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    Draft ordinances in Worcester regulating advertising practices of crisis pregnancy centers.

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    Draft ordinances in Worcester regulating advertising practices of crisis pregnancy centers.

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    771 views17 pages

    Crisis Pregnancy Centers Worcester

    Uploaded by

    neal mcnamara
    Draft ordinances in Worcester regulating advertising practices of crisis pregnancy centers.

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    of 17
    The City of some toy ee @iionctster ome Someereer Etic D. Betista, Cty Manager ‘Michael E, Traynor, City Soitor ‘August 22, 2023 Pregnancy Services Centers At its July 18, 2022, meeting, the city councit requested the preparation and submission ‘of two ordinances relative to pregnancy services centers. The two draft ordinances are enclosed. As | have oreviousy stated and for the reasons expressed herein, | recommend that neither ordinance be enacted. (One is modeled afler ordinances adopted in the cites of Somervile and Cambridge prohibiting deceptive advertising practices of limited services prognancy centers." The ‘ordinance would apply tothe advertising practices of lmited services pregnancy centers, but not to other facie that provide pregnancy-related services (Deceptive Advertising Ordinance”) ‘The Deceptive Advertising Ordinance is underinclusive and selective in its application. I apples to some pregnancy services providers but not all. Essentially, the ety would be ‘saying that it is unlewful for imited pregnancy services centers to engage in deceptive ‘advertsing, but there is no similar prohibition imposed on ful-service pregnancy services centers.” ‘The Supreme Coutt has noted that its ‘precedents are deeply skeptical of Inwe that ‘distinguish among diferent speakers, alowing speech by some but not others.” Nat? Institute of Family and Life Advocates v. Bacorra (NIFLA), 138 S.Ct, 2361, 2378 (2018), quoting Citizens United v. Federal Election Comm’n, 130 S.Ct. 876 (2010). “Speaker based laws run the risk that the sate has left unburdened those speakers whose ‘messages are in accord with ts own views." NIFLA at 2378, quoting Sorell. IMS Heath, Inc, 864 U.S, 552, 568 (2011), ‘Attempts to enact deceptive advertising statues in Connecticut and Ilinois have not been successful. "Atte eves regan cers eed by the rdnance a pregnaney srs centr that dot ct inept, pode asf, sora or meeneycerteceion $s otters to note that eth nied serves pregnancy cen operating Worcs nude ‘et respect one vein that they ono provide are for sbron saves. Problem regan ste states roem reguncy dosnt pron ote le aber, Cearway Cnc wba ate “Abortas, ston refer, Sith onl and emergency contraceptives oe rat mang the ede ee We The State of Connecticut passed a law very similar to the SomervleCambridge deceptive advertising ordinances. In October 2021, a few months folowing its effective date, ¢ lawsuit was fled seeking an injunction to prohibit enforcement ofthe statute and {@ declaration that the staule violated multiple First Amendment and other constitutional Protections ofthe plait? In January 2023, the parties entered a joint stipulation of dismissal. Its reported that during the itigaion the state atfomey general, Wiliam Tong, ‘stated that he had no basis to enforce the law Most recently, the State of Ilinois passed the Deceptive Practioes of Limited Services Pregnancy Centers Act, which “vars so-called ‘crisis pregnancy centers” for using misinformation, deceptive practices, or misrepresentation inorder to inerfere with access to abortion services or emergency contraception.” A lawsuit was fled immediately ater the bil was signed into law. On August 3, 2023, a federal judge fesued an injunction blocking enforcement for now. In issuing hs oral decision from the bench, the judge said the law was “painfuly and blatantly a violation of the First Amendment" {In my opinion the Deceptive Advertising Ordinance would not survive a First Amendment challenge. ‘The second ordinance would apply to any pregnancy services center provid regnancy-telated services. it would require a statement whether the center is ors not licensed medical facity, and that t does or does not provde certain ited services in its advertising media ("Transparency in Advertsing Ordinance’. In short, ts meant be a consumer information/protaction ordinance, the goal of which isto beter inform the publi. In NIFLA, the Supreme Court reversed the denial of preliminary injunction enjoining a Califomia statute that, ier afa, required unlicensed clinics providing pregnancy-related ‘services to slate thal Calforia had not licensed them to provide medical services Covered clinics were forced to provide a government-drated natice that the facity was not icensed by the State end had no licensed medical provider to provide or directly ‘2uperise the provision of eervies. The notice had to be posted et the entrance to the facility and in atleast one waiting room. The notice was required to be atleast 8° x 11" writen in no less then 48-poin type, writen in English and any addtional languages specified by California law ‘The Court, cing its precedents that @ disclosure statement cannot be “unjustly burdensome,” and that dischsures must remedy a harm thats “potentially real not merely hypothetical” and to extend "no broader than reasonably necessary.” found thal Pregnancy