In a crisis pregnancy center in the heart of the Twin Cities in Minnesota, a counselor receives an online message. The sender says that she’s pregnant and scared and that she has no one to talk to. She has an appointment scheduled at an abortion clinic that very day. After a brief exchange with the counselor, she agrees to visit the center.
The woman says that everyone in her life is pushing her to have an abortion. After her first child was born, she had strong postpartum depression, and she has mental health concerns. She’s been told that it would be “irresponsible” to have another child. The counselor connects her with a mental health professional who has expertise in treating postpartum problems. The woman keeps her baby and forms ongoing friendships at the center. The counselor reflects that others “affirmed her greatest fears,” while “we affirmed not just the dignity and worth of her baby, but her own dignity.”
Such interactions occur every day in pregnancy centers. Some 3,000 of them operate across the country. They offer counseling, ultrasounds, material help, and community support to women with unexpected pregnancies. Over the last four decades, hundreds of thousands of people have volunteered in the centers, and millions more have donated to their work.
This is one of the great grassroots movements in American history. It has been consistently local in its focus, a Tocquevillean study in neighbors mobilizing to solve a problem. A typical center involves a volunteer board of directors, volunteer professionals (often a doctor and several nurses, a sonographer, a social worker), young women serving as peer counselors, and churches giving financial support. The centers exemplify civil society: mediating institutions working in the vital space between needy individuals and the state.
The centers’ chief resource is the empathy and commitment of peer counselors, most of whom are volunteers. Their generosity and compassion in answering hotlines, providing unscheduled consultations, and giving ongoing help to clients is the key to the centers’ success. Any center can offer compelling stories of assistance rendered to clients—couples living in cars who were helped to rent apartments, single mothers who were given respite childcare, high school dropouts who were helped to find jobs and to obtain degrees.
Many crisis pregnancy centers are organized as clinics, with doctors as medical directors. Thousands of doctors across the country have served as volunteers. They supervise pregnancy testing, ultrasounds, and testing for sexually transmitted infections. Some have onsite prenatal programs. Others (like the Lake Superior Life Care Center in Superior, Wisconsin) provide free clinics, with volunteer doctors and nurses offering a broad range of medical care.
Many clients of these centers are poor. For that reason, most centers offer various forms of material assistance. They can help clients find apartments, sometimes paying the first month’s rent. They often provide free baby clothing, diapers, strollers, car seats, and cribs. Many offer “Earn While You Learn” programs, in which clients take classes on various life skills—parenting, budgeting, job-seeking. By attending the classes, the clients earn points redeemable for baby goods.
Centers empathetically mentor women. Many have support groups for new mothers. They make a concerted effort to help women change the trajectory of their lives away from dysfunction and dependency on government assistance. They help women plan to obtain GEDs, find jobs, avoid abusive relationships, and seek stable family formation. Centers are rallying points in the culture, helping young people reorder relationships and aspire to a stable marriage.
The general public strongly approves of pregnancy centers. Many people who identify as pro-choice genuinely want to discourage abortion. The centers give impressive witness through their commitment and good will. It’s hard to think of another grassroots movement that has displayed more generosity with less self-interest, and the public understandably responds with approval. This is seen in bipartisan legislation in some states granting subsidies to pregnancy centers.
At least 11 states give grants of public money to pregnancy centers or have done so in recent years. Other states offer “Choose Life” license plates, with revenue going to the centers, and provide referrals to women seeking assistance. Such programs are offered in numerous swing states—among them Ohio, Florida, North Carolina, Pennsylvania, Wisconsin, and Minnesota—with Democrats as well as Republicans providing support.
Meanwhile, in several very liberal states, crisis pregnancy centers are under attack. Newly enacted statutes compel the centers to promote abortion and expose them to crippling lawsuits should they refuse. The U.S. Courts of Appeals for the Fourth and Ninth Circuits recently have stripped such centers of First Amendment protections. The Supreme Court likely will rule on these statutes, which profoundly threaten the future of the centers, seeking to deprive them of their free-speech rights and religious liberty.
For decades, these centers have been hounded by militant abortion-rights groups. The National Abortion Rights Action League (now known as NARAL Pro-Choice America) has been especially aggressive. NARAL conducts “investigations,” in which its activists pose as clients and then issue tendentious reports disparaging the centers’ work. But NARAL can show almost no complaints from the hundreds of thousands of authentic clients whom the centers have served.
NARAL depicts the centers as dour, morally judgmental, and rife with misinformation. Some centers undoubtedly could be improved, but NARAL’s reports are wild harangues, histrionic, and full of bluster (referring to them as “fake clinics,” “antichoice,” etc.). Such bombast rarely is given credence by the general public, which respects the centers and continues to support their work.
In recent years, NARAL has focused on lobbying very liberal city councils in large metropolitan areas. Several passed compulsory-signage ordinances, requiring centers to post signs in their waiting rooms, for example, or on their websites, usually with various disclaimers. Centers successfully challenged such ordinances in court in New York City, in Austin, Texas, and in Montgomery County, Maryland. They are textbook examples of government-mandated speech and of viewpoint discrimination, which courts almost always hold unconstitutional.
