California on Friday became the only state to target anti-abortion pregnancy centers with a law cracking down on deceptive practices some have used to prevent or dissuade women from having an abortion.
The new law, which forces some crisis pregnancy centers to offer information about public assistance for reproductive services and others to notify patients that there are no medical professionals on staff, passed the California state assembly with a large majority in late May. Gov. Jerry Brown, a Democrat, signed the bill on Friday night.
It is the first time reproductive rights groups have succeeded in pushing regulations on crisis pregnancy centers across an entire state; only a handful of cities or counties have passed similar laws. Shortly before the act became law, Amy Everitt, the director of NARAL Pro-Choice California, a reproductive rights group that helped draft the bill, said in an interview, "There is more to come."
But the new law may represent the outer limit of what legislatures can do to regulate crisis pregnancy centers. The measure, called AB 775, almost certainly faces the same fraught legal battles that stalled similar regulations in cities including Baltimore, New York, and Austin. Those battles forced NARAL and its allies to be conservative in crafting the new regulations. For instance, the law cannot force unlicensed centers to inform women that the state health department encourages women to visit licensed medical providers for prenatal care. A new court fight could erode their options even further.
Reproductive rights advocates and public health officials have long sought to raise alarms about crisis pregnancy centers. Run by anti-abortion groups, crisis pregnancy centers sometimes provide pregnant women with misleading medical information in order to discourage them from ending their pregnancies. Others are ambiguous about whether they perform abortions or not in order to get women through the door. According to an investigation by NARAL, almost half of California's crisis pregnancy centers promulgate the popular anti-abortion myth that terminating a pregnancy is linked to a patient’s chances of developing breast cancer. At the same time, NARAL claims, a majority of the state's crisis pregnancy centers present themselves as neutral on the issue of abortion.
Abortion foes deny that crisis pregnancy centers engage in such subterfuge. "A woman knows her options," says Sandra Palacios, a government relations executive with the California Catholic Conference, which opposed the law. "Women are smart. They know where they’re walking into—a safe place where they can get all the information about abortion alternatives."
But as AB 775 was debated in the general assembly, many California medical professionals complained that crisis pregnancy centers offered their patients health care of dubious quality. In a letter to the legislature, Therese McCluskey, the perinatal services coordinator for the Alameda County Public Health Department, said many patients who transfer from crisis pregnancy centers to the clinics she oversees come without prenatal records, lab reports, or the pregnancy verification form that entitles them to pregnancy-related health care. Patients typically transfer at the point when they are too far along in their pregnancy to obtain an abortion.
At a Senate hearing on the bill, one OB-GYN testified that crisis pregnancy centers can pose a risk even for women who wanted to be pregnant and planned to carry their pregnancies full term. Sally Greenwald, of the University of California—San Francisco, is an OB-GYN and recalled taking over the care of a pregnant diabetic woman from a pro-life center. The crisis pregnancy center had failed to treat the woman's alarming blood sugar levels. "The fetus was exposed to lifelong risks, such as cardiac malformations, brain anomalies, and spine deformations," says Greenwald. "We could have lowered the sugar in her blood and we could have had better outcomes both for mom and for baby."
There are nearly 170 crisis pregnancy centers in California. At least 40 percent of them are licensed by the state as medical providers. Unlicensed clinics are prohibited from providing medical advice. For instance, an unlicensed clinic could conduct an ultrasound for a woman, but it could not use the results to determine gestational age.
California’s new law places two types of restrictions on crisis pregnancy centers. It requires pregnancy-related service providers that are not medically licensed to disclose that fact to patients. For reproductive health clinics, including crisis pregnancy centers, that are licensed, the law requires that they provide patients with information about California’s financial assistance for family planning services, prenatal care, and abortion.
"This bill is sort of a lessons-learned bill from all the previous efforts," says Everitt, of NARAL. As the group and its allies crafted the bill, she adds, they were "acutely aware" of how other bills to regulate crisis pregnancy centers—including some NARAL helped author—had failed in the past.
At the center of those past failures is a feud over whether abortion is a political or a health issue. Abortion foes claim that regulating crisis pregnancy centers is a violation of their right to express opposition to abortion. Reproductive rights advocates counter that the regulations are permissible because states have some latitude to regulate speech that is deceptive or coming from professionals licensed by the state. What is at stake is more than semantics: Supreme Court decisions have set a high bar for regulating political speech, but a low bar when it comes to individuals who are speaking as licensed professionals.
Regulating crisis pregnancy centers, even in blue states, has proved an elusive goal. Federal courts have struck down several laws forcing crisis pregnancy centers to make certain disclosures, such as informing women that they do not offer abortions, birth control, or referrals for those services.
Local officials in Baltimore, New York City, Austin, Maryland's Montgomery County, and San Francisco have all attempted to regulate crisis pregnancy centers with mixed degrees of success. Federal courts are split over several laws forcing crisis pregnancy centers to disclose up front that they are not medically licensed or do not refer for abortion, and to specify which medical services they do or do not provide.
Attempting to avoid a similar outcome in California, Everitt says, NARAL enlisted the office of Democratic Attorney General Kamala Harris. Harris' office helped draft the bill from its inception with an eye toward eliminating openings for a First Amendment challenge—although a spokeswoman for Harris cautioned that the state's involvement was no guarantee of success. Harris vocally backed the new law.
Their track record in federal court forced the drafters to leave what they saw as large holes in the new law. "We wish we could get crisis pregnancy centers to stop spreading scientifically unsound messages," Everitt says, but such a law would likely be struck down in court.
Palacios said the California Catholic Conference intends to sue to block the law. A representative for a coalition of crisis pregnancy centers opposed to the bill did not respond to requests for an interview.
Everitt is confident the law would survive a court challenge. Her group was instrumental in drafting the San Francisco measure, passed in 2011, which has so far survived a legal onslaught. The law allowed the city to fine crisis pregnancy centers each time they falsely implied that they offered abortion services or referrals.
Just as she did in 2011, Everitt hopes the new law will become a national model, especially now that the umbrella organizations behind many crisis pregnancy centers push their affiliates to seek more medical licensing. Crisis pregnancy centers say it is a move to provide better care to women.
NARAL sees crisis pregnancy centers' push for more licensing as a grab for legitimacy—and a tactical error. "The more there's a relationship with the state, the more you have leeway to regulate crisis pregnancy centers," says Rebecca Griffin, an assistant director for NARAL in California. "It's an opportunity for us."