New York City has been fighting a long-running battle with anti-abortion crisis pregnancy centers, and today that fight advanced forward another inch. The city wants those CPCs to disclose to their clients that they’re not medical facilities, that they don’t have doctors on staff, that they don’t offer abortions or abortion referrals, and that the New York City Department of Health and Mental Hygiene suggests that if you’re pregnant, or think you might be, you should really see a licensed healthcare provider. In 2011, the New York City Council passed a law requiring CPCs to do all those things. As you might expect, it quickly got messy, legally speaking.
Expectant Mother Care, the crisis pregnancy center chain with 12 locations across New York City, joined by two other crisis pregnancy centers, argued the city’s law violated their rights to freedom of speech and religion. A federal judge agreed and struck down that law, and so the case proceeded to an appeals court.
Today, the United States 2nd Circuit Court of Appeals affirmed that yes, crisis pregnancy centers in New York do need to clarify that if they have an actual medical doctor on staff. But they also ruled in the CPCs’ favor on two other things, namely that forcing CPCs to tell their clients that they don’t provide abortions, abortion referrals, or emergency contraceptions and that the city health department recommends they see a real doctor, would “impermissibly compel speech.”
A little background, before we plunge any further into the legalese: in October 2010, New York City Council Member Jessica Lappin sponsored a bill to regulate CPCs in the manner we’ve described above. The City Council, as well as numerous New York state attorneys general, have long been concerned that because the CPCs are not always very clear about the services they provide, women seeking abortions were ending up at their doors by mistake. According to testimony before the City Council’s Committee on Women’s Issues, CPC workers often did quite a lot to encourage the mistaken impression that they were doctor’s offices. From the 2nd Circuit ruling:
Several people testified as to misleading practices by CPCs. Joan Malin, President and CEO of Planned Parenthood, testified that CPCs are often intentionally located in proximity to Planned Parenthood facilities and that they often use misleading names and signage.
Mariana Banzil, the Executive Director at Dr. Emily Women’s Health Center, testified about a particular CPC that would park a bus in front of her clinic, from which the CPC’s counselors, often wearing scrubs, would offer ultrasounds, harass Center patients, tell patients that the Center was closed, or identify themselves as Center workers.
Another OB-GYN, Dr. Anne R. Davis, said that one of her patients initially went to a CPC, where workers said they weren’t sure about how far along her pregnancy was. They performed ultrasound after ultrasound, spanning a period of weeks. The patient’s pregnancy progressed into the third trimester, and the woman was unable to have the abortion she desired. Davis later found that one simple abdominal ultrasound would have “dated her pregnancy easily,” adding, “The CPC had no medical reasons for keeping her waiting.”
When the Voice visited Expectant Mother Care’s downtown Brooklyn location this summer, I noticed that that it’s located a couple floors above a Planned Parenthood. A security guard at the Planned Parenthood told me that the woman who manages that CPC had encouraged him to divert PP’s patients away from the clinic and send them to her instead. EMC also has a sign on their door that says they are “affiliated with SUNY Downstate,” a hospital. That suggests that they have medical providers on staff; in fact, as EMC founder Chris Slattery told me, a doctor from SUNY Downstate would come in once a week on a volunteer basis to provide prenatal care and supervise ultrasounds. (SUNY Downstate was unable to confirm that arrangement.)
EMC’s lawyers at the American Center for Law and Justice, a sort of ultra-right wing answer to the American Civil Liberties Union, argued that the entire law was impermissibly vague and should be struck down. But today, the appeals court decided that it’s not overly vague to require CPCs to disclose if there are doctors on staff. They also ruled, though, that the CPCs have a “substantial likelihood of success” when it comes to the provision requiring them to disclose they don’t provide abortions, etc., and the requirement that they post a sign regarding the health department’s recommendation.
The case will now revert back to a lower count for more legal wrangling. In the meantime, both sides are declaring victory. NARAL Pro-Choice New York issued a statement calling the ruling a “crucial step toward eliminating dangers CPCs pose to women’s health.”
NARAL President Andrea Miller referred to a report issued by the organization on CPCs and called them “sham medical establishments” that manipulate women. She added:
A pregnant woman deserves and has the right to know whether the person posing as her medical provider is actually just an anti-choice activist wearing a white lab coat. That’s why the 2nd Circuit’s decision today – which upheld the City’s requirement that crisis pregnancy centers disclose whether they have a licensed medical provider on staff – is a crucial step toward ending the dangers that these centers pose to pregnant women. We look forward to the City moving forward to implement this important protection.
Meanwhile, over on anti-abortion site LifeNews, the Alliance Defending Freedom, the legal outfit representing the two other crisis pregnancy centers and a “maternity home,” issued an article/press release implying that the entire law had been struck down.
Alliance Defending Freedom’s Senior Legal Counsel, Matt Bowman, wrote that “pro-life pregnancy centers” like his clients “offer free help and hope to women and their preborn children, shouldn’t be punished by political allies of the abortion industry. He added, “The appeals court rightly affirmed that the city cannot force pregnancy centers to communicate some city-crafted messages that encourage women to go elsewhere, but the court left one provision in place that still does that.”
Bowman calls the admitting-you-don’t-have-doctors provision “not constitutional,” and adds, “[W]e are considering our options for appeal regarding the remaining provision of New York City’s ordinance.”
The full ruling from the appeals court is on the following page.