October 19, 2015 — In "the latest contention in the reproductive culture wars," two crisis pregnancy centers are challenging a California law (AB 775) that requires such centers "merely ... to inform women of the availability of free or low-cost abortions" as "an unconstitutional infringement of religious liberty," Erwin Chemerinsky, dean of the University of California-Irvine School of Law, writes in a Los Angeles Times opinion piece.
The recently enacted California Reproductive FACT Act, set to take effect Jan. 1, 2016, requires licensed health care facilities to "post or distribute a notice that states, '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'" and provide a telephone number women can call to find out if they qualify, Chemerinsky explains. Meanwhile, he notes that unlicensed facilities under the law "'must disseminate a notice to all clients acknowledging that it is not licensed as a medical facility by the state of California.'"
According to Chemerinsky, two "religious nonprofits -- so-called crisis pregnancy centers ... are seeking an injunction against" the law, "claiming the law violates their 1st Amendment right to free exercise of religion and freedom of speech." He writes, "Their argument has no merit."
Chemerinsky explains, "No doctor, other healthcare professional or facility is required to provide contraceptives or abortions, or even provide referrals for these services." Rather, "[t]he new law simply ensures that clinics expose their patients to additional, accurate information," he writes.
He notes that the state Legislature approved the law in part because many women in the state who have an unintended pregnancy "are not aware of the services available to them -- and if they happen into a [CPC], they'll exit none the wiser." Chemerinsky explains that CPCs "have been known to spread false medical information and use scare tactics to dissuade their clients from seeking abortions," such as making untrue statements about how abortion can increase the risk of breast cancer and that "abortions are high-risk procedures that could well result in infection and death."
He writes that while the CPCs "say the law is unconstitutional, the Supreme Court has been clear that the free exercise clause of the 1st Amendment can be used to contest a law only if it targets religious groups for discriminatory treatment." According to Chemerinsky, "the Reproductive FACT Act does not violate the free exercise clause because it applies to all healthcare facilities in California, and lawmakers' chief goal was ensuring that women are adequately informed of the benefits available to them."
Further, Chemerinsky contends that the CPCs should not "succeed in their claim that the need to post a notice amounts to unlawfully compelled speech" as "healthcare professionals are routinely required to inform patients of the range of treatment options available to them and of possible side effects to medical procedures." He adds, "More generally, businesses that sell products and services are frequently required to provide information to consumers," noting, "Courts consistently have ... rejected claims" that such measures are in violation of the First Amendment.
Chemerinsky questions whether the CPCs were "emboldened by the Supreme Court's 2014 ruling" against federal contraceptive coverage rules. He notes that while the "Reproductive FACT Act is quite different" from the contraceptive coverage rules, the opposition to both are similar in that "[t]hey are both part of an aggressive ongoing effort to deny women access to reproductive healthcare" (Chemerinsky, Los Angeles Times, 10/16).
Editorial: CPCs 'Succeeding' in Restricting Abortion Access, 'Urgent' Need To Address Issue
"For almost as long as abortion has been legal ... [CPCs] have been part of the effort to make that legal procedure difficult, if not impossible, to access," a Sacramento Bee editorial states.
The editorial explains that CPCs "typically advertise free testing and counseling to women ... and then try to persuade them" to continue the pregnancy. While "[s]ome centers make it clear" that they oppose abortion rights, "[o]thers ... are far less transparent, branding themselves to look like abortion providers and then lying about the risks of abortion or tricking women into remaining pregnant past the point where termination is an option."
The editorial points to a recent NARAL Pro-Choice California investigation of 45 CPCs in California that found "that 72 percent falsely told women that abortion was linked to depression, 46 percent repeated the myth that abortion is linked to breast cancer and 35 percent claimed abortion was linked to infertility, which is untrue." In one case, a CPC counselor misidentified an [intrauterine device] as a fetus.
Nonetheless, although these "deceptive practices can be emotionally scarring and have serious health implications ... cracking down" on CPCs "has become increasingly difficult." The editorial explains that "while laws prevent medical professionals from misleading patients," efforts to regulate "the unlicensed counselors" at CPCs "can run afoul of free speech rights." The editorial cites the urgency of the situation, noting that CPCs "in California far outnumber community clinics where a woman can get an abortion; nationally, the centers outnumber abortion providers 3 to 1."
The editorial notes that the "conservative legal groups filed for injunctions" against the law "in U.S. District Courts in Sacramento and San Diego." However, according to the editorial, the law "is conservatively written to avoid legal language that caused similar efforts elsewhere to be struck down." Further, the editorial states that while "signage laws in New York, Baltimore and Austin have been overturned in court or substantially eroded ... in February a federal judge upheld a false-advertising ordinance [212-11] in San Francisco requiring the centers to post notices making it clear that they don't offer abortions."
The editorial notes that, according to legal scholars, "the law is a moving target and the U.S. Supreme Court will probably eventually decide." Meanwhile, the editorial states, "this trend toward polarizing medical information has to be called out and ended" (Sacramento Bee, 10/18).