In 2013, however, the U.S. Court of Appeals for the Fourth Circuit altered the constitutional landscape. Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore was a First Amendment test case. Scores of law professors filed amicus briefs on both sides. The case was decided en banc (all 12 judges weighed in, rather than the usual 3-judge panel). The court upheld the contested ordinance by a vote of 8-4.
The Greater Baltimore Center for Pregnancy Concerns operates in a rent-free space at St. Ann’s Catholic Church in the heart of the city. The space is limited, and much of the counseling occurs in a small waiting area. The center tries to make this area welcoming and expressive of its mission. It contains copies of the Bible, a small statue of Jesus Christ, children’s books and toys, and a poster on prenatal development.
The center objected to posting a large, stark, government-mandated sign on its waiting room wall, as an ordinance required. It argued that the sign—specifying that the center does not provide abortions—would distort conversations with clients by making the conversation focus on abortion rather than on messages of support. It also objected on grounds of conscience to displaying a sign suggesting that abortion might be a good option. Similar arguments have prevailed in almost all First Amendment cases involving government-mandated speech. (In a leading case, the Supreme Court held that New Hampshire motorists could not be compelled to use license plates displaying the state motto, “Live Free or Die.”)
The Fourth Circuit’s majority, however (helpfully assisted by law professors), raised a novel theory. They held that pregnancy centers may be engaging in “commercial speech,” even though they charge nothing for their services. This has fateful implications. “Commercial speech” (unlike political, religious, philosophical, or artistic speech) enjoys less First Amendment protection. It can be regulated, restricted, enjoined, and penalized aggressively under consumer protection laws.
Greater Baltimore held that pregnancy centers may be deemed “commercial” because they offer “commercially valuable goods and services” (free counseling, free baby items, free ultrasound tests). The ruling suggested that centers might have hidden economic interests. The court therefore held that centers seeking First Amendment protection must submit to sweeping discovery in lawsuits (examination of their records, sworn depositions of personnel) to determine whether their work is “commercial.”
The dissenting judges in Greater Baltimore attacked this rationale. Pregnancy centers are not “commercial,” as a matter of common sense and under long-settled standards of law. Forcing centers through arduous litigation in order to vindicate their free-speech rights undercuts the First Amendment. Judge J. Harvie Wilkinson observed in dissent:
[T]he majority has licensed a fishing expedition into the Center’s motivations and operations on the off chance that it might turn up some vaguely “commercial” activity. . . . By encouraging the City to pry into every corner of the Center’s operations, the majority heavily penalizes this organization for attempting to defend its constitutional rights, a penalty that will only dissuade future victims of constitutional violations—and especially those who hold to the Center’s persuasion—from bringing suit in the first place.
Greater Baltimore opened the way for systematic attacks on crisis pregnancy centers. This highly elastic new concept of “commercial speech” could be used to justify onerous regulations, prosecutorial intimidation, and exhausting lawsuits. The first such move promptly came in the state of California, in the Ninth Circuit.
San Francisco has an ordinance exclusively directed at pregnancy centers. The ordinance bans any advertising “which is untrue or misleading, whether by statement or omission” (emphasis added). Hostile attorneys can use such a regulation to parse every word on a pregnancy center’s website and to challenge all sorts of “omissions.” Centers can be bled dry through attorneys’ fees, turned inside out by means of discovery, and compelled to speak in terms with which they profoundly disagree.
The San Francisco ordinance was challenged by a Bay Area center called First Resort. In late June, the Ninth Circuit rejected this challenge in First Resort v. Herrera. The Ninth Circuit held that First Resort’s advertising is “commercial speech” and therefore subject to strict regulation. It held the advertising “commercial” for two reasons: (1) the center “compete[s] with abortion providers for viewers’ attention” in “a competitive marketplace for commercially valuable services,” and (2) attracting clients impresses donors, who provide the center’s funds.
This is a genuinely radical opinion. Under the Ninth Circuit’s logic, all sorts of nonprofit activity could be deemed “commercial” and stripped of First Amendment protection. Mentoring and service organizations (the Boy Scouts, Boys and Girls Clubs, the Salvation Army) impress donors by attracting program participants. Church websites, free lecture programs, blogs, and nonprofit media “compete for viewers’ attention” in marketplaces with “commercially valuable services.” The Ninth Circuit’s First Resort ruling vastly expands the potential scope of government-mandated speech and of punitive viewpoint discrimination.
Meanwhile, three states have targeted pro-life centers with coercive statutes. California’s so-called Reproductive FACT Act took effect in 2016. The act compels pregnancy centers to publicize “free or low-cost access to . . . abortion,” with a telephone number to call for referrals. State and city prosecutors can sue to enforce compliance, with financial penalties. The Ninth Circuit held this statute constitutional in NIFLA v. Harris (2016). It used a “professional speech” rationale (much like the “commercial speech” rationale and likewise radically expansive) to curtail pregnancy centers’ First Amendment rights.
An even more aggressive statute was passed in Illinois last year and took effect in January 2017. It requires pro-life doctors and medical facilities to refer patients for abortion. It also requires them to discuss the “benefits” of abortion with patients. Suits have been filed to challenge this statute, and the issue almost certainly will go to the Seventh Circuit for resolution.