Suppor Cente, Willan Teg. No. 321.0346 (VAB, 8.0 0.7 eater neato) *asmanyas ten eflerent arguges NLA 32378. California, which had the burden to prove the notice was neither unjustified nor unduly burdensome, had not done so. NIFLA, at 2377 (internal quotations omitted). Even if California had put forth a nochypothetical basa for the notic, the Court said the: notice imposed a government-scrpted, speaker-based disclosure requirement. It targeted speakers not speech and imposed an unduly burdensome disclosure requirement that would cil their protected speech. NIFLA, at 2378, White the Court expressed no view on the legality ofa similar disclosure statement that 's better supported or less burdensome, despite good intentions the legally of the Transparency in Advertising Ordinance is dubious. The Transparency in Advertising Ordinance, whic» at its core is government requied speech, woul! presumptively be ‘subject to strict scrutiny review. | do not believe it would survive that narrow, demanding level of review. ‘Through you, Councilor Nguyen requested that both drat ordinances alo include certain definitions and two sections from the proposed Easthampton ordinance that address safe ‘access to protected healthcare information and a commitment that the City will post ‘consumer adviscries issued by the Commonwealth; the lnk to Healthcare Locations posted by the Massachusetts Department of Health, and the Pasting of information on the City’s website to advise residents of the Cty oftheir right to file @ consumer complaint against any crisis pregnancy center or other pregnancy-related services provides Lastly, as you requested, attached is an Append that includes the Somervile and (Cambridge ordinances, the Resolution adopted by the City of Framingham, the ordinance ‘adopted by the Easthampton City Council (subsequently vetoed by the Easthampton mayor), the Complaint fled in the Connecticut laweuit, the Joint Stipulation of Dismissal ofthat lawsuit, and the letter sent to the members ofthe city eoune, you and me from the Massachusetts Famiy Institute, ‘Sincerely, YihL Eien ‘Michael E. Traynor iy Solctor Enclosures DRAFT DECEPTIVE ADVERTISING ORDINANCE DRAFT AN ORDINANCE AMENDING CHAPTER 8 OF THE REVISED ORDINANCES ‘OF 2008 TO INSERT SECTION SE CONCERNING DECEPTIVE ADVERTISING PRACTICES BY CRISIS PREGNANCY CENTERS, SAFE ACCESS TO PROTECTED HEALTHCARE INFORMATION, PUBLIC AWARENESS INFORMATION: AND TO AMEND CHAPTER FIFTEEN, SECTION 2) ‘Beit ordained by the City Council ofthe City of Worcester as follows: SECTION 1. Chapter 8 of the Revised Ordinances of 2008 be and is hereby amended by inserting the following new § 9F a8 follows (a) Statement of Purpose. ‘The city of Worcester, acting by and through its City Council, hereby makes the: following findings: (2) Over decades, scores of public reports by nonprofit organizations and. ‘watchdog groups, exposés by investigative journalists, and poor-reviewed articles by acholars have documented the existence of organizations, often called crisie pregnancy centers (CPCa), that target prospective abortion patients with misleading ‘advertising, deceptive practices, and false medical claims’ and @) Misleading advertising, deceptive practices, and false medical claims. 4isproportionately impact poor and low-income communities, and adolescents: and Advisory in July 2022 warning the CPCs do not provide comprehensive reproductive health care and that many use decoptive and misleading practices and promote ‘inaccurate and misleading medical information: and ‘) The Massachusetts Department of Public Health's Office of Sexual Health and Youth Developient issued a “Warning About Crisis Pregnancy Centers" in July 2022, advising Massachusotts residents that they continue to have access to the full range of reproductive health services, including abortion, and that while CPCs may appear to be reproductive healthcare clinics, they do not provide comprehensive reproductive healthcare services or counseling, and further advises that CPCs de not provide abortion cere or abortion roferrale, contraception, ot other reproductive health care, despite what they may advertise, warning that prenatal eare, emergency contraception, and ebortion are time-sensitive services: and (6) Delayed access to abortion care or the inability to obtain wanted abortion. care negatively impacts a pregnant porson's health and welfarei and The inability to obtain wanted abortion care negatively impacts a pregnant: person's health and welfare: and (7) Pursuant to M.G.L.c. 12, § 11%, aocess to reproductive health care services and gender affirming health care sorvioes ia a right secured by the constitution and laws of the commonwealth. Interference with this right, whether or not under color of law, ig against the publi policy ofthe commonweslth and of the City: and ‘@) The City has a compelling governmental interest in promoting pxblic health, safety and welfare, and protecting people seeking reproduetive health care services from mislesding advertising, deceptive practices, and falee medical claim warned by the Department of Public Health and the Attorney General; Now, Therefore, the city council of the sity of Worccoter, in recognition of the advisories issued by the Massachusetts Attorney General and Massachusetts Department of Public Health is compelled to exercise the authority granted it under its city charter to protect and promote the public health. (©) Definitions. For the purposes ofthis section the