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Casey Meets the Crisis Pregnancy Centers

Published online by Cambridge University Press:  01 January 2021

B. Jessie Hill
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Extract

Recent cases about the constitutionality of compelled speech in the reproductive health care context contain an irony that is difficult to ignore. Whereas courts tend to be highly permissive when considering governmentally-mandated speech by physicians to patients seeking abortions, they have often been more skeptical of disclosure requirements imposed on crisis pregnancy centers (CPCs), which are nonmedical centers whose entire mission is to dissuade women from choosing abortion, and which have at least in some cases utilized deceptive techniques to accomplish that goal. In other words, it appears that non-physicians seeking to keep women from seeking a legal form of medical treatment have greater First Amendment protections than physicians who care directly for those women and who are generally entrusted by the state to exercise professional judgment.

Type
Symposium
Information
Journal of Law, Medicine & Ethics , Volume 43 , Issue 1 , Spring 2015 , pp. 59 - 71
Copyright
Copyright © American Society of Law, Medicine and Ethics 2015

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References

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 884 (1992).Google Scholar
Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd., 502 U.S. 105, 115–118 (1991).Google Scholar
Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,515 U.S. 557, 573 (1995) (internal quotation marks and citation omitted).Google Scholar
See Post, R., “Informed Consent to Abortion: A First Amendment Analysis of Compelled Physician Speech,” University of Illinois Law Review 2007, no3 (2007): 939–990, at 952–953.Google Scholar
Funder, J. W., “Medicine as a Profession,” Clinical Medicine 10, no3 (2010): 246–247, at 247.Google Scholar
Casey,505 U.S. at 884.Google Scholar
Id. See also Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985) (holding that compelled commercial speech does not violate the First Amendment when the required disclosure is “reasonably related to the State's interest in preventing deception of consumers”).Google Scholar
Lowe v. Securities and Exchange Commission, 472 U.S. 181, 210 (1985).Google Scholar
Id.Google Scholar
Id. (noting “there can be no doubt about the protected character of the communications, a matter that concerned Congress when the exclusion was drafted”).Google Scholar
Id., at 229 (White, J., concurring).Google Scholar
Id., at 230.Google Scholar
Id., at 232.Google Scholar
Halberstam, D., “Commercial Speech, Professional Speech, and the Constitutional Status of Social Institutions,” University of Pennsylvania Law Review 47, no4 (1999): 771–874, at 843, 852.Google Scholar
See id., at 844 (pointing to the fact that “a plaintiff in a malpractice case must demonstrate that the challenged advice not only was issued by a physician, but that it was conveyed in the context of an established physician-patient relationship”).Google Scholar
See Post, supra note 4, at 949.Google Scholar
Id., at 979; see also Post, R., “The Constitutional Status of Commercial Speech,” UCLA Law Review 48, no1 (2000): 1–57, at 40.Google Scholar
See Post, supra note 4, at 952.Google Scholar
See Stuart v. Loomis, 992 F. Supp. 2d 585 (M.D.N.C. 2014) aff'd. 774 F.3d 238 (4th Cir. 2014) see also Stuart, 774 F.3d. at 248.Google Scholar
Stuart, 992 F. Supp. 2d, at 599–60.Google Scholar
Id.Google Scholar
Id., at 600–601.Google Scholar
Id., at 600; see also Stuart, 774 F.3d at 251–54.Google Scholar
Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 536–37 (2001).Google Scholar
Id., at 544.Google Scholar
Keller v. State Bar of California, 496 U.S. 1, 13 (1990).Google Scholar
Moore-King v. County of Chesterfield, 708 F.3d 560, 569 (4th Cir. 2013) (“Moore-King's activities fit comfortably within the confines of professional speech analysis.”).Google Scholar
