Pro-life pregnancy centers across the country offer free ultrasounds, parenting classes, car seats, diapers, baby clothes, job training, housing, and other resources to pregnant women and families in need. But a new movement—led chiefly by state attorneys general—is specifically targeting such centers, claiming these centers are using deceptive marketing practices despite a lack of consumer complaints. Last fall, sixteen state attorneys general wrote an open letter promising to “take numerous actions . . . to mitigate the harmful effects” of pregnancy centers. And several attorneys general have already made good on that promise. Last week, however, a federal court put the brakes on one of those actions, and litigation is still pending in several similar cases around the country.
In Washington, Attorney General Bob Ferguson issued a civil investigative demand to Obria Group, a network of pro-life medical clinics that provide comprehensive and compassionate care, to investigate “possible” deceptive marketing related to abortion pill reversal and “possible” unfair collection and use of consumer data. Abortion pill reversal is an evidence-based treatment with a 64–68% success rate that uses progesterone, a safe and natural hormone, to counteract the effects of the abortion drug mifepristone. The demand letter did not list a single consumer or patient complaint about Obria’s centers, and yet demanded that it produce thirteen years of documentation, including information regarding the identities of its contractors, volunteers, and tax preparers. As a result of the investigation, Obria lost insurance coverage and had to pay seven times more for replacement coverage. Alliance Defending Freedom brought suit against AG Ferguson, and six months later, his office issued an official letter closing the investigation.
On the opposite coast, in New Jersey, Attorney General Matthew Platkin issued a subpoena to First Choice Women’s Resource Centers, a faith-based pregnancy center network that provides medical services. Like the Washington demand, the New Jersey subpoena demands voluminous sensitive documentation—including the identities of First Choice’s donors—without citing a single complaint. Again, Alliance Defending Freedom filed suit and has requested preliminary injunctive relief.
Not to be outdone, New York Attorney General Letitia James filed suit under the state’s false business practices acts against eleven faith-based, pro-life pregnancy centers and a network of affiliated centers. Despite the testimony of mothers like Maranda Halstead, whose baby is alive today because she heard about abortion pill reversal from one of the centers AG James is suing, the state is claiming that using the words “abortion pill reversal” is “false and misleading.” The State is asking for an injunction against the use of the term or reference to the published scientific studies that support it—to censor information and keep women from hearing about this option. Like the subpoenas in other jurisdictions, the State has not identified any alleged injury to any woman from hearing about the option of abortion pill reversal through progesterone treatment.
Alliance Defending Freedom represents the National Institute of Family and Life Advocates and two of its member centers that have made similar statements concerning abortion pill reversal in a pre-enforcement federal lawsuit. Just last week, a federal court issued a preliminary injunction prohibiting AG James from enforcing New York’s consumer protection law against ADF’s clients for their statements concerning abortion pill reversal. The court cited George Orwell’s 1984, explaining that “our Constitution and Constitutional tradition stand against the idea that we need Oceania’s Ministry of Truth.”
Other states have targeted pro-life pregnancy centers with statutes limiting their ability to advertise their services, requiring them to refer patients for abortion, or prohibiting them from providing abortion pill reversal. ADF is currently challenging such statutes in Illinois, Vermont, and Colorado.
These enforcement actions raise a particularly interesting issue of attorney general power. While state attorneys general commonly enforce consumer protection statutes, doing so in the absence of consumer complaints and commercial activity appears to be a new phenomenon. In addition to the well-established First Amendment problems with targeting specific views for discriminatory treatment, unfettered subpoena authority runs afoul of the Fourth Amendment’s fundamental guarantee to be secure “against unreasonable searches and seizures.” Regardless of one’s views on pregnancy centers’ work, Americans across the political spectrum should be concerned when the government wields unbridled authority to harass disfavored viewpoints.
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