Planned Parenthood Fights to Protect the FACT Act
Written by PP Action CA Chief Legal Counsel Maggy Krell
A woman seeking reproductive health care walks into what appears to be a medical clinic. There’s a waiting room, sterile white walls, a clipboard with forms, and people dressed in scrubs. When she gets her ultrasound in a back office, the technician wands her stomach, and delivers unexpected news that she is pregnant!
But in actuality, the woman was not in a medical clinic at all — she was inside an anti-abortion advocacy organization designed to promote abstinence and by whatever means necessary, dissuade women from terminating pregnancy. The “technician” lacked a medical license or training and what she thought was a fetus was actually just the woman’s IUD¹.
Known as “Crisis Pregnancy Centers” (CPCs) these places masquerade as medical clinics, lure patients through deceptive advertising, and then dispense inaccurate and harmful information. A study, conducted by NARAL, which included an undercover investigation at CPCs across California, revealed that 70 percent advised patients that abortion increases the risk of breast cancer; 60 percent advised that condoms are ineffective in reducing pregnancy; and 85 percent advised that abortion increases the risk of infertility and “leads to mental health problems.”² None of these claims are scientifically valid³. Specifically, women were told that “condoms have a bunch of little holes you might not know about” and that abortion could “puncture the uterus and close [the] Fallopian tubes.” Pregnant women were told via videos featuring incarcerated women that abortion causes severe depression.
They said you will regret the abortion for the rest of your life. One of the women described her suicide attempt. Many of the women claimed that their abortions caused them to become alcoholics, drugs addicts, and even criminals. One woman said, ‘Having had that abortion turned me into a crack head whore and no one told me this would happen.’⁵
What is The Reproductive Freedom Accountability Comprehensive Care and Transparency Act (FACT):
In response to the spread of deceptive information, but recognizing the CPC’s First Amendment Rights, the California Legislature passed a narrowly drawn law called the Reproductive FACT Act in 2015. The FACT Act requires unlicensed facilities that primarily serve pregnant women and have characteristics associated with licensed medical clinics to provide clients with a one-sentence disclosure of their unlicensed status. Further, the Act requires licensed medical clinics that primarily offer pregnancy or family-planning care to provide notice about eligibility for state-funded programs offering a full range of free and low-cost reproductive health care services including a phone number to obtain such information.
Road to the Supreme Court:
Shortly after taking effect, the constitutionality of the FACT Act was challenged by the National Institute of Family and Life Advocates (NIFLA). They argue that the FACT Act forces pro-life groups to advertise for abortion and thus violates the constitutional right to “speak freely and refrain from speaking at all.”⁶ The Act has been upheld in the District Court and Ninth Circuit Court of Appeals, and is currently pending before the U.S. Supreme Court. The Court has posed the following question: Whether the disclosures required by the California Reproductive FACT Act violate the protections set forth in the Free Speech Clause of the First Amendment, applicable to the States through the Fourteenth Amendment. Attorney General Xavier Becerra is defending the FACT Act, arguing that it meets constitutional standards as a narrowly drawn statute justified by a compelling government interest. Planned Parenthood Affiliates of California is one of several organizations who have submitted an Amicus brief. “Amicus Curiae” translates to “friend of the court” and is a brief submitted by a non-party offering information that will be helpful for the Court’s consideration. In our Amicus Brief, filed on February 27, 2018, we detail the widespread deception used by CPCs, arguing that the FACT Act is a necessary addition to California’s health regulatory scheme. At the heart of our argument is the value of accurate and unbiased medical information at a critical moment in a woman’s life. As the Supreme Court has pointed out “‘[P]eople will perceive their own best interests if only they are well enough informed.’”⁷ Every woman should have the opportunity to make choices about her health care and family planning based on her own value-system, and her options should be defined by medically accurate information.
The case will be argued in the United States Supreme Court on March 20, 2018.⁸
²(Unmasking Fake Clinics: The Truth About Crisis Pregnancy Centers in California (“California CPC Investigation”), NARAL, Pro-Choice California Foundation (2010), available at: https://www.sfcityattorney.org/wp-content/uploads/2015/08/Unmasking-Fake-Clinics-The-Truth-About-Crisis-Pregnancy-Centers-in-California-.pdf )
³Pam Belluck, Pregnancy Center Gain Influence in Anti-Abortion Arena; Susan A. Cohen, Abortion and Mental Health: Myths and Realities, Guttmacher Policy Review, Vol. 9, Issue 3 (Aug. 1, 2006), available at: https://www.guttmacher.org/gpr/2006/08/abortion-and-mental-health-myths-and-realities#boxref1
⁶Petitioner’s brief citing Wooley v. Maynard, 430 U.S. 705, 714 (1977).
⁷Cited in Respondent’s Brief at 1, quoting Sorrell v. IMS Health Inc., 564 U.S. 552, 578 (2011).