The Supreme Court and fake pregnancy clinics

Mark Joseph Stern observes that Supreme Court decisions, although generally covered in isolation, often have compounding effects, as do the other actions of public officials. One very important case is that the Court’s increasingly narrow reading of the Establishment clause and its weaponization of the First Amendment against abortion, combined in some Republican-controlled states with starving real medical clinics of funding, which has helped to divert pregnant patients from real doctors to anti-abortion propaganda mills:

A comprehensive 2022 analysis by The Alliance, which studies state-level access to reproductive care, found that virtually all CPCs give patients false information about pregnancy, abortion, and STIs; refuse to provide or promote contraception, including condoms; and fail to offer any actual prenatal care. Many claim that condoms do not work and that birth control is dangerous, promoting abstinence and “fertility awareness” instead; a large number also promote “abortion reversal,” an unproven, potentially dangerous experimental treatment.
And “keepsake” ultrasounds, like the kind Ray received, serve no diagnostic purpose, yet mislead patients into thinking a real health care professional has assessed their pregnancy.

Reproductive health clinics offer all of these services, including those vital to patients whose pregnancies are wanted. Yet CPCs currently outnumber legitimate clinics by a ratio of more than 3 to 1.

The issues with CPCs go beyond not providing genuine medical care—they pitch and frame their services as medical care even though it is not. Despite this deception, red, purple, and even some blue states don’t regulate or rein in these entities—in fact, many give them public money. Many states, such as Florida and Texas, have simultaneously refused to expand Medicaid under the Affordable Care Act, starving hospitals of the resources needed to maintain legitimate maternity wards. The upshot is that people seeking pregnancy-related health care, including maternal care for wanted pregnancies, frequently wind up at CPCs—which are unable to meet the most basic needs of patients.

[…]

This discriminatory treatment, too, has its roots in a Supreme Court decision: 1991’s Rust v. Sullivan. Every Republican president since Ronald Reagan has withheld Title X funding from providers that so much as mention abortion—unless they oppose it, in which case they can say anything they want. The court upheld that restriction in Rust by a 5–4 vote. As a result, real clinics that support abortion as legitimate health care get no money, even if they do not offer abortion services. Anti-abortion activists, meanwhile, get a windfall of “family planning” funding to use in their battle against abortion.

Throughout the early 2000s, following the success of Florida’s “choose life” plate, more state legislatures got into the business of underwriting CPCs. Between 2012 and 2022, state funding for CPCs increased fivefold, infusing the centers with hundreds of millions of dollars. Some states fund them directly: Pennsylvania, for instance, has sent a total of more than $100 million to these centers, diverting much of this cash away from Temporary Assistance for Needy Families (TANF), a lifeline for impoverished pregnant people and children. Texas now sends $100 million a year to CPCs, and previously diverted $45 million from TANF to CPCs. It’s not just purple and red states, though: As of 2022, California had funded at least nine CPCs by allowing them to bill for services through the state’s Medicaid system.

[…]

In 2015, California tried to tackle the spiraling problem of fake clinics by passing the FACT Act, which would’ve imposed new regulations on CPCs. The law required licensed centers to notify patients about real clinics that provide genuine reproductive care. It also required centers that didn’t have medical licenses to disclose that fact. While drafting the statute, California lawmakers drew on extensive evidence that CPCs engaged in unethical duplicity to trick women out of going to real medical providers and obtaining basic services, including not only abortion, but contraception, STI treatment, and maternity care. California’s elected representatives enacted the FACT Act through the democratic process. Yet the Supreme Court decided the state had no authority to protect its residents against fake health care:  In 2018’s NIFLA v. Becerra, the Supreme Court struck down the law by a 5–4 vote, holding that these disclosure rules violated the First Amendment. According to the conservative majority, James Madison thought free speech meant letting people play dress-up as doctors and lie about their medical credentials.

