By Jon Perr | 19 November 2017
The United States Supreme Court this week announced it would soon hear a major case that could redefine the legal landscape at the critical juncture where abortion rights meet free speech. In National Institute of Life and Family Advocates v. Becerra, the plaintiffs are challenging a California statute regulating so-called “crisis pregnancy centers.”
After concluding that the Golden State’s 200 pregnancy resource centers used “intentionally deceptive advertising and counseling practices that often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care,” the New York Times reported, the legislature in Sacramento required these anti-abortion counseling services to post a notice letting clients know that “free or low cost abortion, contraception and prenatal care are available to low-income women through public programs, and to provide a phone number for more information.” In addition, the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) mandates that all unlicensed centers disclose their lack of accreditation from the state. And that, attorneys for 110 CPCs operated by the faith-based Christian ministry of National Institute of Life and Family Advocates argue, amounts to unconstitutional “compelled speech.”
As it turns out, the claim that California law violates their First Amendment rights is more than a little ironic. After all, across the nation hundreds of new state abortion restrictions doubtless supported by the plaintiffs run roughshod over the freedom of speech by physicians and abortion clinics. That is, while California is mandating that crisis pregnancy centers simply tell women the truth about their services, GOP-led states are demanding that doctors lie to their patients about supposed “fetal pain,” mythical “abortion regret,” nonexistent side-effects, and so much more.
To be sure, the nation’s 3,000-plus crisis pregnancy centers are not in the truth-telling business. As Laura Bassett recently explained:
Faith-based crisis pregnancy centers (CPCs), which vastly outnumber abortion clinics in the United States, rely heavily on misleading or outright lying to women about reproductive health care in order to dissuade them from having abortions. They often masquerade as abortion clinics or licensed medical facilities – sometimes even cloaking their unlicensed staffers in medical garb – in order to attract pregnant women who are weighing their options. And many of these centers receive state money to do so.
But while women visiting some CPCs may be told that “abortion leads to suicide and drug addiction” and that “birth control causes hair loss, memory loss, headaches, weight gain and breast cancer,” there’s one topic they won’t hear about. As 1960s crisis pregnancy center pioneer Robert Pearson once explained:
“We’re just not saying what we don’t do. A car dealer, when he’s advertising, does not list the things his auto won’t do. So why should we say we don’t do abortions?”
Kevin Theriot, senior counsel for the Alliance Defending Freedom, which is representing the California CPCs, defended his clients’ free speech rights by proclaiming, “Information about abortion is just about everywhere, so the government doesn’t need to punish pro-life centers for declining to advertise for the very act they can’t promote.”
Now, the courts have generally been very deferential to the states when it comes to the regulation of “professional speech” by medical personnel and other subject-matter experts. But that is starting to change. Earlier this year, the Supreme Court refused to hear yet another challenge to California’s ban on so-called “gay conversion therapy” it deemed “ineffective and harmful.” In December 2014, the Fourth Circuit of Appeals struck down a North Carolina law requiring doctors to perform mandatory ultrasounds on would-be abortion patients and to describe the image even if the woman looked away or shielded her eyes. By requiring the medically-unnecessary procedure, the 4th Circuit ruled North Carolina had violated abortion providers’ First Amendment rights, declaring “the state cannot commandeer the doctor-patient relationship to compel a physician to express its preference to the patient.” (Ironically, “protecting the doctor-patient relationship” has been a go-to talking point for years in Republican arguments against health care reform.) That standard may explain Judge Dorothy W. Nelson’s assessment of the free speech issues at play in her 9th Circuit Court of Appeals opinion in the National Institute of Life and Family Advocates case:
California has a substantial interest in the health of its citizens, including ensuring that its citizens have access to and adequate information about constitutionally-protected medical services like abortion…
We conclude that the Licensed Notice is narrowly drawn to achieve California’s substantial interests. The Notice informs the reader only of the existence of publicly-funded family-planning services. It does not contain any more speech than necessary, nor does it encourage, suggest, or imply that women should use those state-funded services.
