1

CRISIS PREGNANCY CENTERS AND FREEDOM OF SPEECH IN HEALTHCARE

Eva House

LGLS 107

19 December 2019

I. Introduction: A Brief History of Crisis Pregnancy Centers

“Pregnant & Alone? Know Your Options!” Crisis pregnancy centers (CPCs), which
target pregnant women with billboards like these and attempt to persuade them not to get
abortions, have existed in the United States for at least fifty years. In 1967, Robert Pearson
opened his CPC in Hawaii—one of the first in the nation—with a policy of purposefully
withholding information from pregnant women in order to prevent as many abortions as possible.
1
He stated: “A killer, who in this case is the girl who wants to kill her baby, has no right to
information that will help her kill her baby. Therefore, when she calls and says, ‘Do you do
abortions?’ we do not tell her, ‘No, we don't do abortions.’”2 Pearson spread his philosophy
through a how-to manual for CPC administrators, and his ideology continues to prosper in CPCs
today.3
The next year, an international network for CPCs called Birthright was founded in
Toronto by Louise Summerhill. Fifty years later, networks continue to be a driving force of CPC
expansion. As of 2013, there were between 2,300 and 4,000 CPCs in America, and about 1,800
abortion clinics, though there is no official data due to CPCs’ lack of regulation and
organization.4 Most of these CPCs are members of networks, the largest being Carenet,
Heartbeat International, and NIFLA (the National Institute of Family and Life Advocates).5
Carenet and Heartbeat are both openly Christian-based organizations. Even if they do not
advertise themselves as such, many CPCs are associated with Catholicism or evangelical
Christianity. For example, the Catholic Foundation is the “official planned giving partner” of the
seemingly secular Women’s Care Center of Ohio, one of Ohio’s most successful CPCs, and the
Columbus WCC Chairman of the Board is Bishop Frederick Campbell of the Catholic diocese.6

1
​Alice Chen, "Crisis Pregnancy Centers: Impending the Right to Informed Decision Making," ​Cardozo Journal of
Law and Gender​ 933, no. 19 (2013): 935.
2
Chen, “Crisis Pregnancy,” 935.
3
Chen, “Crisis Pregnancy,” 935.
4
Chen, “Crisis Pregnancy,” 937.
5
Chen, “Crisis Pregnancy,” 936.
6
Women’s Care Center, accessed November 18, 2019, https://supportwomenscarecenter.org/locations/columbus/.
 2

Being largely religious and ideological institutions, CPCs were historically privately
funded, but this policy changed during the administration of George W. Bush; CPCs received
over $30 million in federal funding from 2001 to 2005.7 Under the Obama administration,
federal funding of CPCs continued, but decreased significantly.8 In 2019, the Trump
administration further extended federal funding for CPCs by changing the structure of Title X,
which was created to make birth control and reproductive health care affordable. Before 2019,
Title X recipients were required to provide “neutral, factual, and nondirective information” on all
options for pregnant patients, including abortion.9 Under these limitations, CPCs were usually
not allowed Title X funding since they refused to provide information about abortions. However,
the 2019 rules issued by the Department of Health and Human Services “prohibit Title X
grantees from providing or referring patients for abortion, except in cases of rape, incest, or
medical emergency.”10 Today, organizations such as Planned Parenthood can no longer receive
Title X funding and organizations such as CPCs can receive Title X funding.
In examining the history of CPCs, it is clear that they have not been treated as any other
medical institution. Perhaps that is due to the reality that the only medical procedures CPCs
usually offer are pregnancy tests and ultrasounds, neither of which must legally be performed by
a licensed doctor. Still, CPCs often advertise themselves as offering medical services, and seek
legal protection under the same statutes as licensed general practitioners. One such case,
National Institute of Family and Life Advocates (NIFLA) et al. v. Becerra, Attorney General of
California, et al.​, which I will discuss later in this paper, found its way to the national courts last
year.
This case, along with other less impactful ones, draws the question: how do judges
differentiate between fact, professional opinion, and deception in their interpretations of the First
Amendment? Ultimately, my research finds that judges’ stances on fact and opinion in CPC
cases are determined by not only their moral opinion on abortion, but also their views on the
relationship between government and individuals, their concept of the identity of CPCs, and their
concept of whose interests the law is meant to protect.

