Local laws target pro-life pregnancy centers

Two hours into a March 24 meeting, the City Council of Somerville, Mass., reached a surprising item on its agenda: an ordinance targeting pro-life pregnancy centers.

City Councilor-at-Large Kristen Strezo leaned into her microphone as she explained the purpose of the measure, which she sponsored. “This will be an ordinance concerning deceptive advertising practices of limited services pregnancy centers,” she said. “So, against disinformation, which crisis pregnancy centers are known to distribute willingly.”

Strezo clarified that the city did not currently have any limited services pregnancy centers. The ordinance would simply be a preemptive measure in case they ever showed up.  Violating it would carry a possible $300 fine.

The ordinance passed with a unanimous vote from the council, marking one of the latest moves in a yearslong history of pushback in liberal cities and states against pro-life pregnancy centers. (In 2018, the U.S. Supreme Court struck down a California law that required such centers to advertise the availability of free, state-funded abortions.)

“The ordinance does not ban pregnancy centers,” explained Anne O’Connor, vice president of legal affairs at the National Institute of Family and Life Advocates (NIFLA), countering inaccurate local reports. But she pointed out that the Somerville ordinance copies word-for-word part of a law the Connecticut Legislature passed and a Connecticut pregnancy center challenged in 2021 that has limited the speech of pro-life centers in the state.

That law also forbids “limited services pregnancy centers” from spreading “deceptive” information about pregnancy-related services. “The issue is who decides what’s deceptive,” said O’Connor.

Strezo did not respond to a request for clarification regarding what would qualify as “deceptive” information under Somerville’s ordinance.

Because the city has no pregnancy centers, no pro-life center has immediate standing to sue over the ordinance. But questions remain about how it could affect pregnancy centers in nearby cities that might advertise in Somerville or have a mobile unit that travels into the city.

Carolyn McDonnell, staff counsel at Americans United for Life, said attempts to restrict pregnancy centers have been around for years but could increase as state-level tensions grow over abortion. According to reports this week of a leaked draft opinion from the U.S. Supreme Court, the justices appear poised to overturn the 1973 Roe v. Wade decision that established a national right to abortion.

“It’s a very real concern that, as we’re going into a post-Roe world, there may be newer increased threats for pregnancy resource centers,” McDonnell said.

Strezo, the Somerville City Council member, seemed to have national developments in mind when she presented the city ordinance.

“Reproductive justice is under attack nationally and at the state level,” she said. “We are not safe here in Massachusetts, and abortion is healthcare. It’s just that simple.”

While the question of what would qualify as “deceptive” advertising under the Somerville ordinance remains unclear, the Connecticut case offers several examples. During a television interview in 2019, as Connecticut’s Legislature was considering an earlier version of the act, Attorney General William Tong said that advertising materials with language such as “Are you pregnant? Do you want help with your pregnancy? Do you want abortion-related counseling and services?” would be deceptive phrases to women facing unplanned pregnancies. He also gave the example of people “wearing lab coats and people representing themselves as medical professionals” who then don’t offer “the full range of options … including terminating that pregnancy.”

Care Net of New London, Conn., the crisis pregnancy center suing against Connecticut’s law, explained that it and many others in the state have medical personnel who provide medical services. O’Connor said more than 1,200 of NIFLA’s 1,600 member pregnancy centers are “medical facilities with medical directors and medical staff performing free medical services.”

Unlike Somerville’s ordinance, the Connecticut law outlines ways that pregnancy centers may have to remedy any “disinformation,” including by paying for “corrective advertising.” But it does not explicitly define “deceptive advertising.”

Mark Lippelmann, senior counsel for Alliance Defending Freedom, pointed out the chilling effect of that approach. “It’s deceptive in itself to leave such an important word undefined on purpose,” he said. “That’s a deliberate attempt and effort to keep pregnancy centers guessing, to make sure that they err on the side of not speaking and not helping women and unborn children when they have the ability.”

Lisa Maloney, the executive director of the Care Net pregnancy center, said her center updated its brochures and website to avoid the phrasing that the attorney general described as deceptive.

“Those are the kinds of statements that Care Net would want to make,” said Lippelmann, whose firm is representing the pregnancy center. “But those are particular statements that they’re refraining from making because of this law.”

The parties in the case are currently gathering evidence and will have the opportunity to file motions, likely at the beginning of 2023.

Language similar to the Somerville ordinance and Connecticut law also appeared in a San Francisco ordinance passed in 2011. A San Francisco pregnancy center challenged it, but the 9th U.S. Circuit Court of Appeals upheld it in 2017. The U.S. Supreme Court denied the pregnancy center’s petition to review the case, allowing the ruling to stand. McDonnell said other courts will be free to rule differently than the 9th Circuit did in the San Francisco case but could still take that court’s opinion into consideration in future rulings.