By a 5-4 vote, the U.S. Supreme Court has ruled in favor of the National Institute of Family and Life Advocates (NIFLA) in a lawsuit against a California law aimed at what pro-choice activists have dubbed "fake clinics" — facilities that seem to be full-service women's health centers but are actually fronts for organizations that push an anti-abortion agenda.
According to NARAL Pro-Choice Colorado, there are more than seventy clinics that fit this description in Colorado, including 29 directly affiliated with NIFLA (click to see the organization's list) — and executive director Karen Middleton sees the Supremes' decision as essentially sanctioning practices she feels are highly problematic.
"I'm not surprised by the ruling," Middleton says, "but I'm very concerned. We've found as we've talked to people in the community that they didn't realize these clinics weren't giving accurate information and were steering women away from all their options. Now that the Supreme Court has okayed that, I feel like it's a green light for them to continue this pattern of deception."
It's important to note that representatives from many of what are also referred to as crisis pregnancy centers, or CPCs, find the term "fake clinics" to be both objectionable and erroneous and deny doing anything to fool women who are expecting. We'll be sharing their views in a future post.
The complaint in this controversy is known as NIFLA v. Becerra, but it was originally titled NIFLA v. Kamala Harris, because the latter, now a United States senator, was then California's attorney general.
The summary about the case on NIFLA's website reads: "In 2015, California passed AB 775, the so-called 'Reproductive FACT Act.' This law mandates that medical pro-life pregnancy centers provide written or digital information to their patients — such as a sign in the waiting room — on how to obtain a state-funded abortion. This means that nonprofit pro-life medical clinics as well as their staff and volunteers are being forced to violate their consciences — an outright violation of their First Amendment rights."
Justice Clarence Thomas, writing for the majority, concurred with this take. In one excerpt, he noted that the FACT Act required that "licensed clinics must provide a government-drafted script about the availability of state-sponsored services, as well as contact information for how to obtain them. One of those services is abortion — the very practice that petitioners are devoted to opposing. By requiring petitioners to inform women how they can obtain state-subsidized abortions — at the same time petitioners try to dissuade women from choosing that option — the licensed notice plainly 'alters the content' of petitioners’ speech."
The four justices who constitute what's commonly characterized as the court's liberal bloc disagreed with Thomas — but the conservatives won the day thanks to the support of Justice Neil Gorsuch, a Coloradan who was nominated by President Donald Trump last year. Despite Gorsuch's Colorado background, the local NARAL branch opposed the pick for reasons that Middleton believes are now clear.
"It's not just his ruling in this case, but in every other harmful decision we've seen coming from the court, including the one about the travel ban," she says. "We know Roe v. Wade," the 1973 ruling that legalized abortion in this country, "has yet to be challenged in the court. But there are cases working their way through the circuit that have us concerned. Gorsuch is such a hard-line conservative, and he's in a position to negatively impact women's lives for decades to come. I'm very worried about it."
In the meantime, crisis pregnancy centers could soon experience a windfall; a Department of Health and Human Services proposal that critics refer to as the Trump abortion gag rule calls for CPCs to receive Title X federal funding. Right now, such centers aren't getting money from Colorado sources, and Middleton wants things to stay that way.
"I would hope Colorado wouldn't go in that direction," she says. "We've been talking to legislators about the role these centers play — and every time an anti-choice bill is run, the room is filled by people who work and volunteer at these centers. But I do think public information about them is on the rise because of the Supreme Court case. And we need to let our community members know what these centers offer and what they do not."
To Middleton, clinics are engaging in subterfuge "if you don't know what they provide when you walk in. A woman may think they're going to get information about the full range of options, including abortion services. But many centers have no medical expertise whatsoever, and even those that do won't provide a full range of women's health-care services."
Many CPCs "are located where there are very limited options," such as rural areas, Middleton continues. "We also see them being very active in schools, bringing abstinence-only education, and active on college campuses, where they can be really confusing for young people looking for services. There's a real women's resource center in Greeley and then a fake clinic down the street that has a similar name — so students don't know which one they're going to. That's the kind of deceptive practice the California law was trying to get at, and we were grateful that the California legislature passed it as a test — and we were sorry to see the outcome under the Supreme Court's decision."
Not that Middleton is ready to raise the white flag. In her words, "We will continue fighting back — against fake women’s health centers, against Trump’s judicial nominees, against the lawless, cruel actions of the Trump administration and against the slew of anti-woman, anti-choice bills in our legislatures and Congress."