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Fake Crisis Pregnancy Clinics Are Taking Their “Free Speech” Claim to the Supreme Court

There is no First Amendment right to mislead patients.

(Image: Dariush M / Shutterstock)

Imagine that you go to a health care clinic with a time-sensitive medical condition. There, you meet with a person you believe to be a doctor but who, unbeknownst to you, actually holds no medical degree. The “doctor” deliberately gives you information about your treatment options that is false or, at best, incomplete. When you request your medical records so you can get a second opinion, they refuse.

It may sound far-fetched, but this is happening, right now, at crisis pregnancy centers (CPCs) all across the country. Their objective? To manipulate pregnant people into making “choices” that are based on an anti-choice religious agenda rather than what is best for the patients.

In fact, this is why crisis pregnancy centers exist: To prevent pregnant people from exercising their constitutional rights. How ironic it is, therefore, that these very same “clinics” are now seeking to hide behind the First Amendment to avoid complying with a California law that would counter their deceptive practices. An upcoming Supreme Court case will tackle one question: Does a health care provider (or worse, someone pretending to be a health care provider) have a First Amendment right to hide critical information from patients about their health or their treatment options? For the sake of anyone who may need medical care now or in the future, I hope the Supreme Court makes the right call with a resounding “no.”

Since the 1970s, CPCs, sometimes called “limited service pregnancy centers,” have been posing as walk-in medical clinics for family planning and pregnancy-related care. These so-called “clinics” use phrases in their advertisements like “evidence-based medical care” to lure unsuspecting, often young or low-income, patients into their offices. Their staff sometimes wear scrubs or white coats and perform quasi-medical services like pregnancy testing and ultrasound examinations, although they often have no medical education or training, and thus no business diagnosing anything. They provide information about contraception and abortion that is false or at the very least, misleading — all for the purpose of delaying a pregnant person’s decision-making process until it is too late to terminate the pregnancy.

These misrepresentations endanger the lives and health of patients, and the problem is extremely widespread. In fact, the number of CPCs in the United States vastly outnumbers real reproductive health clinics.

Even more concerning is that none of this is news. A major congressional report documented these deceptive practices way back in 2006. What is news is that, finally, states and local governments are fighting back. CPCs for the first time ever are finding themselves on the defensive.

In the Supreme Court case, three CPCs are challenging California’s Reproductive FACT Act, which requires licensed medical clinics to notify pregnant patients that they can receive information about state-funded prenatal care, family planning and abortion services by calling the county health department. It also requires any facility that provides services, such as pregnancy testing and ultrasound imaging, to inform visitors if the facility does not employ a licensed medical professional. The CPCs claim that the law violates their First Amendment rights insofar as it requires them to provide information about low-cost or free family planning services, including abortion.

This is nonsense. The FACT Act in no way interferes with anyone’s right to free speech, and there is nothing to prevent CPCs — licensed or unlicensed — from expressing their anti-abortion viewpoint. The law simply requires licensed health care providers to inform patients about all of the care that is available to them, and unlicensed pregnancy centers to be transparent about the fact that they are not medically licensed.

All of this information is critical to ensure patients can exercise informed consent — and it is well established that states can pass regulations to promote informed consent. At least, that is the position that the Supreme Court has taken with respect to so-called “informed consent” statutes that seek to discourage abortion.

In the end, the state’s interest in ensuring that pregnant people have the information they need to make meaningful decisions far outweighs any minimal interest that CPCs might have in concealing the fact that the state-subsidized care is available.

This, in a nutshell, was the conclusion of both courts that previously rejected the CPCs’ claims. It is now up to the Supreme Court to drive the point home and affirm that the First Amendment does not give health care providers, or so-called providers, the right to hide information that patients need to make informed decisions. The credibility of our health care system depends upon it.

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