Four years later, of course, the Supreme Court issued Dobbs, abolishing the constitutional right to abortion. The decision accelerated an alarming trend: As CPCs have multiplied at a dizzying rate in America, abortion clinics and maternity wards have dwindled. The problem is especially acute in red states, whose abortion bans are driving away OB-GYNs who are fearful of receiving a prison sentence for providing obstetric care. Ironically, the states with the most stringent abortion restrictions have also declined to expand Medicaid—a decision they can make only because the Supreme Court let them opt out of Obamacare’s Medicaid expansion.
That decision is hastening the closure of maternity units in red states and depriving millions of pregnant people of affordable insurance—people who may turn to “free” CPCs for lack of any better options.

As Breyer pointed out in his dissent, what is particularly ridiculous about Becerra is that the Court has held since 1992 that it does not violate the First Amendment to force doctors to repeat state-mandated anti-abortion propaganda to patients before they can obtain an abortion:

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? As the question suggests, there is no convincing reason to distinguish between information about adoption and information about abortion in this context. After all, the rule of law embodies evenhandedness, and “what is sauce for the goose is normally sauce for the gander.” 

The majority tries to distinguish Casey as concerning a regulation of professional conduct that only incidentally burdened speech.

Casey, in its view, applies only when obtaining “informed consent” to a medical procedure is directly at issue.

 This distinction, however, lacks moral, practical, and legal force. The individuals at issue here are all medical personnel engaging in activities that directly affect a woman’s health—not significantly different from the doctors at issue in Casey. After all, the statute here applies only to “primary care clinics,” which provide “services for the care and treatment of patients for whom the clinic accepts responsibility.” And the persons responsible for patients at those clinics are all persons “licensed, certified or registered to provide” pregnancy-related medical services. he petitioners have not, either here or in the District Court, provided any example of a covered clinic that is not operated by licensed doctors or what the statute specifies are equivalent professionals. The Act requires these medical professionals to disclose information about the possibility of abortion (including potential financial help) that is as likely helpful to granting “informed consent” as is information about the possibility of adoption and childbirth (including potential financial help). That is why I find it impossible to drive any meaningful legal wedge between the law, as interpreted in Casey, and the law as it should be applied in this case. If the law in Casey regulated speech “only ‘as part of the practice of medicine,’ ” so too here.

he majority contends that the disclosure here is unrelated to a “medical procedure,” unlike that in Casey, and so the State has no reason to inform a woman about alternatives to childbirth (or, presumably, the health risks of childbirth). Really? No one doubts that choosing an abortion is a medical procedure that involves certain health risks. See Whole Woman’s Health v. Hellerstedt, (identifying the mortality rate in Texas as 1 in 120,000 to 144,000 abortions). But the same is true of carrying a child to term and giving birth. That is why prenatal care often involves testing for anemia, infections, measles, chicken pox, genetic disorders, diabetes, pneumonia, urinary tract infections, preeclampsia, and hosts of other medical conditions. Childbirth itself, directly or through pain management, risks harms of various kinds, some connected with caesarean or surgery-related deliveries, some related to more ordinary methods of delivery. Indeed, nationwide “childbirth is 14 times more likely than abortion to result in” the woman’s death. Health considerations do not favor disclosure of alternatives and risks associated with the latter but not those associated with the former.

Meanwhile, Anthony M.A.G.A. Kennedy’s pompous and idiotic concurrence — which accuses California of “authoritarian” behavior although he co-wrote the “state can force doctors to read anti-abortion propaganda” opinon — should serve as a reminder that his strategic retirement was critical to Roe getting overruled.

The really bad news is that this web of interrelated Republican attacks — on privacy and sexual autonomy, religious liberty, and access to healthcare — is only going to accelerate. And let us remember that it’s because of John Roberts inventing a legal doctrine that even he didn’t think was correct and has never been applied again that states like Texas and Florida haven’t expanded Medicaid. The Roberts Court is disastrous on so many levels it’s hard to convey it to the public, which is apparently going to be a them among Stern and his colleagues all week.