Can Anti-Choicers Pretend to Be Medical Providers? SCOTUS to Hear Fake Clinic Case

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Tuesday March 20, 2018 · 7:42 AM PDT

2018/03/20 · 07:42

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More than 2,700 fake medical clinics—sometimes called crisis pregnancy centers—around the country use deceptive tactics to talk women out of abortion. Today, the U.S. Supreme Court will hear oral arguments in NIFLA v. Bacerra, a case challenging a California law designed to prevent fake clinics from deceiving women.

Supreme Court Hears Fake Abortion Clinic Case

The lawsuit, brought by The National Institute of Family and Life Advocates, arises from the California Reproductive FACT Act. The law, which was passed in 2015, requires that health-care centers post notices telling women about free or low-cost health services, including abortions, prenatal care, and contraception.

At issue in the case is an additional requirement: that unlicensed healthcare centers add language to their ads indicating that they are not licensed medical facilities and cannot provide medical care. This provision prevents crisis pregnancy centers, which provide inaccurate medical information and which may lie about offering abortion services, from masquerading as abortion clinics in California.

NIFLA sued California in 2016, alleging that the legislation violated their First Amendment rights. Two lower courts sided with the state. After hearing oral arguments today, the Court should publish its opinion in June.

The Problem With Fake Abortion Clinics

Crisis pregnancy centers contend that they help women by providing counseling services. Yet these services often depend on lying to women. Some fake clinics continually promise to offer an abortion in a day, a week, or a month, until a woman can no longer get a legal abortion.

Because these facilities are not real clinics, they are not governed by HIPAA regulations. Some clinics stalk women after the women leave the clinic. Others publicize private information they were able to obtain under the guise of being a medical provider. These clinics often receive taxpayer funds. In some cases, Republican legislators have diverted funding away from safety net programs and into the coffers of fake clinics.

Is There a First Amendment Right to Pretend to Be a Medical Provider?

California argues that the only women who would be deterred by the legislation are women seeking a medical provider. NIFLA counters that it has a First Amendment right to lie to women and to pretend to provide medical services.

States have long regulated medical providers, including by deciding who gets to call themselves a healthcare provider. So it seems unlikely that the Court will rule in NIFLA’s favor. If it does, the ruling could have an unforeseen effect on anti-abortion legislation.

States across the country have been systematically passing legislation telling abortion doctors what they can and can’t say to their patients. In some cases, the legislation has required doctors to lie to women, giving them inaccurate information about fetal development, the risks of abortion, and the mental health effects of seeking an abortion.

If the Court finds California’s law unconstitutional, it seems likely that other state legislation telling providers what they must say to women is also unconstitutional.

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Can Anti-Choicers Pretend to Be Medical Providers? SCOTUS to Hear Fake Clinic Case

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