Needless to say, the plaintiffs disagree. But they should be careful about what they wish for. As Hannah Levintova wrote this week in Mother Jones, “by ruling on this case, the Supreme Court may also lay a foundation for advocates of reproductive rights to challenge the anti-choice restrictions on abortion providers’ speech in other states.”
— US Catholic Bishops (@USCCB) September 29, 2017
Consider, for example, this state mandated warning Dr. Willie Parker shared with a patient seeking an abortion in Alabama:
“I’m required by law to tell you that by having an abortion, you can increase your risk of breast cancer. There’s no scientific evidence to support that.”
You read that right. There is no such link between abortion and increased breast cancer risk, yet states including Alabama and Kansas require physicians to essentially commit medical malpractice by declaring there is. When then-Kansas Gov. Sam Brownback signed his state’s harsh new anti-abortion bill in April 2013, he didn’t just write his name on the document. He also inked “Jesus+Mary” and “culture of life” on a law that, among other things, requires doctors to warn their patients that breast cancer is a potential risk of abortion. Of course, there is no such link: the American Cancer Association and the National Cancer Institute concluded that “abortion is not associated with an increase in breast cancer.” As the Guttmacher Institute summed it up earlier this year:
Counseling materials mandated in five states inform women that having an abortion could increase the risk of breast cancer. These requirements do not withstand scientific scrutiny. In 2003, the National Cancer Institute convened a workshop of over 100 of the world’s leading experts on pregnancy and breast cancer risk. After reviewing the available literature, the panel concluded that having an abortion “does not increase a woman’s subsequent risk of developing breast cancer.” Another exhaustive literature review and analysis published in 2004 by a panel convened by the British government came to the same conclusion. This position has been affirmed by both the American Cancer Society and ACOG.
That is hardly the only way in which states impinge on the free speech rights of abortion providers by requiring them to lie to their patients. Guttmacher explained the sinister use of fictions about “fetal pain” as a pretext to restrict abortion:
Thirteen states require that women seeking an abortion be informed that a fetus reacts to pain in the same way an adult or child would. In some of these states, the information is provided only to a woman who is seeking an abortion at 20 weeks LMP [after last menstrual period], whereas in others, the information is provided to any woman seeking an abortion; regardless, it is well before the point in pregnancy supported by the scientific evidence.
All told, Guttmacher warned, at least 10 types of current abortion restrictions “lack a foundation in rigorous scientific evidence.” And as the chart at the top shows, “Three in 10 of all U.S. women of reproductive age live in one of the 17 states with at least five of the types of restrictions that conflict with the science; more than half live in a state with at least two of these types of laws.” A 2016 report from the National Partnership for Women & Families revealed even greater deception. “More than 70 percent of the abortion restrictions introduced in state legislatures so far this year,” the study found, “are based on false information.”
— Ms.FoundationWomen (@msfoundation) March 5, 2016
Now, the Supreme Court has struck down laws like those in Texas which required abortion clinics to meet the same facilities standards as ambulatory surgical centers and which mandated doctors have admitting privileges at nearby hospitals. The 5-3 Court majority concluded, in the words of Justice Stephen Breyer, “We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes.”
Each places a substantial obstacle in the path of women seeking a pre-viability abortion, each constitutes an undue burden on abortion access … and each violates the federal Constitution.
Interestingly, Breyer was joined by Justice Anthony Kennedy, the same Anthony Kennedy who turned to junk science and mythology in his 2007 Gonzales v. Carhart ruling upholding a federal ban on so-called “partial birth abortion.” Reversing the Court’s position on so-called partial birth abortion just seven years after it struck down a similar Nebraska law, Kennedy swept away Justice Breyer’s previous exception “for the preservation of the…health of the mother.” Derisively referring to physicians as “abortion doctors” and with callous disregard for the health of American women, Kennedy in the 5-4 majority opinion decreed that father knows best. (His 2000 dissent in Stenberg v. Carhart used the incendiary term “abortionist” no fewer than 13 times.) As the Washington Post’s Ruth Marcus recalled:
“Respect for human life finds an ultimate expression in the bond of love the mother has for her child,” Kennedy intoned. This is one of those sentences about women’s essential natures that are invariably followed by an explanation of why the right at stake needs to be limited. For the woman’s own good, of course.
