A Crisis for Crisis-Pregnancy Centers

How New Laws Target Prolifers
CNS photo

Crisis pregnancy centers are the compassionate face of the prolife movement. Pope Francis has likened their work to that of the Good Samaritan, and fair-minded people generally share that point of view. Centers depend on dozens of volunteers to give support to their clients. In my experience, these volunteers do so with empathy and great warmth.

I once heard a compelling account of a counselor at a center being contacted by a single mom with three children who had become pregnant again. The woman said, “There’s no way that I can have another baby! I can’t do this alone.” The counselor made some calls, and in half an hour had a volunteer to clean the woman’s home, another who was willing to buy groceries for the family for a year, and another who could offer respite child care. The woman kept her baby and received ongoing community support.

Such episodes give the lie to depictions of prolifers as dour zealots, unconcerned with the welfare of mothers or of children once safely born. Many centers provide impressive programs of ongoing support for their clients. Some offer classes in parenting, job seeking, budgeting, and other life skills. Many offer ongoing support groups for mothers. Some have programs to mentor men.

The centers are locally managed by volunteer boards of directors. Their outreach is shaped by local demographics and culture. One recently established center in the Twin Cities, Sagrada Familia, is run by Latinos. Another, Abria Pregnancy Resources, serves an inner-city community (“abria” signifies “strength and beauty” in contemporary street parlance). Almost all centers use social media, but they also rely on word-of-mouth referrals through local residents, churches, and civic organizations.

Catholics always have played a leading role in the pregnancy-center movement (as have Evangelicals in recent decades). The energy with which lay Catholics established centers in the 1970s and ’80s was one of the most impressive initiatives to rise out of Vatican II. It exemplified the council’s call for lay witness, solidarity with those in need, and the promotion of family life as articulated in Lumen gentium and Gaudium et spes.

One striking aspect of the pregnancy-center movement is the generous involvement of medical professionals. A large percentage of centers offer free ultrasound tests, which show the heartbeat and human form of the unborn child. Many offer STD testing, and some have prenatal programs as well. Some, like the Lake Superior Life Care Center in Duluth, Minnesota, provide free clinics, with doctors, nurses, and lab technicians volunteering on a rotating basis.

Most centers serve the poor and the working class, helping clients contend with material poverty, get prenatal services, and escape abusive relationships. Some even help clients acquire a GED. In areas where marriage rates are abysmally low, centers help young people envision stable family formation.

I’ve given pro-bono legal assistance to pregnancy centers for many years. In my experience, almost all the counselors are women, mostly younger women who can readily empathize with clients. The work is often daunting and stressful. Counselors answer hotlines, welcome unscheduled visitors, and strive to help clients deal with intractable problems. One counselor says, “What turns clients away? The things that would turn you away if you were in their place. Don’t overwhelm them with information. Don’t push your agenda (which might be, ‘Place the baby. Place the baby. PLACE THE BABY. Lose the boyfriend!’). The important thing is to express concern and let the Holy Spirit work.” The counselor adds, “Good listening is crucial, despite distractions. Sometimes I go into the bathroom at the center, turn out the lights, and ask the Holy Spirit to clear my mind” so as to be attentive to clients.

Sensitive counseling is the norm in pregnancy centers, not the exception. The proof of this is that there are few complaints from the hundreds of thousands of clients. (There are roughly three thousand pregnancy centers nationwide, and the annual number of clients is certainly in the six figures.)

The general public is aware of the centers and strongly approves of their work. That approval is shown in the bipartisan funding programs provided for them in many states.  Republicans and Democrats (including many who identify as prochoice) regularly support those measures. One example is the Positive Alternatives to Abortion program sponsored by the state of Minnesota. The Positive Alternatives program has operated since 2006, under Democratic and Republican governors and legislative majorities. The program makes financial grants each year through the Minnesota Department of Health. The department’s website explains that grants are made on a competitive basis “to non-profit organizations promoting healthy pregnancy outcomes and assisting pregnant and parenting women in developing and maintaining family stability and self-sufficiency.” Centers must demonstrate how they will use the funds for specific purposes: medical attention, nutritional services, housing assistance, adoption services, education and employment assistance, child-care assistance, and parenting education.

This is an agenda behind which a vast share of the public can unite. But pregnancy centers now face a serious and sophisticated threat, one that distorts the First Amendment, menaces religious liberty, and broadly imperils free speech rights.

 

FOR DECADES, pregnancy centers have been condemned by NARAL (the National Abortion Rights Action League). NARAL contends that centers manipulate, mislead, and intimidate women. A typical NARAL broadside, from a 2015 report titled Pregnancy Centers Lie, reads: “The American antichoice movement has built thousands of outposts across the country with the sole purpose of preventing women from accessing abortion (through lies and coercion), and they’re hiding in plain sight.... A disturbing number of these antichoice CPCs receive taxpayer funding to shame and manipulate women who seek medical attention and never get it.”

NARAL sends abortion-rights activists into pregnancy centers, masquerading as clients. The activists write tendentious accounts of the counseling they received. This is the equivalent of Exxon sending agents to report on Sierra Club meetings. A sweep through any grassroots movement can find unsophisticated people making unsophisticated remarks and occasional outright misstatements of fact. Some counselors certainly have flaws, and some centers genuinely need reform. But good-faith reporting strives for balance and a measure of objectivity. NARAL’s reports are simply agitprop.

