable, you expect an organization that presents itself as a medical clinic to actually be one,” Amy Everitt, state director of NARAL Pro-Choice California, tells the Daily Dot.

NARAL’s California chapter sponsored the legislation at the heart of NIFLA v. Becerra, the Reproductive Freedom, Accountability, Comprehensive Care and Transparency (FACT) Act of 2015. The intention, Everitt says, was simply to ensure that women seeking medical attention received it, even if they found themselves in one of the state’s 200-plus imposter clinics.

As Slate reports, the FACT Act requires CPCs to post a sign informing visitors that “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women,” along with a number to call for details. Centers that are taking great pains to mimic legitimate medical centers while operating without medical licenses and without licensed practitioners must also state that upfront.

Which all seems perfectly reasonable, but these are not reasonable times.

As soon as California Gov. Jerry Brown signed the bill into law, Everitt says, anti-choice groups began filing lawsuits: The National Institute of Family and Life Advocates (NIFLA) asked for an injunction, alleging that the FACT Act impinges upon their right to free speech. (NIFLA offers legal counsel, education, and training to fake women’s health centers.) In October 2016, the U.S. 9th Circuit Court of Appeals upheld the law on the grounds that its language didn’t promote any services in particular but merely stated fact. NIFLA then brought its case before the Supreme Court, which took it up in November. Slate points out that the court’s makeup—now leaning conservative, with the addition of Trump appointee Neil Gorsuch, not to mention Justice Anthony Kennedy investing heavily in free speech—may well mean NIFLA gets its way.

A free speech defense seems an awkward fit here, though. One pertinent question a court might answer is whether or not a group of people without the requisite certification and schooling can be allowed to pose as medical professionals. A court might also consider whether or not doctors, or people playing them, have a right to deliberately mislead their patients. For Everitt, the case raises this question: “Is there a right to lie to women about their medical care?”

Because NIFLA v. Becerra climbed all the way to the nation’s highest court, its outcome holds implications for the entire country. NIFLA, along with Care Net and Heartbeat International, presides over more than 3,500 affiliate and partner fake women’s health clinics nationwide. That’s a startlingly high figure, especially when compared to the roughly 800 abortion clinics operating across the U.S. Statistically speaking, then, women faced with an unexpected, unwanted pregnancy who have never before conducted an abortion clinic search stand a higher chance of winding up in a clinic that will give them medically inaccurate information.

Everitt knows of one woman who got stuck in a fake clinic and, when she finally made it to real doctors, they discovered that not only had lab work ever been done, no one had a precise idea of the fetus’s gestational age. Further, the woman had unmanaged diabetes, which can cause serious developmental issues with vital fetal organs. “Fake women’s health centers don’t take care of the woman, their whole goal is to just continue every single pregnancy,” regardless of what happens to the eventual baby.

“We all know pregnancy is time-sensitive, and you want women to access care, excellent care, as soon as possible—no matter what,” Everitt says. “If [pregnant women] want to continue their pregnancy, they need to get really good prenatal care. If they want to terminate their pregnancy, they want to know that and do it as early as possible.”

Slate points out that, even if SCOTUS decides in NIFLA’s favor, the case might end up backfiring on anti-abortion activists: If a so-called crisis pregnancy center can legally argue that the mention of abortion and contraception contradict its right to free speech, then a clinic that provides the full range of pregnancy-related reproductive care could logically say the same of state laws that require them to feed patients medically inaccurate information in abortion counseling. That information often includes the same lies crisis pregnancy centers tell visitors: Abortion makes you a more likely candidate for cancer, sterility, and suicidal depression; and, what’s more, the fetus will feel pain. However, none of that comes backed by science. Should the court overturn the FACT Act, it could open the door for abortion providers to challenge state-level counseling laws.

But even with any silver lining, NIFLA v. Becerra presents as yet another example of just how far the idea of personal freedoms has skewed in this country. Do one person’s religious beliefs authorize them to undertake a purposeful deception designed to co-opt another’s choices, especially when those choices are constitutional rights? Does one person’s right to personal liberties outweigh another’s, and how do we hash out that hierarchy? Who actually wins? It seems SCOTUS will let us know soon enough.

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*First Published: Mar 19, 2018, 5:30 am CDT