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Antiabortion 'clinics' and the Supreme Court case: What you need to know about NIFLA v. Becerra

Jennifer Gerson Uffalussy
Contributing Writer
Both sides of the national abortion argument, plus free-speech rights, are at the center of Supreme Court case NIFLA v. Becerra, which began oral arguments on Tuesday. (Photo: Susan Walsh/AP/REX/Shutterstock)

Earlier this year, college sophomore Kelsey D. found herself in a situation that no woman ever hopes to be in: Waking up the morning after a party where she’d been drinking, with just the fuzziest memory of having had sex with a young man who didn’t wear a condom.

“It was a really traumatizing situation,” Kelsey, a Pennsylvania State University student, tells Yahoo Lifestyle. “I woke up the next morning and didn’t really remember a lot about what had happened.”

One thing she did know, however, was that she needed to have tests for pregnancy and sexually transmitted infections (STI) administered ASAP. And to her, the place to go for those tests was obvious: the Pregnancy Resource Clinic, which had stickers on the back of every stall in the women’s bathrooms of the campus center and library, and which had a regular presence in the student center, handing out candy and stickers to advertise itself as a safe, convenient place to go for low-cost testing.

“Every girl at Penn State is aware of the Pregnancy Resource Center as the place to go,” Kelsey emphasizes. So she called and made her appointment.

Once there, she says she was greeted by friendly women who offered her coffee and water before her name was called for her appointment. But that’s when things took a turn.

“Once I was in the exam room, I was in there with this woman who was shockingly not interested in my story at all. She didn’t ask about the details about the sexual experience that led me there, whether it was a bad one, whether it was a good one, what had happened that led me to need these tests today,” she recalls. “On the emotional side of this alone, I felt like she never really cared, and she never bothered to ask about why I was in there that day.”

The woman then told Kelsey that her need for that day’s appointment was her own fault, and that abstinence should be the answer from then on.

After Kelsey was given both pregnancy and STI tests, she asked the woman about her options should her pregnancy test come back as positive; she was told to “wait and see” about her results first.

“I knew immediately that something weird was going on here,” the student recalls. “And then she prayed over me that I would remain abstinent.” And in that moment, Kelsey says she knew “this place isn’t what I thought it was.”

What it in fact turned out to be was one of many faith-based women’s health centers — also called crisis pregnancy centers by the antiabortion movement) — which are basically fronts for clinics that aim to turn women away from the legal option of abortion. And while Kelsey’s STI and pregnancy tests both came back negative, she says she’s been nonetheless changed forever by her first-person experience with one of these antiabortion clinics.

Such places are at the heart of a Supreme Court case that began oral arguments on March 20: National Institute of Family and Life Advocates (NIFLA) v. Becerra, which centers around the Reproductive FACT Act.

That California law, passed in 2015, ensures that anyone providing information to pregnant women does so according to the following standards: by providing options in an honest, informationally accurate way, and by making sure anyone who claims they provide medical advice and/or medical care is held to a high standard of honesty and professionalism. The law is straightforward, simply requiring facilities to disclose whether there is a licensed medical professional providing or supervising the facility, and post a small notice about the availability of comprehensive state family planning and prenatal care programs. If a facility does not have a licensed medical professional on staff, that fact needs to be included in its advertising.

As for the names in the case, Xavier Becerra is the California attorney general, who is defending the law, and NIFLA is a public interest law firm that counsels so-called crisis pregnancy centers around the country.

Those on NIFLA’s side believe the California law stifles free-speech rights.

“Americans shouldn’t be forced by the government to promote messages that violate their conscience or with which they fundamentally disagree,” wrote Thomas Glessner in the National Review. “In this case, the state of California is using its power to force pro-life pregnancy centers to provide free advertising for abortion. It is using the walls of pro-life pregnancy centers as billboards to advertise abortions to the centers’ clients.”

He continued, “What if the government passed a law that forced the American Lung Association to promote cigarettes? What if the government mandated that Alcoholics Anonymous post a sign in their facilities advising their clients on the location of the closest liquor store? That wouldn’t be right, and neither is California’s law.”

Supporters of the Reproductive FACT Act, however, say that the law is a straightforward consumer protection measure that in no way infringes on anyone’s speech.

“The right to free speech doesn’t include the right to deceive,” Heather Shumaker, senior counsel at the National Women’s Law Center (NWLC), tells Yahoo Lifestyle. “We believe that anyone is free to speak antiabortion values, but that’s in fact what this case is talking about — these fake women’s health clinics are not making clear that they are antiabortion when they are targeting women and bringing them into their facilities.”

Shumaker explains that at its heart, NIFLA v. Becerra is about whether the First Amendment’s free speech clause allows these centers to actively deceive women.

“When you are pregnant, in particular, patients need access to timely and accurate health care information,” she says. “These centers deter women from having abortions and go about doing that by falsely advertising and misleading women to think that they provide different services than what they really do provide.”

The centers target, through false advertisement, women who decide to have an abortion, and then market themselves in a way that makes it seem like they will provide abortion care and that they are providers of full, comprehensive health centers. They look like medical centers, use similar names as legitimate reproductive health care, pick locations that are in close proximity to other health centers, and don’t disclose their religious affiliations in advertising what they are and what they do.

