In a case known as NIFLA v. Becerra, the five conservative justices of the Supreme Court ruled Tuesday that anti-abortion “crisis pregnancy centers” should have heightened free speech protections that real doctors and abortion clinics do not.
It was this straightforward-seeming bit of hypocrisy that Justice Stephen Breyer seized on in his dissent. “If a State can lawfully require a doctor to tell a woman seeking an abortion about adoption services,” he wrote, “why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive health care about childbirth and abortion services?”
But the high court had delivered a ruling written by gaslight. The justices struck down a California law requiring that Christian-run CPCs ― which often masquerade as real medical clinics in order to lure in reluctant pregnant women and then counsel them against abortion ― disclose to women if they have no licensed medical professionals on staff and that abortion services are available elsewhere.
The majority opinion’s logic, as articulated by Justice Clarence Thomas, is that a CPC medical counselor is not actually providing medical counsel. Informed consent laws, the argument goes, apply only to places that provide actual medical services, not to fake pregnancy clinics that merely pretend to.
“The licensed notice at issue here is not an informed-consent requirement or any other regulation of professional conduct,” Thomas wrote. “It applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed.”
The ruling could resonate beyond the issue of fake pregnancy clinics. Thomas went out of his way to note that the same First Amendment protections do not apply to doctors in states like Mississippi and Arizona who are required by the state to tell women false information about abortion ― such as the supposed link between abortion and breast cancer, or that abortion is “reversible.” Those are still legitimate informed consent laws, Thomas wrote, because they apply to actual medical procedures.
The high court’s opinion ― which is very protective of free speech generally ― could actually make it harder for reproductive rights advocates to challenge those mandated speech laws on behalf of doctors.
“The decision today doesn’t bode well for any First Amendment challenges to biased counseling requirements,” said Heather Shumaker, senior counsel at the National Women’s Law Center. “Thomas made a really incongruous distinction between First Amendment protections for CPCs that exist to deceive women and don’t provide a variety of medical procedures, and real providers that provide medical care.”
“It created a double standard,” said Amy Myrick, staff attorney for judicial strategy at the Center for Reproductive Rights, who co-authored an opinion piece on Tuesday’s decision for HuffPost.
The Center is currently challenging a law in Mississippi that compels doctors, under threat of criminal prosecution, to tell women false and misleading information about abortion, including that breast cancer is a risk associated with ending one’s pregnancy.
There are similar laws all over the country. Twenty-eight states require abortion clinics to carry state-written brochures containing information about alternatives to abortion, like adoption, and the supposed risks associated with the procedure, even if that information is not supported by science or medical research. Six states force doctors to inform women that abortion has serious mental health consequences, though studies by the American Psychological Association have shown that having an abortion has no more of an effect on mental health than continuing an unintended pregnancy to term. A handful of states make doctors tell women that abortion jeopardizes future fertility ― again, not true ― or that abortion can be reversed.
“Some of these abortion restrictions are way beyond the parameters of bona fide informed consent,” Myrick said.
Attorneys for the CPCs successfully argued that because the counseling centers’ main purpose is to dissuade women from having abortions, requiring them to post information about the availability of abortion services elsewhere was akin to forcing McDonald’s to post directions to the nearest Burger King. The Supreme Court agreed in its majority opinion that informed consent laws should not be imposed on a business that is not providing actual medical services.
The problem is that many women do visit crisis pregnancy centers thinking they are going to receive real medical services. CPCs often set up near hospitals, offer free diapers, sexually transmitted disease testing and “pregnancy services,” and dress their staffers in scrubs. They give themselves names like ”Choices,” creating the illusion that they offer pregnant women ― well, choices.
“Of course the people coming to an anti-abortion counseling center are coming under the premise of getting a medical procedure,” Shumaker said. “Even coming in for childbirth has medical implications. It’s rather absurd to distinguish between those going to an abortion clinic and an anti-abortion counseling center.”
The fact that Thomas and the four concurring justices took such care to protect current anti-abortion laws is not a good sign for the future of U.S. reproductive rights, as states continue to pass laws chipping away at a woman’s right to choose.
“One vote made all the difference today,” said Ilyse Hogue, president of NARAL Pro-Choice America, “and it could also be the only thing between upholding Roe [v. Wade] or outlawing legal abortion in America.”