Id., at 568–69 citing Thomas v. Collins, 323 U.S. 516, 545 (1945) (Jackson, J., concurring).Google Scholar
See Funder, supra note 5, at 246.Google Scholar
See Bernstein, E. Lee, T. J., “Where the Consumer Is the Commodity: The Difficulty with the Current Definition of Commercial Speech,” Michigan State Law Review 2013, no1 (2013): 39–82, at 55–61; Halberstam, , supra note 14; Thomson, H. B., “Whither Central Hudson? Commercial Speech in the Wake of Sorrell v. JMS Health,” Columbia Journal of Law and Social Problems 47, no1 (2013): 171–206, at 172.Google Scholar
U.S. v. United Foods, Inc., 533 U.S. 405,409 (2001).Google Scholar
See Halberstam, , supra note 14, at 853–854.Google Scholar
San Diego Committee Against Registration and the Draft (Card) v. Governing Bd. of Grossmont, 790 F.2d 1471, 1478 (9th Cir. 1986) see also Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 633 (1980) (suggesting that nonprofit solicitations may involve commercial speech, which is often “intertwined with” noncommercial speech); Gaudiya Vaishnava Soc. v. City and County of San Francisco, 952 F.2d 1059, 1064 (9th Cir. 1990) (noting that nonprofits were engaged in commercial speech as well as “pure” speech); First Resort, Inc. v. Herrera, 2015 WL 739512, at *6-*9 (N.D. Cal. Feb. 20, 2015) (holding that a non-profit crisis pregnancy center was engaging in commercial speech when it advertised its services).Google Scholar
Thompson v. Western States Medical Center, 535 U.S. 357, 367 (2002) (quoting Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y., 447 U.S. 557, 566 (1980) (citations omitted).Google Scholar
See >Guttmacher Institute, State Policies in Brief: Counseling and Waiting Periods for Abortion (June 1, 2014), available at <http://www.guttmacher.org/statecenter/spibs/spib_MWPA.pdf> (last accessed February 17, 2015).Guttmacher+Institute,+State+Policies+in+Brief:+Counseling+and+Waiting+Periods+for+Abortion+(June+1,+2014),+available+at++(last+accessed+February+17,+2015).>Google Scholar
S.D.C.L. § 34–23A10.1(1)(b)-(c) cited in Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, 653 F.3d 662, 665–666 (8th Cir. 2011).Google Scholar
N.C. Gen. Stat. § 90–21.85(a) (cited in Stuart v. Loomis, 992 F. Supp. 2d 585). States have also required abortion providers to give information that is at least arguably medically inaccurate, such as stating that abortion was associated with an “increased risk” of suicide, Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, 686 F.3d 889 (8th Cir. 2012) (en banc) (upholding the requirement), and that a 19-week fetus “may be able to survive outside the womb,” Summit Medical Center of Alabama v. Siegelman, 227 F. Supp. 2d 1194 (M.D. Ala. 1194) (declining to issue a preliminary injunction against the provision). Although state-compelled, medically inaccurate disclosures also raise serious First Amendment concerns, this article focuses primarily on compelled ideological statements.Google Scholar
Sanger, C., “Seeing and Believing: Mandatory Ultrasound and the Path to a Protected Choice,” UCLA Law Review 56, no1 (2008): 351–408, at 379.Google Scholar
Stuart v. Camnitz, 774 F.3d 238 (4th Cir. 2014). The only U.S. court of appeals cases dealing with ideological informed consent requirements after Casey are Rounds, 686 F.3d 889 (8th Cir.2012), and Texas Medical Providers Performing Abortion Services v. Lakey, 667 F.3d 570 (5th Cir. 2012) (upholding a requirement that physicians display and describe an ultrasound and fetal heartbeat and that the woman listen to them). The U.S. District Court for the Middle District of North Carolina recently struck down the requirement that physicians perform and describe an ultrasound to patients, even unwilling ones, before an abortion. Stuart, 992 F. Supp. 2d 585. And in Planned Parenthood of the Heartland v. Heineman, 724 F. Supp. 2d 1025 (D. Neb. 2010), the district court found that the plaintiffs had a likelihood of success on the merits of their First Amendment challenge to disclosure requirements