In Maryland, Free Speech Protects the Right of Crisis Pregnancy Centers to Lie to Women: An Analysis of the Baltimore CPC Case
In the wake of the more than 1100 bills that have been rammed through state legislatures across the country, and as state legislators try to legislate women’s bodies while at the same time preventing them from calling a vagina “a vagina,” one important front in the “war on women” has gotten very little media attention — the scourge of crisis pregnancy centers (CPC).
In clinics nationwide, young women — mostly poor women — are lured into so-called “crisis pregnancy centers” which falsely advertise themselves as health clinics, but which are anything but. These crisis pregnancy centers are often set up and run by Catholic churches, which, for obvious reasons, doesn’t bode well for any woman seeking information about contraception or terminating a pregnancy.
Instead of offering counseling about a woman’s choices, these CPCs steer women towards a right-wing, anti-choice agenda, using Jesus and guilt as weapons. Some of the more pernicious CPCs manipulate women using tactics that include scheduling appointments weeks after they are requested, such that women who finally visit a CPC and realize that the center does not provide abortion services may be too far along in their pregnancy to terminate. These despicable tactics are calculated to force women into carrying pregnancies to term even if those women have already decided that they want to get an abortion, and visit a crisis center believing that abortions are available at that particular center. These tactics also deprive women of the freedom to make a choice for themselves without having a self-righteous third party take credit for a difficult choice that they made on their own.
Some of these crisis centers outright lie to women. A 2006 Congressional investigation by Rep. Henry Waxman (D-CA) found that 20 of 23 crisis pregnancy centers gave women false medical information, such as telling women that abortion can lead to breast cancer, suicide, and fertility problems. Additionally, the investigation found that these CPCs lure women into limited services pregnancy clinics that do not provide abortion services by placing ads in the Yellow Pages under “abortion services” and on the Internet generated by keyword searches of “abortion” and “abortion services.”
In 2009, the City of Baltimore adopted an ordinance requiring organizations that provide pregnancy-related services for a fee (but which do not provide abortion or birth control services) to post a disclaimer stating as much. Relying on reports which found that pregnancy centers in Baltimore used some of the deceptive tactics described above, as well as on testimony from a 2009 City Council hearing during which several women complained about being deceived by pregnancy center advertising, the City of Baltimore acted to protect the health and safety of Baltimore women, in an effort to ensure that none would be misled or deceived by false advertising and dishonesty.
In response, Archbishop Edward O’Brien, St. Brigid’s Roman Catholic Congregation, Inc. and the Greater Baltimore Center for Pregnancy Concerns, Inc. sued the City, arguing that requiring such a disclaimer infringed their First Amendment right to free speech. The City of Baltimore counter-argued that the disclaimer was necessary because the City has an interest in protecting the health of pregnant women and in ensuring that pregnant women who seek abortions have prompt access to medical services.
The Pregnancy Center disagreed, apparently believing that it should be allowed to withhold critical information because to disclose that it doesn’t offer birth control and abortion services by placing a sign in the waiting room violates its — and the Catholic Church’s — moral and religious beliefs. One would think that if a CPC doesn’t plan to offer a full range of pregnancy-related services or disclose that it limits the services that it does provide to those services that are Church-approved, that particular CPC should get out of the pregnancy-related services business. But that’s just me.
The Pregnancy Center also complained that the Baltimore ordinance specifically targeted pro-life pregnancy centers and thus regulates “regular communications at the Pregnancy Center that are personal, moral, political, religious.” (Yes, the Pregnancy Center called its false advertising “personal communications.” Remember — corporations are people, my friend.)
Absurdly, the Pregnancy Center protested that the disclaimer, which consists of a single sentence — “We do not provide or offer abortion or birth control services” — somehow “compels [the Pregnancy Center] to deliver the implied message that these services are available elsewhere and should be considered,” and thus “legitimizes” such services. I suppose that might be true. To the extent that any woman in Baltimore is completely unaware that abortions and the pill exist in the first place, a disclaimer that a particular CPC doesn’t offer such services might put an idea in that woman’s heads. Then again, I think you’d be hard-pressed to find any woman that is not generally aware of her reproductive choices in the event of a pregnancy crisis, even if she may not specifically be aware of the specifics of those options.
And, as if all the nonsense hand-wringing about morals and religion wasn’t enough, the Pregnancy Center seemed downright insulted that the ordinance required it to post a sign saying that it does not provide birth control services. The Pregnancy Center offers birth control services in the form of “education about abstinence and natural family planning,” you see, which, according to the Pregnancy Center, is a medically recognized means of birth control. (Sure it is — it’s also super useful when one is pregnant and in a pregnancy crisis. I’m sure the first thing on any pregnant woman’s mind is “Where can I go to get some education about abstinence with a side of moral judgment?”)
Upon even the most cursory examination, the Pregnancy Center’s claims collapse under the weight of their self-righteous absurdity. A disclaimer that a CPC does not provide or make referrals for certain services does not imply that such services are available and should be considered. Women who walk into a CPC likely have expectations about what sorts of services will be available to them, even though they may not know what their choice ultimately will be. The Baltimore ordinance simply safeguards against false advertising, and protects women from being lambasted by religious zealotry when they walk into a CPC expecting that abortion services will be available.
Similarly, women likely have expectations when they walk into a CPC for birth control services. They want to know what their options are. Abstinence and natural family planning is a fine way to manage one’s sex life, I suppose, but neither is particularly useful in a pregnancy crisis. When you think “crisis pregnancy center” you think “There’s a place I’m going to go in order to get the morning after pill.” Right? I simply refuse to believe that any woman would go to a “crisis pregnancy center” in order to chat about abstinence with overbearing religious zealots who are required to “sign a statement affirming his or her Christian faith and belief that abortion is immoral,” as the employees of the Pregnancy Center are.