II. Literature Review

The deceptive practices of CPCs are well-documented, but have not yet been direct cause
for legal debate at this time. My study seeks not to understand why or how CPCs deceive

7
Chen, “Crisis Pregnancy,” 938.
8
Chen, “Crisis Pregnancy,” 939.
9
​Kinsey Hasstedt, "A Domestic Gag Rule and More: The Administration's Proposed Changes to Title X,"
Guttmacher Institute​ (blog), entry posted June 18, 2018, accessed November 18, 2019,
https://www.guttmacher.org/article/2018/06/domestic-gag-rule-and-more-administrations-proposed-changes-title-x.
10
​Sarah McCammon, "Planned Parenthood Withdraws from Title X Program over Trump Abortion Rule," NPR, last
modified August 19, 2019, accessed November 18, 2019,
https://www.npr.org/2019/08/19/752438119/planned-parenthood-out-of-title-x-over-trump-rule.
 3

patients, but rather how the concepts of deception and truth differ so greatly in the opinions of
various judges on the topic of CPCs. Before we can understand how judges view the speech of
CPCs, however, we must first examine the way speech can be viewed as a powerful act of law.
As Marianne Constable discusses in “Our Word is Our Bond,” the very existence of these
debates around how speech can be regulated acknowledges the idea that speech is an act.11
However, Constable adds, “contemporary U.S. law treads carefully around speech acts,
recognizing them as happenings, contesting their authority and power, and fearing their
unpredictability.”12 More specifically, Constable writes that, in perjury cases, courts tend to limit
themselves to regulation of a singular utterance or “locutionary act” rather than “inquiring into
potential deception in the context of a ‘total’ speech situation” and considering “a ‘totality’ of
circumstances.”13 This simplification prevents controversy and nit-picking in perjury cases.
However, as I will discuss in my findings, speech is rarely limited this way in CPC cases; it is
clear that both the illocutionary and perlocutionary aspects of CPCs’ speech have an influence on
the way CPCs are regulated.
Several previous studies addressed the ways that CPCs have avoided regulation on the
state and local level. Various CPCs have taken state and local governments to court after they
attempted to require CPCs to publicly display which services they do and do not offer. In these
cases, governments tend to claim that the speech of CPCs, especially the particular speech act
they attempt to regulate, is commercial and therefore does not merit full First Amendment
protection.14 Courts thus far have largely held in favor of CPCs, likely influenced by the fact that
commercial speech has yet to be legally defined and remains a hazy concept.15
In “Commercial Speech In Crisis: Crisis Pregnancy Center Regulations and Definitions
of Commercial Speech,” Kathryn E. Gilbert asserts that Maryland and New York’s district courts
“incorrectly applied a rigid definition of commercial speech unsupported by Supreme Court
jurisprudence” by “confusing the Supreme Court's definition of the core of commercial speech
with its limits.”16 Gilbert discusses another case used as a reference by CPCs, ​Central Hudson
Gas & Electricity Corp. v. Public Service Commission​, in which the Court describes commercial
speech as "expression related solely to the economic interests of the speaker and its audience."17
Courts have previously held that CPCs do not engage in speech solely relating to economic
interests, but Gilbert takes issue with these decisions. One problem Gilbert points out is that the
“‘economic interests of the speaker and its audience’ are often divergent.”18 While CPC services

11
Marianne Constable, "Our Word Is Our Bond," 2010, in ​Speech and Silence in American Law​, edited by Austin
Sarat (Cambridge: Cambridge University Press, 2010), 34, doi:10.1017/CBO9780511750724.002.
12
Constable, “Our Word,” in ​Speech and Silence​, 34.
13
Constable, “Our Word,” in ​Speech and Silence​, 35.
14
Kathryn E. Gilbert, "Commercial Speech in Crisis: Crisis Pregnancy Center Regulations and Definitions of
Commercial Speech," ​Michigan Law Review​ 111, no. 4 (February 2013): 594.
15
Gilbert, "Commercial Speech,” 596.
16
Gilbert, "Commercial Speech,” 595.
17
Gilbert, "Commercial Speech,” 597.
18
Gilbert, “Commercial Speech,” 601.
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are free and CPCs are founded for ideological purposes, many of CPCs’ clients visit them for
non-ideological and economic purposes; they simply seek free ultrasounds and pregnancy tests.19
Because CPCs are not advertised as anti-abortion, women who are seeking an abortion and do
not wish to be convinced otherwise may walk into CPCs without realizing their agenda. In
making the general statement that the speech of CPCs has no relation to economic interests,
courts ignore the interests of the women CPCs serve. Further, Gilbert recommends that in the
future, courts should address debates on commercial speech using the factor-based approach
described in ​Bolger v. Youngs Drug Products Corp.​ In this method, the three factors determining
what is commercial speech are “(1) whether the speech [is] an ‘advertisement,’ (2) whether the
speech [refers] to a specific product, and (3) whether the speaker [has] an ‘economic motivation’
for engaging in the speech.”20 This broader definition of commercial speech could be applied to
CPCs because they “advertise” services and products, even though their services are free.