that required physicians to discuss non-standard and non-medical “risks” of abortion. Id., at 1032, 1048. That case settled without appeal. See Planned Parenthood of the Heartland v. Heineman, 2010 4609299 (D. Neb. Nov. 4, 2010) Finally, the district court issued a preliminary injunction against a requirement that abortion providers link to a government website stating, among other things, that “pregnancy begins at conception.” Comprehensive Health of Planned Parenthood of Kansas and Mid-Missouri, Inc. v. Templeton, No. 13–2302-KHV, 2013 WL 3322332 (D. Kan. June 30, 2013) It appears that summary judgment motions are currently pending in that case. Plaintiffs were unsuccessful in challenging a required statement as to when human life begins in Planned Parenthood of Indiana, Inc. v. Commissioner of the Indiana Department of Health, 794 F.Supp.2d 892, 918–19 (S.D. Ind. 2011), rev'd in part on other grounds, 699 F.3d 962 (7th Cir. 2012).Google Scholar
Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, 530 F.2d 724, 729 (8th Cir. 2008) (en banc) (quoting Planned Parenthood v. Rounds, 375 F. Supp. 2d 881, 887 (D.S.D. 2005)).Google Scholar
Id., at 734–35; see also Casey, 505 U.S. at 882.Google Scholar
Rounds, 530 F.3d at 734–736.Google Scholar
Lakey, 667 F.3d at 578–580.Google Scholar
Stuart, 992 F. Supp. 2d at 605–609; see also Stuart, 774 F.3d at 253–54 (“The rupture of trust comes with replacing what the doctor's medical judgment would counsel in a communication with what the state wishes told. It subverts the patient's expectations when the physician is compelled to deliver a state message bearing little connection to the search for professional services that led the patient to the doctor's door.”).Google Scholar
Gallacher, K., “Protecting Women from Deception: The Constitutionality of Disclosure Requirements in Pregnancy Centers,” Women's Rights Law Reporter 33, no1, 113–149, at 117–118 (2011).Google Scholar
Id.Google Scholar
Id. see also Chen, A., “Crisis Pregnancy Centers: Impeding the Right to Informed Decision Making,” Cardozo Journal of Law & Gender 19, no3 (2013): 933–960, at 935–936.Google Scholar
See Committee on Government Reform, U.S. House of Representatives,“False and Misleading Information Provided by Federally Funded Pregnancy Resource Centers,” Prepared for Rep. Henry A. Waxman (July 2006) (documenting false information provided by CPCs) Gallacher, , supra note 42, at 124–129.Google Scholar
N.Y.C. Admin. Code § 20–816(a)-(e) (cited in Evergreen Association v. City of New York, 740 F.3d 233 (2d Cir. 2014) cert. denied,135 S.Ct. 435 (Nov. 3, 2014)). A petition for certiorari was filed in the Evergreen case in June of 2014.Google Scholar
Montgomery County Board of Health Resolution No. 16–1252 (cited in Centro Tepeyac v. Montgomery County, 722 F.3d 184, p, (4th Cir. 2013)).Google Scholar
City of Baltimore Ordinance 09–252 (cited in Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore, 721 F.3d 264, 271 (4th Cir. 2013).Google Scholar
Evergreen, 740 F.3d at 245 (holding that either intermediate or strict scrutiny applied) Centro Tepeyac v. Montgomery County, 722 F.3d 184, 192 (4th Cir. 2013) (upholding district court's decision to apply strict scrutiny on appeal of preliminary injunction) see also O'Brien v. Mayor & City Council of Baltimore, 768 F. Supp. 2d 804, 814 (D. Md. 2011) (concluding “that the Ordinance regulates the Plaintiffs' fully protected non-commercial speech so that strict scrutiny is triggered”), aff'd sub nom. Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Baltimore, 683 F.3d 539 (4th Cir2012) on reh'g en banc, 721 F.3d 264(4th Cir. 2013) and aff'd in part, vacated in part, remanded sub nom. Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Baltimo, 721 F.3d 264 (4th Cir. 2013).Google Scholar
Evergreen, 740 F.3d at 245 & n.6.Google Scholar
Centro Tepeyac, 779 F. Supp. 2d 456, 468 (D. Md. 2011).Google Scholar
