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Crisis Pregnancy Centers: First Resort, Inc. v. Herrera

Couple

For a person facing unintended pregnancy and unsure what to do, sympathetic advertising about “crisis” support through the full range of options may provide reassurance and a deep emotional draw. But there is one type of clinic on the rise in California that rarely follows through on this advertised promise: anti-abortion crisis pregnancy centers (CPCs). CPCs offer pregnancy testing, “support,” and “community resources.” At best, CPCs masquerade as complete resources for pregnant women but instead provide limited options. At worst, they violate the critical tenet of honesty in healthcare by dangerously offering false medical information to clients.

In 2011, San Francisco signed in to law a city ordinance explicitly prohibiting CPCs from advertising falsely to obtain clients in search of abortion options. The ordinance was recently challenged by one local CPC, but last week a federal court ruled in favor of the City and dismissed the claim.

The San Francisco ordinance states that it is unlawful for “limited services pregnancy centers” to disseminate any untrue or misleading information about their services. First Resort Pregnancy Center, the CPC which filed the challenge, advertised on their website that they offer “abortion information, resources, and compassionate support for women facing the crucial decisions that surround unintended pregnancies and are considering abortion.” They did not, however, make clear that they are staunchly anti-abortion, with the goal to “build an abortion-free world,” and offer no abortion services or referrals. Though the City of San Francisco had not yet enforced the ordinance against First Resort, the center took to the courts to challenge it on Constitutional grounds. The court dismissed the suit on summary judgment (without oral arguments), finding that none of First Resort’s three primary arguments held any merit. 

How the Court Case Arguments Went

  1. First, they claimed that the ordinance violated their First Amendment rights to free speech, and that First Resort's advertising was not unprotected commercial speech because it was not economically-motivated and they receive no fees for services. The court disagreed, since First Resort’s ability to attract clients is directly related to their ability to fundraise and stay in business. The court categorized First Resort’s web advertising as commercial speech that is false or misleading, which is directly regulated by the ordinance and receives no First Amendment Protection.
  2. Second, First Resort claimed that they were being treated differently than other clinics that do provide abortion services, and this violated their constitutional right of conscience.  The court clarified that the right of conscience means only that the government cannot compel an entity to say something that they don’t believe in. The ordinance does not require First Resort to say anything affirmative about abortion beliefs; it only requires that they not say something that would mislead prospective clients.
  3. Finally, First Resort argued that the ordinance is unnecessary since the state already has a law that prohibits false advertising. The court found that the city ordinance and state code section do not conflict or substantively overlap. The ordinance is broader, because it proscribes not just advertising goods for sale, but targets false advertisement for proposed performance of services.

What's Happening Next

Planned Parenthood champions honesty and patient education in all reproductive healthcare, and applauds both the City of San Francisco and the court in upholding this ordinance. The potentially severe consequences of CPCs’ false advertising cannot be understated, and we appreciate the clearly reinforced dedication to ensuring that pregnant people have compassionate and respectful access to a full range of options, without the temptation of false or misleading advertising. 

In upholding the San Francisco ordinance, the court expressed clear disapproval of the growing number of CPCs in California that intentionally seek to mislead pregnant women. “From the City’s perspective, such deception is harmful, especially to indigent women facing unintended pregnancies. For these particular women, time is of the essence, and even a few days delay in accessing emergency contraception or abortion services can render less invasive options unavailable.”  

New Report on CPCs from NARAL

NARAL Pro-Choice California Foundation has released a March 2015 report about Crisis Pregnancy Centers - check out the new report! (PDF)

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