If centers typically did the harsh and misleading things that NARAL contends, there would be no lack of indignant clients. But clients of the centers very rarely voice complaints. Moreover, in making its accusations, NARAL almost never names specific centers or counselors. Statements supposedly made by counselors are reported without attribution, and therefore cannot be refuted.

For many years, NARAL has sought to mobilize political opposition to the centers, with limited success. Its histrionic approach lacks credibility with the general public. Most people approve of giving positive alternatives to abortion. Recently, however, NARAL and its allies have won major victories. A few years ago, the City of Baltimore passed an ordinance requiring centers to post signs notifying women that they don’t provide or refer for abortions. A prolife center and the Archdiocese of Baltimore challenged the ordinance. 

A federal district court ruled in favor of the archdiocese and the center, holding the ordinance unconstitutional. The city appealed to the U.S. Court of Appeals for the Fourth Circuit. Dozens of law professors filed amicus curiae briefs on both sides. In Greater Baltimore Center for Pregnancy Concerns v. Mayor and City Council of Baltimore (2013), the Fourth Circuit ruled 8-4 in the city’s favor. The majority’s reasoning advances an ominous theory. Greater Baltimore held that even though a center charges nothing for its services, its advertising can be deemed “commercial speech.” “Commercial speech” (by contrast to political, religious, and artistic speech) has scant First Amendment protection. Governments can regulate it aggressively with consumer-protection laws. 

“Commercial speech” usually involves economic motivation. Applying this concept to pregnancy centers defies common sense. Nevertheless, the Fourth Circuit ruled that centers offer “commercially valuable goods and services” (such as free counseling, baby clothes, and ultrasounds) and that they compete for clients’ patronage in a marketplace of providers.

The four dissenting judges denounced the majority’s reasoning. Judge James Harvie Wilkinson pointed out the goose/gander implications of the case: “[C]ompelled speech can serve a prolife agenda for elected officials as well as a prochoice agenda.... It is easy to imagine legislatures with different ideological leanings from those of the Baltimore City Council enacting measures that require organizations like Planned Parenthood to post a statement in their waiting rooms indicating what services they do not provide. Indeed, after today’s decision, I would expect a flurry of such measures.”

Greater Baltimore’s holding was promptly expanded in California. A San Francisco ordinance bans misleading ads by pregnancy centers, whether “by statement or omission.” The ordinance authorizes lawsuits to correct “omissions.” A federal court upheld the ordinance, citing Greater Baltimore. An appeal is pending.

 

WHY DO THESE legal developments have dire implications for free speech? The First Amendment is in peril if suits can be brought to correct “omissions” in advertising dealing with disputed public issues. That peril is amplified when speech can be deemed “commercial” regardless of whether any product is being sold or any fee charged. The logic of these rulings could be used to attack “omissions” in ads for churches, for schools, for lectures, for renewable-energy initiatives, or for National Public Radio. (And, in consumer-protection lawsuits, losers also often must pick up the attorneys’ fees of the winners.)

Case law tends to drive legislation, and onerous statutes have since been passed in California and Illinois. California’s so-called Reproductive FACT Act took effect in 2016. Pregnancy centers there must post signs stating that free or low-cost abortions are available, with a telephone number to call. Several centers filed constitutional challenges, but the courts (including the U.S. Court of Appeals for the Ninth Circuit) have refused to enjoin the law. Therefore, centers must advertise abortion or face enforcement lawsuits and fines.

In recent months, Illinois has taken a very large additional step. Its statute governs doctors, nurses, and health-care providers, including pregnancy centers that offer medical services. The law requires that patients be told of the “benefits” of abortion. It also requires a referral to an abortionist if requested. Suits have been filed to strike this statute down on First Amendment grounds.

The Illinois and California statutes are fundamentally different from other laws that regulate professional services. Abortion is qualitatively different from other medical procedures, since it involves taking human life. Compelling people to promote it, speak of its “benefits,” and actively assist in its procurement violates the deepest rights of conscience. The First Amendment forbids such laws. The Supreme Court has struck down laws compelling students to recite the Pledge of Allegiance. It has struck down a law compelling New Hampshire motorists to display the state motto (“Live Free or Die”) on their license plates. These precedents should also bar compelling health-care workers to speak against their consciences on abortion.

The issue of pregnancy centers’ free-speech rights likely will go to the Supreme Court. If the “commercial speech” theory prevails, centers will be besieged with lawsuits. The broad bipartisan consensus that has supported their work may break down. Prolife centers must strive to avert that breakdown. They must emphasize transparency and integrity in their work. NARAL’s reports are gross distortions, but they should motivate centers to review their policies, improve training, and avoid misstatements of fact. Centers have the goodwill of most of the public. It’s crucial to maintain that goodwill.

Friends of the First Amendment, including those who hold prochoice views, should come to the centers’ defense. Irresponsible use of the “commercial speech” doctrine can be invoked to intimidate opponents and harass community organizers, service groups, and advocates of all stripes. It can be used to justify measures stifling speech of any kind. As Judge Wilkinson stated: “Today it is the center; tomorrow it is who knows what speaker and who can guess what point of view.”

Published in the February 24, 2017 issue: 

John D. Hagen Jr. is a lawyer in Minnesota.

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