Id., at 463–464, 467. Although non-profit entities might be engaging in commercial speech when they solicit funds, such solicitation was not involved in the CPC cases. Riley v. National Fed'n of the Blind, 487 U.S. 781, 796 (1988).Google Scholar
Evergreen, 740 F.3d at 250, 251; Centro Tepeyac, 722 F.3d at 192.Google Scholar
Evergreen, 740 F.3d at 247–248. Centro Tepeyac, 722 F.3d at 192. In Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Baltimore, the en banc Fourth Circuit held that the district court abused its discretion in striking down without an opportunity for discovery the requirements that CPCs disclose the limited nature of their services. Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Baltimore, 721 F.3d 264 (4th Cir. 2013).Google Scholar
Evergreen, 740 F.3d at 247–251.Google Scholar
Centro Tepeyac, 722 F.3d at 190.Google Scholar
Greater Baltimore Ctr. for Pregnancy Concerns, 721 F.3d at 292–293 (Wilkinson, J., dissenting).Google Scholar
Id., at 294.Google Scholar
Id., at 296–297.Google Scholar
See Post, supra note 17, at 5 (“The boundaries of the category [of commercial speech] are thus quite blurred.”).Google Scholar
See Burrows, M., “The Cubbyhole Conundrum: First Amendment Doctrine in the Face of Deceptive Crisis Pregnancy Center Speech,” Columbia Human Rights Law Review 45, no3 (2014): 896–954, at 901–902, 919–931; Keighley, J., “Can You Handle the Truth? Compelled Commercial Speech and the First Amendment,” University of Pennsylvania Journal of Constitutional Law 15, no2 (2012): 539–616, at 542–543 (noting “the First Amendment doctrine's confused definition of commercial speech”).Google Scholar
See Keighley, , supra note 64, at 603–04 (criticizing courts for focusing too much on the religious motive for the speech).Google Scholar
See Burrows, , supra note 64, at 925 (noting that “the speech of those engaged in unlicensed occupations” is generally fully protected under the First Amendment).Google Scholar
See supra Part I.B.Google Scholar
See Post, supra note 4, at 952; Halberstam, , supra note 14, at 833–834.Google Scholar
See Keighley, , supra note 64, at 604.Google Scholar
Evergreen, 740 F.3d at 249.Google Scholar
Id.Google Scholar
Id. (emphasis added).Google Scholar
Id., at 250.Google Scholar
Tepeyac, 779 F. Supp. 2d at 467.Google Scholar
Teypeyac, 722 F.3d at 193 (Wilkinson, J., concurring) (emphasis added).Google Scholar
550 U.S. 124 (2007).Google Scholar
Rounds, 530 F.3d at 734.Google Scholar
Id.Google Scholar
Lakey, 667 F.3d at 576 (citing Casey, 505 U.S. at 871).Google Scholar
Id., at 580.Google Scholar
Hill, B. J., “What Is the Meaning of Health? Constitutional Implications of Defining ‘Medical Necessity’ and ‘Essential Health Benefits’ Under the Affordable Care Act,” American Journal of Law and Medicine, vol. 38, no2 & 3 (2012): 445–470, at 448–451.Google Scholar
Oral argument in McCullen v. Coakley, 134 S. Ct. 2518, 2014 WL 144977 (Jan. 15, 2014).Google Scholar
Id., at *29.Google Scholar
134 S. Ct. 2518, 2527 (2014).Google Scholar
Id., at 2527–2536. Indeed, at one point the opinion literally has it both ways, noting that “[a] group of individuals can obstruct clinic access and clog sidewalks just as much when they loiter as when they protest abortion or counsel patients.” Id., at 2531 (emphasis added).Google Scholar
421 U.S. 809 (1975).Google Scholar
Id., at 815 n.5.Google Scholar
Id., at 822.Google Scholar
Bigelow v. Commonwealth, 191 S.E.2d 173, 195 (Va. 1972) rev'd, 413 U.S. 909 (1973) See also Dent v. State of West Virginia, 129 U.S. 114, 121–123 (1889).Google Scholar
Id., at 196.Google Scholar
463 U.S. 60, 67 (1983).CrossRefGoogle Scholar
Id., at 67–68, 69.Google Scholar
Id., at 70–71 and n.19.Google Scholar
Guttmacher Institute, Fact Sheet: Contraceptive Use in the United State (Aug. 2013), available at <http://www.guttmacher.org/pubs/fb_contr_use.html> (last visited February 17, 2015).+(last+visited+February+17,+2015).>Google Scholar
See, e.g., § 4(c) of Alabama House Bill 57, Reg. Sess. (2013).Google Scholar
See, e.g., Cal. Bus. & Prof. Code § 1701.1 (West 2011) N.J. Stat. Ann. § 2C:21–20 (West).Google Scholar