following words and phrasee thall ‘have the following meanings: Abortion: The termination of « pregnancy for purposes other than producing alive birth. Abortion includes, but is not limited to, a termination of a pregnancy using pharmacologicel agents, Giiy Agent: any employee of the City, whether full time or part time, reguler or seasonal, any intern oF volunteer when or while acting on behalf ofthe City or any contractor for the City during the period of time any contract between the City and said contractor is legally operative or any recipient of City Funds, funding, grents, awards, or appropriations Client An individual who is inquiring about, secking, or receiving services at a pregnancy services center. Crisis Pregnancy Center. A pregnancy services center that does not directly provide, or provide referrals for, abortion care, abortion referrals or emergency contraception. Deceptive advertising practice: Any statement, including but not limited to fale ‘and misleading advertising, witha tendency to deceive that could cause an individual ‘to act differently than they would have acted and in used to solicit patronage of a crisis prognancy center, Bmergency Contraception: One or more prescription drugs (A) used separately or {in combination for the purpose of preventing prognancy: (B) administered to or eel ‘administered by a patient within a medically recommended amount of time after sexual intereourse (C) dispensed for such purpose in accordance with professional standards of practice: and (D) determined by the United States Food and Drug ‘Administration tobe safe for such purpose. Gonder Aftirming Heslth Care Services: all supplies, care and services of a ‘medical, behavioral heats, mental health, surgical, paychiatrc, therapeutic, ‘diagnostic, preventive, reaabilitative or aupportive nature relating to the treatment of gender dysphoria, Health Information: Any oral or written information in any form or medium that relates to health insurance or the past, present, or future physical or mental health or condition ofa client. This includes all HIPPA protected information. Legally Protected Health Care Activity: () the exercise and enjoyment, or attempted exercise and eajoyment, by any person of rights to Reproductive Health Care Services or Gender Affirming Health Care Services secured by the constitution or laws of the Commonvealth: or Gi) any act or omission undertaken to aid or encourage, or attempt to id or encourage, any pergon in the exercise and enjoyment, or attempted exercise and enjoyment, of rights to Reproductive Health Care Services or Gender Affirming Heaith Care Services secured by the constitution or laws of the Commonwealth, or to provide insurance coverage for such services. Provided, however, that the provision of such a health eare service by a person duly licensed ‘under the laws of the Commonwealth and physically present in the Commonwealth, ‘and the provision of insurance coverage for such services, shall be legally protected under this Ordinance if the service permited under the laws ofthe Commonwealth, regardless of the patient's location. And provided furter, that ‘legally protected health cae activity" shall not include any services rendered below an applicable profesional standard of care or that would violate antiscrimination lav of te Commonwealth, Pregnancy related service: Any medical or health counseling service in any way related to pregnancy ot pregnancy prevention, including, but not limited to, contraception and contraceptive counseling, pregnancy testing, pregnancy diagnosis, pregnancy options counseling, obstetric ultrasound, obstetric sonogram, prenatal ‘are, miscarriage management or the termination of « pregnancy. Prognancy services center. A facility, including « mobile facility, the primary purpose of which isto provide its clients pregnancy-related services that either: ) offers obstetric ultrasounds, obstetric sonograms, pregnancy testing or diagnosis or pronatal care to pregnant clients, or (B) has the appearance ofa medical facility by virtue of having two or more ofthe following factors presant: (i) Staff or volunteers who wear medical attire and uniforms: (i) one or more examination tables, (ii) a private or semiprivate room ‘or area containing medical supplies or medical instruments: Gv) staffor volunteers ho collect health information from clients: or (s) the facility ia loeated on the ime premises asa licensed medical facility or liconsed medical provider or shares {facility space with a licensed medical provider. a Reproductive Health Care Services: all supplies, care and services of « medical, behavioral health, mental health, surgical, psychiatric, therapeutic, diagnostic, preventative, rehabilitative or ‘supportive nature relating to pregnancy, ‘contraception, assisted reproduction, miscarriage management or the termination of « pregnaney. (© Deceptive Advertiaing Practices Prohibited No Crisis Prognancy Center, with the intent to perform pregnancy-related ice, shall make or disseminate before the public, or cause to be made or disseminated before the public, in any newspaper or other publication, through any ‘advertising device, or in any other manner, including, but not limited to, through use of the Internet, any statement concerning any prognancy'related service or the provision of any prognancy related service that isa deceptive advertising practice, ab efined in subsection (b), above, and that an objective reasonable person knows