III. Methods & Case Selection

CPCs are valuable organizations to study because they shed light on not only the state of
healthcare and current moral and religious beliefs surrounding abortion, but also the state of the
First Amendment and freedom of speech in a healthcare setting. In this study, I chose to focus on
NIFLA v. Becerra​. Not only is this case recent and therefore not widely covered in previous
papers, but it provides perhaps the best insight into arguments for and against regulation of
CPCs’ speech out of any case I have come across. ​NIFLA v. Becerra​ summarizes the current
state of affairs with regards to CPCs and the First Amendment.
In June of 2018, the Supreme Court made a crucial ruling that granted unprecedented
freedom to CPCs. In ​NIFLA v. Becerra​, NIFLA alleged that the state of California had violated
the First Amendment with the creation of its FACT Act, which required licensed CPCs to “notify
women that California provides free or low-cost services, including abortions, and give them a
phone number to call,” and required unlicensed CPCs to notify patients that they were
unlicensed.21 In the Court’s 5-4 decision in favor of NIFLA, Justice Clarence Thomas described
California’s FACT Act as a “content-based” regulation of speech which “[targets] speech based
on its communicative content.”22 Citing ​Reed v. Town of Gilbert​, Thomas argued that “such laws
[as the FACT Act] ‘are presumptively unconstitutional and may be justified only if the
government proves that they are narrowly tailored to serve compelling state interests.’”23 Thomas
added that the notice “[compelled] individuals to speak a particular message,” a message that

19
Gilbert, “Commercial Speech,” 602.
20
Gilbert, “Commercial Speech,” 604.
21
​National Institute of Family and Life Advocates, et al. v. Becerra, Attorney General of California, et al.​, No.
16-1140, slip op. Accessed November 18, 2019. https://www.supremecourt.gov/opinions/17pdf/16-1140_5368.pdf.
22
​NIFLA v. Becerra.
23
​NIFLA v. Becerra.
 5

promotes “abortion—the very practice that petitioners are devoted to opposing.”24 Similarly,
Chief Justice Roberts wrote that the FACT Act “compels individuals to contradict their most
deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all
of these.”25 With these statements, Thomas and Roberts imply that CPCs cannot be regulated
because they provide opinions, or “messages,” rather than factual medical advice. Thomas also
argued that “professional speech,” such as that of licensed CPC workers, should not be treated as
an exception to the First Amendment.26 He brought up the fact that doctors have differing ethical
views on subjects such as assisted suicide or medical marijuana, and that they are allowed to
express those opinions freely to their patients.27 But then, one might wonder, what is the
difference between giving a patient one’s opinion and suppressing the facts?
Justice Stephen Breyer, who wrote the dissenting opinion, argued that legal precedent
supported California’s act. Breyer cited ​Akron v. Akron Center for Reproductive Health, Inc.,​ in
which a city was not allowed to require doctors to tell women considering abortion that life
begins at conception.28 He also wrote that, as established in​ Zauderer v. Office of Disciplinary
Counsel​, states could require information to be spoken if it was “purely factual and
uncontroversial,” arguing that “the availability of state resources [such as abortion] is not a
normative statement or a fact of debatable truth.”29 Ultimately, Breyer concluded that the First
Amendment must be “applied evenhandedly between those who disagree so strongly,” and that
“a Constitution that allows States to insist that medical providers tell women about the possibility
of adoption should also allow States similarly to insist that medical providers tell women about
the possibility of abortion.”30 The majority was unconvinced that California’s requirements did
not impose an ideological agenda upon CPCs. But CPCs, at their core, are known for delivering
information with an ideological agenda. CPCs are religiously affiliated and motivated; the state
of California is not. The Court’s decision proved its loyalty to the religious rights and moral
values of individuals over the intervention of the government into deceptive practices.