A similar statute has been enacted in Hawaii. Like the California FACT Act, it compels pregnancy centers to advertise abortions, with a telephone number to call. One such center is located in an evangelical church, the Calvary Chapel Pearl Harbor. The statute requires the chapel to post an abortion referral notice on its wall. The statute also expressly authorizes private parties to sue centers that fail to post such notices and to collect attorneys’ fees—an existential threat to the centers.
All these actions by states and cities stand in stark contrast with U.S. Supreme Court case law. Under Chief Justice John Roberts, the Court has been conspicuous for protecting free-speech rights in recent years. It has extended the First Amendment to cover all sorts of repellent expression. U.S. v. Stevens (2010) struck down a law forbidding “crush videos,” depicting cruelty to animals. Brown v. Entertainment Merchants Association (2011) struck down a ban on violent video game sales to minors. Snyder v. Phelps (2011) gave protection to demonstrations at military funerals by the odious Westboro church. U.S. v. Alvarez (2012) protected impostors claiming to have received military honors. Reed v. Town of Gilbert (2015) quoted Justice Thurgood Marshall’s famous description of the First Amendment, that government “has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”
These holdings obviously are in tension with anti-pregnancy-center laws and with the judicial opinions upholding those laws. The Supreme Court teaches that outright falsehood and all sorts of vicious speech are immune to government control. But pregnancy centers now are exposed to fines, injunctions, and attorneys’ fees if their ads are deemed “misleading” or fail to include pro-choice messaging demanded by their critics.
This incongruity calls to mind one of Justice Antonin Scalia’s great dissents, in Hill v. Colorado (2000). Hill curtailed pro-lifers’ free-speech rights by outlawing protests in close proximity to abortion clinics. Scalia accused the Court of using an “ad hoc nullification machine” to bulldoze principles of law whenever abortion comes into issue. He showed how the Court had distorted precedents, relabeled concepts to evade precedents, and disfavored speech that it zealously protects in other contexts.
The “ad hoc nullification machine” is in full gear in the lower courts. The impulse to maximize abortion rights is driving dangerous distortions of First Amendment law. Irresponsible use of the “commercial speech” concept has menacing implications. Judge Wilkinson warned in Greater Baltimore: “Today it is the Center; tomorrow it is who knows what speaker and who can guess what point of view.”
NARAL and its allies may overreach in pursuing these attacks. Crisis pregnancy centers enjoy the goodwill of most of the public and most state legislatures. But their best defense is testimony from the hundreds of thousands of women they’ve helped. The Tocquevillean robustness of the movement may yet stop the “ad hoc nullification machine” in the courts.
Pro-life groups and pro-life attorneys are marshaling to resist the legislative and judicial attack. They recently won a key victory in the ongoing Greater Baltimore case. The Greater Baltimore Center soldiered through an arduous discovery process and was granted summary judgment. The court found no proof of economic motivation, and it concluded that Baltimore’s ordinance wrongfully burdened the center’s noncommercial speech. The city has appealed to the Fourth Circuit, and the case is pending there. The center is supported by 29 amici, including 10 state attorneys general (representing West Virginia, Alabama, Arkansas, Kansas, Michigan, Nebraska, Ohio, South Carolina, Texas, and Utah). The city is supported by 16 amici, including NARAL Pro-Choice America, Planned Parenthood of Maryland, and a group from Yale Law School.
Two other encouraging (though provisional) decisions have recently been handed down. The Illinois law compelling healthcare professionals to speak of abortion’s “benefits” has been preliminarily enjoined. The federal district court for the Northern District of Illinois responded to pleas from numerous amici, including Heartbeat International (representing 1,300 pregnancy centers nationwide), the American Association of Pro-life Obstetricians and Gynecologists, and the Christian Medical Association. The court held that Illinois’s law could “implicate them in destroying a human life and violate one of the leading principles of the Hippocratic Oath, that doctors do no harm to those under their care.”
A court also recently refused to dismiss a lawsuit challenging California’s Reproductive FACT Act under the state constitution. In Scharpen Foundation v. Becerra, the Riverside County Superior Court deplored the statute’s coercive nature. It held that the FACT Act forces centers “to point the way to the abortion clinic” and “use[s] the wall of the physician’s office as a billboard” touting abortion. It held that the legislature may not “impress free citizens into State service in this political dispute.”
Meanwhile, a certiorari petition from the Ninth Circuit to the Supreme Court was filed in NIFLA v. Harris. Numerous amici joined in support. Supreme Court intervention on this issue is crucial to stop the impetus of NIFLA, First Resort, and the original en banc opinion in Greater Baltimore.
That jurisprudence threatens everyone. It radically deforms the First Amendment. The “commercial speech” doctrine (and the related “professional speech” doctrine) was never intended to silence political opponents. A Supreme Court ruling repelling that threat would be a victory not just for crisis pregnancy centers, but also for the First Amendment and the future of the republic.
John D. Hagen Jr. is a lawyer in Minnesota who has provided pro bono assistance to pregnancy centers.