or ‘would know to be deceptive. (@ Safe Accoas to Protected Healthcare Information (A) All information related to Reproductive Health Care Services or Gender Affirming. Health Care Services for any individual, including individuals who are not residents of the City or the Commonwealth, held by any City Agent is and shall be kept confidential by all City Agents and shall not be released or disclosed to any third party! absent the order of court of competent juriadiction, (B) No City Agent may furnish information, assistance, or aid, ard no City resources, ‘materials or funds shall be used to facilitate or aid any person, entity or jurisdiction seeking to prohibit, criminalize, sanction, or bring or prosecute any criminal or civil faction against, or otherwise, interfere with any individual, extity or carrier that. seeks, receives, uses, nds in access to , aide or abets or provides, or attempts or intends to seek, receive, cause, aid in access to, aid or abet, or provide Reproductive: Health Care Services or Gender Affirming Health Care Services if such services are. Logally-Protected Health Care Activities. (©) Except as required by the order ofa court of competent jurisdiction, no person, regardless of residency or citizenship status, shall be held in custody by the ‘Worcester Police Department solely for seeking, receiving, causing, aiding in access to aiding or abetting or providing, or attempting or intending to seek, receive, cause, aid in acces to, aid or abet, or provide Reproductive Health Care Services or Gondor Affirming Health Care Services ifauch services are Legally-Protected Health Care Activities, se 1 MG. L6 4678 or any ote apples examton 4 (D) Bxcopt as required by the order of @ court of competent juriadition, any person ‘held in eustody by the Worcester Police Department shall not be remanded, transferred, renditioned or extradited to any other jurisdiction solely for having sought, received, caused, aided in accessing, aided or abetted or provided, or attempted or intended to seek, receive, eause, aid in access to, ad or abet, or provide [Reproductive Health Care Services or Gender Affirming Health Care Services, if such services are Legally Protectod Health Care Activities. (B) Notwithstanding the general prohibition of this section, City Agonts may provide information or assistance in connection with such an investigation or proceeding in response to the writen request of a person or entity who is the subject of such an investigation or proceeding (©) Public Avrareness ) The Departmect of Health & Human Services shall post on its official City webpage, and conspicuously post in City Hall, any current or future consumer advivories issued ty the Commonwealth related to Crisis Pregnancy Centers, Reproductive Health Care Services, and Gender Affirming Health Care Services. The Department of Health & Human Services shell also provide a link to Sexual and (B) The Department of Health and Human Services shall advise residents of the City ‘or their right to file @ consumer complaint rogarding a Crisis Pregnancy Center o other pregnancy related services provider (© Enforooment ‘This ordinance may be enforced by civil process, eriminal procoss or by non ‘criminal disposition as provided in General Laws, Chapter 40, § 21D. Violations shall bbe subject to a civil penalty of $300, or a criminal fino of $800, or a non-eritinal ‘disposition fine of $200. Every day or pert thereof in which any person is in violation ‘of these provisions shall constitute a single and separate offense. net 2423p tw as gb deta es 5 reproduce hahaa cons SECTION 2. Chapter 15 ofthe Revised Ordinances of 2008 be and is hereby amended by inserting the following new § 2(6)(87) as follows! (31) Deceptive Advertising Practices by Crisis Pregnancy Centers ~R.O.¢. 8, § 9% Enforcing Persons: Commissioner of Public Health de Human Services Ochers as may be authorized by the City Manager Penalties: {8300 (with each day constituting a separate violation) ‘Notwithstanding the above, any employee ofthe City found to have violated this Ordinance shal! be subject to the discipline policies ofthe City of Worcester., and any contractor ofthe City found to have violated this Ordinance shall be deemed in default of such Contract and shall thereafter be subject to the default provis the Contract. DRAFT TRANSPARENCY IN ADVERTISING ORDINANCE DRAFT AN ORDINANCE AMENDING CHAPTER 8 OF THE REVISED ORDINANCES ‘OF 2008 TO INSERT SECTION 9E, RELATIVE 10 TRANSPARENCY IN ADVERTISING BY PREGNANCY SERVICES CENTERS, SAFE ACCESS TO PROTECTED HEALTHCARE INFORMATION, PUBLIC AWARENESS INFORMATION; AND T0 AMEND CHAPTER FIFTEEN, SECTION 20) Be it ordained by the City Council ofthe City of Worcester as follows! ‘SECTION 1. Chapter 8 of the Revised Ordinances of 2008 be and is hereby amended by inserting the following new § 9E as follows (@) Statoment of Purpose. ‘The city of Worcester, acting by and through its City Council, hereby makes the following findings: 2) Over decades, scores of public reports by nonprofit organizations and watchdog groups, expoaés by investigative journalists, and peer reviewed articles by scholars have documented the existence of organizations, often called crisis Droancy centers (CPCS), that target prospective abortion patents with misleading Advertising, deceptive practices, and falso medical claims: (©) Mislecing advertising. deceptive practice, and idse modal claima

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