Given the sheer absurdity of the Pregnancy Center’s claims, it is hard to believe any court would swallow the sort of twisted logic that the Pregnancy Center served, but swallow it is exactly what the Court did:
We begin by noting that the ordinance does indeed compel the Pregnancy Center to speak, mandating it to post a sign that it “does not provide or make referral for abortion or birth-control services.” Moreover, in compelling that speech, the Pregnancy Center is, in this case, required to participate in the City’s effort to tell pregnant women that abortions are available elsewhere as a morally acceptable alternative, contrary to the moral and religious beliefs of the Pregnancy Center. A representative of the Pregnancy Center stated that absent the ordinance’s mandate, the Pregnancy Center would not speak to clients and potential clients in the manner required by the ordinance. (emphasis added.)
Nonsense. The City was simply requiring that CPCs disclose information: “No abortions here!” The disclaimer does not have to say, “Get Your Abortions Over There! Jesus Says It’s OK!” The notion that simply disclosing full and accurate information is somehow suggestive is patently ridiculous. Moreover, the fact that these CPCs actively seek to hide that information suggests that they are acting in bad faith from the outset, to the detriment of women.
The Court also concluded that the ordinance targeted pro-life speakers:
By its terms, Ordinance 09-252 does not apply to all speakers who “provide information” about pregnancy. Rather, the law targets only those speakers who refuse to provide or refer for abortions or certain types of birth control. This qualification effectively limits the law’s disclosure obligations to organizations whose moral or religious codes lead them to oppose abortion and birth control. These speakers are disfavored because they have chosen, for whatever reason, not to adopt the City’s preferred perspective on appropriate reproductive decisions.
To that, I say WHAT?!
The ordinance applies to pregnancy centers, defined as “any person” (1) whose primary purpose is to provide pregnancy-related services; and (2) who: (i) for a fee or as a free service, provides information about pregnancy-related services; but (ii) does not provide or refer for: (A) abortions; or (B) nondirective and comprehensive birth-control services.
Such statutory language could cover any number of groups, as the dissent rightfully points out, including Lamaze classes, doula services, or fertility clinics. Such groups would have no need to provide abortion or birth control services. More importantly, no woman going to a Lamaze class would feel deceived if abortion and birth control services were not available to her. The court simply pulled out of thin air the conclusion that the ordinance was targeted at specific speakers who disagreed with the City’S preferred perspective on reproductive choice.
Setting aside all of the logical failings in the court decision, here’s the kicker: The Pregnancy Center representative’s claim that absent the ordinance, the Pregnancy Center “would not speak to clients and potential clients in the manner required by the ordinance” is not really true. The Pregnancy Center actually does provide a disclaimer on its website. As the dissent points out:
[T]he Center’s website already provides a disclaimer explaining its position: “Our mission is to protect the physical, emotional and spiritual lives of women and their unborn children. We do not perform or refer for abortions because of the physical and emotional risks involved.” Center For Pregnancy Concerns, http://www.cpcforhelp.org (last visited June 19, 2012). The existence of such a disclaimer featured conspicuously on the website contradicts the assertion of the Center’s “representative,” referenced by the majority, that “the Pregnancy Center would not speak to clients and potential clients in the manner required by the ordinance.”
What the dissent does not lay out is the obvious reason that the Pregnancy Center objected to putting a sign in the waiting room, in addition to its website disclaimers. Given the manner in which these CPCs operate, it is likely that the Pregnancy Center intended to lure vulnerable women into its “clinic” and then put the Jesus squeeze to them. Such underhanded operational tactics would be undermined if a woman who found the Pregnancy Center listed in the Yellow Pages under “abortion services,” showed up to the clinic and saw a sign in the waiting room disclosing that the clinic doesn’t provide what she may already know she needs and what she expects to be available, whether it’s an abortion or the morning after pill. That woman would walk out of the Pregnancy Center.
Essentially, the Pregnancy Center (and others like it nationwide) want to pretend that abortions don’t exist, and that if only people stopped reminding women that abortions not only exist, but are legal, women would not get abortions. Problem solved! These crisis pregnancy centers play “hide and seek” with women’s health, and the Fourth Circuit has just paved the way to allow religion to trump common sense and women’s health concerns. As with reproductive health issues in politics generally, the health of women is treated as some sort of academic or religious inquiry, rather than the life-and-death matter that it is.
An unseemly comparison of women seeking medical care to purchasing a car underscores my point:
The district court in the Baltimore case suggested that a regulation requiring a non-American car dealership to post a sign that says, “We do not offer cars built in the United States” would be impermissible under the First Amendment because it would “handicap” BMW salespeople who didn’t want their customers to think about the fact that they are purchasing a non-American car. The district court remarked that, similarly, the Baltimore ordinance would harm the Pregnancy Center because when a woman “comes in and [the Center] says we don’t offer abortions” the woman thinks, “Oh, abortions, yeah, I guess I better ask about that.” The dissent remarked that “[c]omparing a woman’s right to seek lawful medical treatment to a salesperson’s economic interest in keeping his customers ignorant is, as the court initially thought before it made the comparison anyway, ‘a stupid example.’”
So there you have it. Regulations of communications designed to protect women’s health are as unnecessary as regulations of speech regarding types of cars sold, and abortions are nothing more than products sold by abortion salespeople. Just like a BMW enthusiast would not think about the fact that BMWs are not American cars, women wouldn’t even consider an abortion if they weren’t reminded that they exist.
We’re just that stupid. Thankfully, we have the Catholic Church to protect us from ourselves.