cpcs, nifla, & scotus

image via exposefakeclinics.com

Although, as the Communist Manifesto observes, "The executive of the modern state is but a committee for managing the common affairs of the whole bourgeoisie," the conflicts within the ruling class and the pressure of activism have at times created opportunities for the state or its branches to intervene on the side of the people.  In the past, for instance, laws have provided and the Supreme Court has affirmed the right to equal education and accommodation, to voting rights, to access to contraception and abortion care.

 

At present, of course, things are different.  In an interview on Truthout,  Saqib Bhatti, co-director of the ActionCenter on Race and the Economy (ACRE), answers the title question of Whose Agenda is the SupremeCourt Carrying Out?  by pointing to “the corporate class” and “white supremacists.”  In recent decisions the Court has upheld Trump’s Muslim ban, taken away fair-share fees from public sector unions, and ruled that crisis pregnancy centers can lie to people. 

It’s the last of those decisions I want to give a bit more attention today.   It reflects longstanding organizing by the patriarchal religious right, and it is also racist and a gift to capital power.

The case is NIFLA vs Becerra.  NIFLA is the National Institute of Family and Life Advocates, an anti-abortion legal group that provides legal services and advocacy for what are known as Crisis Pregnancy Centers, anti-abortion counseling centers that usually present themselves deceptively as fake health-care clinics.  Their goal is to intervene with those who might be considering terminating a pregnancy and to persuade them instead to give birth.  In pursuing that goal, CPCs will usually not only advertise themselves deceptively, but often provide misinformation, anti-choice propaganda, and shaming and intimidation.

The religious right typically believes that sex for pleasure without procreation is wrong.  They fear the possibility of losing the private, caring labor that mothers and other women have historically provided, because they see no larger framework for communal care and social provisioning.  

 

Thus, right wing groups in Oregon are hoping to put on the November ballot a measure to amend the state constitution to ban using public funds for health insurance that covers abortion.

 

Typically, CPCs offer free pregnancy testing (the sort of thing you could find yourself at a pharmacy)  and sometimes they offer ultrasounds—especially in states where an ultrasound is now required before an abortion.  Sometimes these centers provide referrals to social service agencies or themselves offer some things like free baby clothing. 

But a series of investigations reveal that they also frequently lie about the dangers of abortion, suggesting it will lead to cancer, sterility, mental illness—none of which is true—in fact abortion is one of the safest medical procedures.  It's far safer than carrying a pregnancy to term, but fake clinics won't provide information about the dangers of pregnancy, or the fact that  “childbirth is 14 times more likely than abortion to result in” the pregnant person's death. 

These fake clinics may lie about the gestational age of a fetus or the likelihood of miscarriage or the laws on reproductive care, all in an effort to delay action until it is too late for a pregnancy to be terminated. They may lie about the possibility that the birth of a child will change an abusive partner into one who is not abusive.  They may lie about the effectiveness of contraception in protecting against pregnancy or sexually-transmitted diseases.  All such lies can of course be dangerous to health.  "Information-related delays in qualified healthcare negatively affect [not only] women seeking to terminate their pregnancies [but also] women carrying their pregnancies to term, with delays in qualified prenatal care causing life-long health problems for infants.”

Moreover, these fake clinics are often targeted at low-income women and women of color, who are at greater risk of maternal mortality and morbidity when they do give birth.  And these centers are five times more numerous than are clinics that actually provide abortions.  

But these fake clinics have had support from lawmakers, who in some states have provided public funding for them or have mandated they be included among the referrals provided to those who are pregnant.

In response, a number of jurisdictions have passed laws that prevent misleading advertising and that require CPCs to disclose the limited nature of the services they actually provide.  Becerra is the attorney general of the state of California, which in 2015 passed the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act. California’s FACT Act required unlicensed centers to post notice of their unlicensed status, and required licenced centers to post visible notices that free or low-cost abortion, contraception, and prenatal care are available to low-income women through public programs, and to provide the phone number for more information.

NIFLA challenged the act on the grounds that it violated the right to free speech in some way that is not true of laws requiring doctors to tell pregnant people that their "unborn child is a whole human life that was a human life at conception."  The so-called informed consent laws requiring such a statement—that one’s from Missouri—were upheld in the Supreme Court’s 1992 decision in Planned Parenthood v Casey, which held they did not violate the first amendment (even though currently some of them  may be unfounded and unscientific, like that one from Missouri).

Clarence Thomas’s argument for the Supreme Court’s majority decision suggests that it’s okay to allow the fake clinics to lie because they aren’t really providing medical services, wheras real clinics that do provide medical services can be compelled to provide scripted information (even dubious information). 

But  as Justice Breyer notes in his dissent,  “If a State can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking  prenatal care or other reproductive healthcare about childbirth and abortion services?"

Breyer’s dissenting opinion, in which he is joined by the three women on the court, Ginsberg, Sotomayor, and Kagan, dissects in legal detail the many problems with the majority opinion. 

Aside from the problems a layperson might notice, Breyer also points out that the grounding Thomas provides for the majority opinion not only ignores information provided to the court, draws on less-than-relevant case law while ignoring more relevant precedent, and rests on distinctions that lack “moral, practical, and legal force.”  The majority’s approach also, Breyer notes, “in suggesting that heightened scrutiny applies to much economic and social legislation,” places “ordinary disclosure laws” and “much securities law or consumer protection law at constitutional risk,” and “at the least threatens considerable litigation over the constitutional validity of much, perhaps most, government regulation.”

That is, like Citzens United and debates on college campuses, this decision is part of the right-wing project of weaponizing the notion of free speech against the interests of the vulnerable majority.
The decision not only makes it legal for these fake clinics to lie to their clients, it also sets up a ruling that may lead to challenge and overruling of other laws that require companies provide customers with adequate and truthful information.

Imani Gandy at ReWire suggests one place that invitation to litigation is likely to show up soon is in right-wing challenges to attempts at banning so-called conversion therapy—since it's no more deceptive to say that beating a kid will make them not be gay than it is to say that an abortion will give you breast cancer.  Neither is true, but those currently in power don’t seem to think these lies should be illegal.   

In short, and not surprisingly at this point, although California may and should come back with a rewritten FACT Act, we can’t rely only on the legal system to address the problem of fake clinics and women’s needs for reproductive care.

Fortunately, there are informational and activist resources available online. 

The site “expose fake clinics dot com”  has a wealth of resources including a database of fake clinics, organized by state—and the listing includes some in Portland and the surrounding area.  The activists who made the site propose providing Yelp reviews for local fake clinics, alerting Yelp users to the real scoop.  The site “ReproAction dot org” has more suggestions about what to do about fake clinics in your area; they offer a webinar and a direct action toolkit for organizing protests at fake clinics, speak-outs and teach-ins involving those who have been victimized by these groups, and getting the word out through letters to the editor, op-eds, and petitions for investigation into use of public funds. 

Some folks with the local feminist caucus of the Demoratic Socialists of America have taken an interest in this issue, so that would also be a place to find out more and connect with others interested in exposing fake clinics.

It's probably not a bad idea to learn menstrual extraction and other useful skills, but perhaps that's a discussion for another day.