IV. Findings

The factors affecting judges’ views on CPCs, and further, their opinions on fact and
deception, are more complex than they first appear. Firstly, opinions on CPCs’ speech partially
depend on one’s idea of the proper relationship between the government and the individual.
Should the government ensure that people are not spreading information which goes against
accepted scientific fact? Do citizens have the capability to decide for themselves whether an

24
​NIFLA v. Becerra.
25
​NIFLA v. Becerra.
26
​NIFLA v. Becerra.
27
​NIFLA v. Becerra.
28
​NIFLA v. Becerra.
29
​NIFLA v. Becerra.
30
​NIFLA v. Becerra.
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organization is deceptive, or should they be led? Conservative judges, who traditionally

discourage government intervention in personal affairs, logically also tend to discourage the
government from regulating CPCs. However, the same judges tend to encourage regulations on
Planned Parenthood and abortion clinics. This contradiction is not simply because of their moral
beliefs, but also because of their views on speech and the identity of CPCs.
In CPC First Amendment cases, judges generally agree on locution, or what is said by
CPC staff members. They do not doubt that the availability or unavailability of abortion services
in a given clinic is an undisputable fact. In the most literal sense, they agree on the definitions of
the words being spoken. However, they disagree on what is done through this speech (the
illocutionary aspect of the speech). Conservative justices such as Thomas, and even justices who
have a more centrist track record on abortion rights, such as Roberts, argue that the speech act of
acknowledging abortion as an “option” inherently communicates an opinion, and therefore
violates the interests and freedom of CPC staff members. As Kathryn E. Gilbert points out, these
justices are more concerned with protecting freedom of speech and religion for CPC staff than
they are with ensuring that CPC clients receive the full spectrum of information and “options”
that they are advertised.
In describing CPC staff as individuals who are “devoted to opposing” abortion, who hold
“deeply held beliefs [...] grounded in basic philosophical, ethical, or religious precepts,” Thomas
and Roberts refer to staff members the way one would to missionaries or lobbyists, not
healthcare workers.31 Their language suggests a fundamental disagreement on the identity of
CPCs and their staff. Are CPCs counseling centers where religious people can share their
opinions on contraception and abortion with women who seek guidance, or are they deceptive
organizations that take advantage of poor and needy pregnant women? Are CPC staff members
looking out for the best interests of every client, or are they set out to convince every client to
give birth to their child? The differences between the way CPCs are advertised and the reality of
their services make these questions difficult for judges to answer definitively. Further, this
confused concept of CPCs’ identity affects views of the perlocutionary element of the speech, or
what is understood by CPCs’ clients. Some judges work to allow CPCs to convince clients of
certain moral beliefs, while other judges work to ensure CPCs provide the client with enough
facts to make decisions for themselves.
In conclusion, the crisis pregnancy center is a phenomenon that challenges judges’
long-held views on abortion rights, speech theory, and the First Amendment. It is an issue that
requires extensive application and interpretation of the First Amendment, a document written
long before CPCs or any similar organizations entered the public consciousness. In fact, one
could argue that CPCs have yet to truly enter the public consciousness. Taking into account the
legal uniqueness of the situation, it is simple to understand how such widely criticized and

31
​NIFLA v. Becerra.
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contested organizations can continue to exist legally, and how the issue goes far beyond
discussions of the moral validity of abortion.
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Bibliography

Chen, Alice. "Crisis Pregnancy Centers: Impending the Right to Informed Decision Making."
Cardozo Journal of Law and Gender​ 933, no. 19 (2013): 933-60.

Constable, Marianne. “Our Word Is Our Bond.” Chapter 1. In ​Speech and Silence in American
Law​, edited by Austin Sarat, 18–38. Cambridge: Cambridge University Press, 2010.
doi:10.1017/CBO9780511750724.002.

Gilbert, Kathryn E. "Commercial Speech in Crisis: Crisis Pregnancy Center Regulations and
Definitions of Commercial Speech," ​Michigan Law Review​ 111, no. 4 (February 2013):
591-616.

Hasstedt, Kinsey. "A Domestic Gag Rule and More: The Administration's Proposed Changes to
Title X." ​Guttmacher Institute​ (blog). Entry posted June 18, 2018. Accessed November
18, 2019.
https://www.guttmacher.org/article/2018/06/domestic-gag-rule-and-more-administrations
-proposed-changes-title-x.

McCammon, Sarah. "Planned Parenthood Withdraws from Title X Program over Trump
Abortion Rule." NPR. Last modified August 19, 2019. Accessed November 18, 2019.
https://www.npr.org/2019/08/19/752438119/planned-parenthood-out-of-title-x-over-trum
p-rule.

National Institute of Family and Life Advocates, et al. v. Becerra, Attorney General of
California, et al., No. 16-1140 (June 26, 2018). Accessed November 18, 2019.
https://www.supremecourt.gov/opinions/17pdf/16-1140_5368.pdf.

Women's Care Center. Accessed November 18, 2019. https://supportwomenscarecenter.org/.