Kennedy continues: “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” No reliable data? No problem!
The State has “ethical and moral concerns that justify a special prohibition,” Kennedy argued, because “it is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns” the details of the abortion procedure.
As Marcus suggests, Kennedy’s mantra of “no data, no problem” was never justifiable as a matter of either law or science, and to be sure, is no longer operative. In the intervening decade, a mountain of scientific research has demolished the “abortion regret” myth.
“Abortion regret” is a myth. pic.twitter.com/JvYcrToO0e
— Church and State (@ChurchAndStateN) November 20, 2017
Nevertheless, the party that decries “jackpot justice” and “frivolous lawsuits” is now turning to supposed “abortion regret” to manufacture malpractice claims against OB/GYNs. In February, Vero Beach, Florida, legislator Erin Grall introduced a bill under which “women who are injured or feel emotional distress for up to 10 years after an abortion could sue their doctors under a new proposal being pushed by state lawmakers.” The proposal is similar to a 2014 effort by Iowa Republicans to create a “backdoor abortion ban” by creating new legal dangers for abortion providers:
Under the legislation, a patient could sue a doctor within ten years of terminating a pregnancy, even after signing a form acknowledging informed consent. In addition to suing for physical injury, a patient could sue for emotional distress, which would include a negative emotional or mental reaction, grief, anxiety, or worry.
The bill significantly increases the risk doctors face in providing abortion care in a couple of important ways. First and foremost, it creates an entirely separate legal claim related only to abortions, despite the fact that any patient injured during an abortion can already sue for medical malpractice. Second, it increases to at least ten years the amount of time a patient has to sue, and allows a claim to proceed even if a patient acknowledges that the risks associated with the procedure were explained.
The right-wing intrusions into the free speech rights of doctors and patients extend into both what physicians must and must not say and do. Consider the case of telemedicine. In early 2000, the FDA approved mifepristone for medication-induced abortion. Subsequently, the World Health Organization and the National Abortion Federation stated that midlevel providers, such as physician assistants and advanced practice nurses, can safely provide medication abortion. In 2011, a study published in the journal Obstetrics and Gynecology found that by allowing physicians to remotely supervise administration via video link, the pregnancy-ending drug RU-486 is just as effective and acceptable to patients as a face-to-face office visit. In the first 10 years since its introduction in the United States, more than 1.5 million women used RU-486 to induce abortions. The mortality rate for RU-486 (also known as Mifeprex) is 1 in 100,000; by contrast, Viagra’s is 5 in 100,000. Even the small number of “adverse events” (14 deaths and 612 hospitalizations) could not be confirmed by the FDA to be related to the drug itself, prompting medical ethicist Arthur Caplan to warn that opposition to such medical conferencing has little to do with safety and everything to do with abortion itself:
“Unless these groups have some broader heartburn over the notion of rural areas getting access to doctors by video, I don’t think this is in any way a serious complaint. Clearly we don’t have enough primary care providers. One way to solve this is through telemedicine. We don’t want to be attacking that, we probably want to be celebrating it.”
As it turned out, not so much. Thirty-four states require that only physicians can prescribe the drug, while 19 states prohibit the use of telemedicine to offer it. Whether in person or on-screen, RU 486 is the drug whose name many physicians nationwide dare not speak.
Unless, that is, those physicians want to tell patients their medical abortion can be reversed.
This doctor says he can ”reverse” abortions. https://t.co/HSoUhTEX1G
— Mother Jones (@MotherJones) June 9, 2017
As Mother Jones, the New York Times, Rewire, and others have documented, anti-abortion physician George Delgado has been promoting the notion of reversing medicine-induced abortions since 2009. As Mother Jones explained:
A medication abortion typically involves two drugs. The first, mifepristone, which is administered in a doctor’s office, ends the pregnancy, and the second, misoprostol, which the woman takes at home, expels it from her body.
