1/2/2013 - January 2013 SLI Educational Update - Crisis Pregnancy Centers Beware
AN EDUCATIONAL UPDATE FROM
THE SOUTHEAST LAW INSTITUTE™, INC.
To: SLI Supporters
Date: January 2013
From: A. Eric Johnston
Re: Crisis Pregnancy Centers Beware
For many years abortion clinics have viewed crisis pregnancy centers as competitors. Abortion clinics are in the business of making a profit and crisis pregnancy centers can effectively decrease that profit as a result of women choosing not to have an abortion. In the realm of First Amendment free speech protections, these two types of entities are juxtapositioned for different types of speech, but on the same issue.
Typically, a city will pass a local ordinance requiring crisis pregnancy centers within their jurisdiction to post on their premises obvious notices that may say things like “we have no doctor,” “there is no medical professional on staff,” “we do not refer for abortion,” and similar. The passing of such ordinances are usually at the insistence of abortion advocates. The ordinances are normally local, because local laws can be more easily passed and because abortion clinics are located in populated municipal areas. For Alabama, you might expect to see an ordinance from cities like Mobile, Montgomery, Birmingham or Huntsville. To date, we are not aware of any such ordinances being passed. However, ordinances have been passed by a number of other cities and are being litigated, even at the intermediate federal court level. There appears to be a resurgence of these ordinances, so crisis pregnancy centers must be aware of the politics in their local areas.
The problem with these ordinances is they impede the ability of crisis pregnancy centers to freely communicate with women who come there for advice. Notices dampen the relationship and even result in women turning away. After all, if you walk into a medical clinic and you see all sorts of warning signs of compelled government speech, it may give you concern about the facility.
Some abortion clinics claim they are “nonprofit,” though they charge for their services, and fit into the same category as crisis pregnancy centers. Or, abortion advocates compare crisis pregnancy centers to abortion clinics saying that they both are providing medical services. In Ohio, for example, abortion clinics are required to post signs that say something to the effect that “you may not be coerced into having an abortion.” If this can be required for an abortion clinic, they say, then why cannot the government require the crisis pregnancy center to post a statement that they have no medical personnel? Both should be treated the same.
The legal dispute centers on whether the speech at a crisis pregnancy center is commercial or private speech. There is a significant distinction in constitutional law on what kind of speech is permitted under these two circumstances. To date, most courts have held the speech at crisis pregnancy centers is private speech and therefore no restriction. The primary difference is that the crisis pregnancy center is not a commercial enterprise. It is done as a public service. It is a nonprofit organization supported by individuals, churches and others. Most of the workers are volunteers. If operated properly, the crisis pregnancy centers should not give medical advice, and if they wish to do so, they should have a medical professional of the proper expertise on staff or available.
The proper legal standard for determining whether a crisis pregnancy center’s speech should be restricted is the strict scrutiny standard. This requires the government to first have a compelling interest in restricting the speech and, then if the compelling interest exists, narrowly tailoring the restriction. If crisis pregnancy centers do not give medical advice, then there is no government interest. Even assuming the government believes there is a compelling interest, how would it achieve the regulation in the most narrow way? That would be through education, and not compelling private speech. If government is interested in educating the public on the issue, then it should provide fair and balanced information about abortion as well as alternatives to abortion. However, we really do not expect any local government to do that. That is why we are writing this Update as a reminder to crisis pregnancy centers to be on guard for cities improperly restricting speech in their local areas.
Advocates of restricting speech also suggest crisis pregnancy centers need informed consent laws like those required of abortion clinics. Again, the most basic distinction is that one provides a medical service while the other does not. One activity results in taking a life by a medical procedure. The other results in saving a life through discussion. Additionally, abortion clinics are notoriously below standard in the provision of healthcare services. That is why Alabama has its Woman’s Right to Know Act and why we have written the Women’s Health and Safety Act for consideration by the Legislature in its 2013 session. These are prompted by many closures of abortion clinics through the years and one in recent months. With a history of substandard healthcare for women, abortion clinics must be “required” to provide basic informed consent information to them.
We are very grateful for the thousands of hours of volunteer work done by crisis pregnancy centers. We know they turn many women away from making the horrendous decision of taking the lives of their unborn children. We encourage crisis pregnancy centers in their work. If we can ever be of assistance to them in anyway, we are pleased to do so. If there are any questions about this issue, please call us at anytime.
 There are other laws that relate to this and we encourage crisis pregnancy centers to contact us if this is a question.
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