By Susannah Baruch and Carmel Shachar
Originally published on Slate on November 27, 2023
Earlier this month, voters in a number of states once again made it clear that they want people to be able to access abortion care when they need it. Ohio adopted a pro-choice stance after it became the seventh state since the Dobbs ruling to ask voters to weigh in by ballot measure. In Kentucky, Gov. Andy Beshear won reelection in part by focusing on his opponent’s anti-abortion position. Polling shows that most Americans want abortion to be legal in the first trimester, want abortion medications to be accessible, and do not think abortion is immoral. A poll released on Monday found that 55 percent of respondents, a record number, believe that a pregnant woman should be legally able to obtain an abortion for any reason.
But even when voters choose to protect abortion, people can be thwarted in their efforts to get the care they need. “Crisis pregnancy centers” are a highly effective tool that anti-abortion groups use, even in blue states such as Massachusetts, to prevent people from making informed decisions and receiving quality maternal care.
CPCs often present themselves as health care clinics offering reproductive care. But that is a lie. At a time when reproductive health access is in crisis, CPCs, pretending to offer abortion care or information about that care, provide inaccurate medical information. They delay and divert patients from finding medically legitimate care, leading to worse health outcomes. Volunteers in white coats masquerade as clinicians. They tell visitors that abortion can cause mental illness, cancer, and infertility or that most pregnancies end in miscarriage, so no need to worry about finding an abortion.
This is a big misinformation business with questionable finances. In half a dozen states, including Ohio, CPCs are at least partially financed by funds from a program—Temporary Assistance for Needy Families—meant to help low-income families with children. In 2023 Texas alone will spend $100 million in taxpayer money to support CPCs. And CPCs, with 3,000 centers active in the United States today, appear to be flourishing, outnumbering abortion clinics 3 to 1.
In much of the country, full-service reproductive health care that includes abortion care is increasingly hard to come by. Nor is there adequate prenatal care and support, particularly for low-income and marginalized groups, and especially for Black women. These gaps drive people to CPCs, which target vulnerable populations, putting themselves forward as providers of low-cost, accessible “health care.” And post-Dobbs, more people are seeking ultrasounds to date a pregnancy or confirm that abortion pills have worked, which results in even more people ending up in CPCs for free services.
Some states have tried to make CPCs disclose that they are not licensed medical facilities or providing medical care. But in 2018, the Supreme Court concluded that a California law requiring unlicensed centers to make it clear that they don’t provide medical care violates the First Amendment. This one case undercut most legislation related to CPCs.
But we believe that legal tools can still limit the impact of CPCs. And that lawmakers and legal professionals have an obligation to think creatively to ensure that patients are not deceived by CPCs.
States where access to abortion is not restricted should focus on regulating the unauthorized practice of medicine, to limit CPCs’ most harmful practices. Practicing medicine without a license is illegal in all states and usually carries a penalty of one to eight years in prison. States can additionally make CPCs meet the same standards as medical clinics, increasing their costs and making it more difficult to provide deceptive, low-quality services. For example, bills in New Jersey and Arizona would require ultrasounds conducted at CPCs to be performed only by licensed physicians. States could also hold CPCs to the same data-privacy standards HIPAA imposes on medical providers.
And to eliminate bad care, states can place legal limits on the “services” provided by CPCs. Colorado recently enacted a law classifying the provision of what the anti-abortion movement calls “abortion reversal” pills—which do not work and are dangerous—as unprofessional conduct.
In states hostile to abortion access, reproductive health advocates should look to torts and civil lawsuits as tools to limit the most harmful practices of CPCs. Tort claims do not require prosecutors or other government actors to be involved. Battery claims, for example, arise when someone is intentionally touched without consent in a way that is objectively harmful or offensive. Thus, a woman who received a physical exam or ultrasound from an untrained CPC volunteer under the mistaken impression that she was receiving medical care from a licensed professional might have a case for battery. In one instance, a clinic provided a trans-vaginal ultrasound using expired disinfectant—a disinfectant not intended for that use. Surely such practices would meet the legal definition of battery and should make a CPC liable for medical malpractice.
Misleading people into thinking they are getting a medical service is unacceptable, especially when bad maternal health outcomes are at a crisis level, and even more so in marginalized communities. Let’s experiment with some states that are treating CPCs as health clinics and force them to comply with medical norms and requirements. In other states, let’s help those who have been harmed by CPC services sue for battery and other civil claims. Winning at the ballot box is not enough—we need these legal approaches to help unmask CPCs and protect people from harm.