With medication abortions accounting for one-third of the nation’s 1 million abortions annually by 2014, opponents were powerfully motivated to stop their progress by any means necessary. When Dr. Delgado reported that 4 of 7 abortions were “reversed” by injections of progesterone after the first pill (mifespristone) was administered, the “abortion reversal” movement was underway. Arizona, Arkansas, and South Dakota passed bills requiring doctors to tell patients that “abortion reversal” is possible. While Arizona ultimately repealed its bill due to court challenges, Utah nevertheless went ahead with its own reversal bill in March 2017. As Time noted after Gov. Gary Hebert signed the legislation:
However, the American Congress of Obstetricians and Gynecologists (ACOG) said in a statement that those claims “are not supported by the body of scientific evidence, and this approach is not recommended in ACOG’s clinical guidance on medication abortion.” ACOG added that progesterone is “generally well tolerated [but] can cause significant cardiovascular, nervous system and endocrine adverse reactions as well as other side effects.”
Neither the American Congress of Obstetricians and Gynecologists nor Physicians for Reproductive Health have been silent on the dangers to patients posed by politics trumping sound medical science. After Arizona Gov. Doug Ducey and Arkansas Gov. Asa Hutchison signed abortion reversal laws in the spring of 2016, Dr. John C. Jennings and Dr. Nancy L. Stanwood authored an op-ed warning about “this reckless and dangerous intrusion into the practice of medicine.” Simply put, they argued, “evidence and science must guide the care that patients receive in any area of medicine. When political agendas get in the way of that, patients suffer.”
Legislatures and governors would never presume to tell an oncologist which cancer chemotherapy to prescribe. They would never presume to tell a breast surgeon to do a lumpectomy rather than a mastectomy. They would never presume to tell an endocrinologist how to treat diabetes most effectively. They would never – in any other area of medicine – step into the exam room with a physician and a patient and force the physician to recommend an untested treatment.
And yet, this is what we see time and again when it comes to the physicians who provide women with the medical treatment needed to end a pregnancy. These politicians presume to know better. But they do not and never will.
The sad irony is that the landmark 1973 Roe v. Wade decision legalizing abortion nationwide hinged precisely on the free speech and privacy rights of doctors. “The decision vindicates the right of the physician to administer medical treatment according to his professional judgment,” Justice Harry Blackmun wrote in his controversial opinion. “The abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.” But as Jeffrey Toobin among others explained, “Blackmun’s opinion was as much a defense of physicians’ rights as those of women.” Justice Ruth Bader Ginsburg, who believes women’s reproductive rights should be ground not in privacy arguments but the equal protection clause of the 14th Amendment, lamented:
“Roe isn’t really about the woman’s choice, is it? It’s about the doctor’s freedom to practice … it wasn’t woman-centered, it was physician-centered.”
Forty-four years later, Republicans in Washington and at the state level demand women have no choice at all. Their physicians, the GOP and groups like the Alliance Defending Freedom proclaim, have no First Amendment right to free speech. To prevent their patients from obtaining abortions, providers must not tell the truth about care they know to be safe, dangerous, recommended, or medically unnecessary. As for the so-called “pregnancy resource centers” and crisis pregnancy centers in California, Illinois, New York, and every other state, conservatives insist, they have the right to say whatever they want.
While the Supreme Court is still deciding that issue, it’s business as usual at CPCs like the Attleboro Women’s Health Center in Massachusetts. The friendly home page welcomes with this reassuring message:
If you’re pregnant and wondering how can I get an abortion, visit Attleboro Women’s Health Center. We provide abortion consultations to help you make an informed decision about abortion. Make an appointment to talk about your unique situation, discuss the abortion methods that may be available to you and get answers to any questions you may have. [Emphasis added.]
If you make it through the “About” page, you’ll notice this disclaimer buried in the text: “We do not offer, recommend or refer for abortions or abortifacients, but are committed to offering accurate information about abortion procedures and risks.”
Jon Perr holds a B.A. in Political Science from Rutgers University. He is also a regular contributor at Crooks and Liars and BlueOregon. His writing has also been featured in newspapers, magazines and blogs, including the New York Times, Washington Post, Los Angeles Times, Salon, Slate, Esquire, Vanity Fair, Mother Jones, The Hill, Politico and other leading publications.
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