“Once a woman is there, they think that they are at a real medical facility and receive a lot of false and damaging information — they are often given false information about abortion, saying it causes breast cancer, infertility, post-abortion syndrome. All of this is untrue,” Shumaker continues. “Or they will be provided an ultrasound and are told they are not pregnant when they in fact have an ectopic pregnancy. There are real harms when women are being tricked about getting the service they are trying to get, abortion, especially when they are delays to that. And the right to free speech does not include allowing deceptive advertising practices and misleading women.”

Amy Everitt, the state director of NARAL Pro-Choice California, was instrumental in helping to get the Reproductive FACT Act passed. Three separate investigations by the group on these so-called women’s health centers in the state had found that these antiabortion clinics were consistently deceptive in their practices, dispersing medical misinformation, and contributed to delays in access to actual abortion care for women.

But most significantly, Everitt tells Yahoo Lifestyle, the group found that women going into these clinics were “not only getting lies, but not getting information about what the state of California does for prenatal care.”

Lealah Pollock, MD, a family physician in San Francisco and a fellow of Physicians for Reproductive Health, tells Yahoo Lifestyle that these kinds of deceptive practices can have real impacts on patients — something she’s witnessed firsthand.

“I saw a patient a couple of months ago who came in for an abortion,” Pollock says. “She had two small kids at home, and when she found out she was pregnant again, she just knew it was not the right time for her to have another child.”

This patient saw an ad for a clinic, which she called, and scheduled an appointment for an abortion. When she showed up for the procedure a week later, she was told she was too early in her pregnancy to be eligible for an abortion — something both medically and legally untrue — and that she needed to wait for another week and think about her decision before she could reschedule the procedure, Pollock says. A week later, she was told once again that she needed to wait and think.

“That’s when she finally realized that she was not being provided with the services she thought she was going to be provided with,” Pollock says.

Fortunately, the woman was still early enough in her pregnancy to make an appointment at a legitimate medical clinic and have a safe, legal abortion. Nonetheless, Pollock says, her patient was “appalled that this clinic, even though she called asking for an abortion, never once said to her, ‘We don’t provide the service you are calling to get.’ They misled her about the timeline about when she could get an abortion, and she really felt like they were just trying to drag things out and lead her along until it was too late for her to get an abortion.”

Hearing her patient’s story made Pollock, who herself provides abortion care, feel “angry,” she says. “It makes me angry that there are these centers out there that are lying to women and taking advantage. When a woman has an undesired pregnancy, it’s often a very emotional and vulnerable time for her. This is a time when she most needs accurate medical information, unbiased counseling, and support form a medical provider. She doesn’t need to go to a place where she is being lied to, manipulated, and coerced.”

Katrina Kimport, PhD, is the first person to look specifically at the impact that these centers have on women’s decision to seek abortion care. What the University of California, San Francisco, medical sociologist and researcher with Advancing New Standards in Reproductive Health (ANSIRH) found was that, though women did report that they had been “shamed, felt judged, felt serious stigma, and had really negative emotional experiences” at these clinics, the centers “did not have an impact on their personal decision in feeling that abortion was the right decision for them. Though having been to a crisis pregnancy center was an emotionally difficult experience, it didn’t impact their decision-making.”

She continues, “We know from the research that women are certain — they have very high decision-making certainty — about the pregnancy outcome that they believe is the right decision for them. So there is value for them in helping identify the place that gives them the services they want.”

Kimport’s research also showed that of women who have visited these pregnancy clinics, it became fairly obvious at their appointment, as it did with Kelsey, that these places were not in fact legitimate medical establishments.

And given the undisputed safety of abortion (something reinforced this week by the largest such study ever), and women’s certainty when it comes to their decision to seek it out, reproductive rights advocates say that NIFLA v. Becerra could have dangerous implications for women seeking this care currently constitutionally guaranteed under Roe v. Wade.

The Supreme Court’s ultimate ruling on the case “will show us if the California FACT Act that assures that women get timely, accurate information about their pregnancy options and protects them from places that decide to deceive and harm is the kind of law that can be upheld in other places or not, if we will see more challenges to these kind of laws in more places or not,” Shumaker says.

But that’s not the only immediate consequence of the Supreme Court’s decision after Tuesday’s oral arguments.

“The key difference in this case is that the practices of fake women’s health centers are deceptive — I hope that the Supreme Court’s decision will make clear that the decision is contingent on deceptive practices,” notes Shumaker. And NIFLA v. Becerra could wind up being not only about whether these clinics are allowed to give false information to women, but whether real doctors might become required to do so themselves.

Which is why Everitt hopes that with this case, both the American electorate and the judges understand “how dangerous and deceptive these fake clinics are and are motivated to help us end these lies,” she says. “Everyone has a First Amendment right to their beliefs, but when you put yourself out there as a medical professional, you have to be held, at a minimum, to the same licensure and regulations as an auto shop or nail salon. Putting out a sign about where to go for support shouldn’t be a controversial issue. If this wasn’t about abortion, we wouldn’t even be having this conversation.”

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