Last summer, in its first major abortion-related decision since Whole Woman’s Health v. Hellerstedt in 2016, the Supreme Court offered an opinion siding with anti-abortion fake clinics in the case of NIFLA v. Becerra [1]. In its opinion, the court ruled against the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act), which required anti-abortion fake clinics (sometimes referred to as crisis pregnancy centers), to disclose whether they are licensed health care providers (many aren’t), and remind patients that Californians are legally entitled to state-funded abortion services elsewhere.

At the time, anti-abortion activists recognized the ruling as a unilateral victory. Yet, they did not consider how their own laws involving mandatory counseling raise conversations about compelled speech, especially where their laws imposing deceitful ‘abortion pill reversal’ counseling are concerned [2]. A recent lawsuit in North Dakota against a law requiring abortion providers to tell patients about the scientifically unproven and unethical abortion pill reversal practice certainly highlights a double standard in what is treated as compelled speech for predatory fake clinics and anti-abortion activists, and reproductive health care providers [3, 4]. 

After all, if the Supreme Court deemed the state of California could not “compel” fake clinics to “speak a particular message” [1], or in other words, require them to be transparent about their true function and motives, why should it be legal to require doctors and abortion providers in North Dakota to lie to patients that their medication abortions can be reversed? (For reference, so-called abortion pill reversal refers to an untested and unethical experimental method invented by anti-abortion extremist physicians to allegedly “reverse” the effects of medication abortion, though it’s not clear what they’re doing produces results any different than what would happen if a person took the first round of medication but not the second. You can read more about Reproaction’s work on the pro-life movement’s abortion reversal deception campaign here.) 

The 2018 NIFLA case and recent North Dakota lawsuit highlight a deep hypocrisy that underlies the anti-abortion movement’s self-serving and ideologically inconsistent definition of what constitutes the right to free speech.

Anti-abortion activists have a long history of defending their tactics of spreading deception, sex and abortion stigma, and dangerous interpretations of reproductive and sexual health in the name of free speech. It’s not just the NIFLA lawsuit: Over the past few months, states like California, Oregon, Washington, and others have been forced to challenge the Trump administration over its cruel domestic gag rule. This rule has stripped organizations that offer abortion services or referrals of crucial Title X funding, which is intended to cover contraception, breast and cervical cancer screenings, health education, sexually transmitted infection testing, and more.  According to some estimates, Title X funding helps prevent one million unwanted pregnancies annually [5].

But Title X funding was never paying for abortion, anyway. In other words, more than anything, the new, hateful Trump domestic gag rule is about using Title X funds to control and censor reproductive health providers’ speech, and prioritize a dangerous, anti-woman political agenda over real women’s lives and safety. Most recently, early in July, the Ninth Circuit Court of Appeals issued a ruling permitting the gag rule to take effect, and the Trump administration announced its plans to immediately enforce it just over a week later. [6, 7] As of the end of August, Planned Parenthood announced it would withdraw from Title X rather than cease to offer abortion services and referrals — a laudable move when faced with the Trump administration’s cruel and unreasonable obsession with restricting abortion. [8]

Ironically, despite a federal policy that quite literally censors abortion and reproductive health providers across the country, supposedly pro-life clinics and activists are often the ones who loudly complain about so-called speech concerns — as they did in their arguments in the NIFLA lawsuit, and routinely do via tone-deaf social media campaigns, which Reproaction campaign coordinator Kieran Mailman wrote about at length here. 

Under the domestic gag rule, reproductive health providers could lose the ability to offer care — or information about health care — that respects the dignity and autonomy of women and people who can become pregnant. In sharp contrast, anti-abortion fake clinics — which receive taxpayer funding in some states [9] — attract women experiencing unwanted pregnancies through misleading advertisements that are often designed to suggest they offer abortion care, or with the promise of free ultrasounds. These fake clinics then subject their visitors to deceptive anti-abortion counseling, propaganda, and intimidation to dissuade them from having abortions, without disclosing if they are even legitimate health care providers, or letting patients know they could receive actual reproductive health care elsewhere.

And it’s not just fake clinics that the anti-abortion movement has used to freely and shamelessly spread its dangerous lies, or effectively censor doctors and health care providers from spreading accurate information and resources. Just 24 states require sexual health education to be taught in public schools, [10] and of those 24, only 13 require sex education to be medically accurate [11]. In several documented cases, public school sex education has been used as a platform to spread slut-shaming, anti-abortion rhetoric to grade school students. 

As of early 2019, Ohio has introduced legislation previously passed in Oklahoma and currently pending in Ohio’s House Committee that would require anti-abortion narratives to be taught in public school sex education. [12] This curriculum is intended to blur the scientific facts about pregnancy, prohibit teachers and staff from referring students to information on family planning and abortion providers, and bar the participation and input of comprehensive reproductive health care providers.

North Dakota’s law mandating abortion pill reversal counseling by clinicians is only the most recent state law to do so, joining Arizona, Arkansas, Utah, and Idaho. On top of being dangerous, unethical, and founded on anti-abortion stigma, these laws also highlight the double standards and anti-science and anti-medicine views employed by the pro-life movement and its lawmakers, as they argue their fake clinics shouldn’t have to provide medically accurate information while forcing actual medical providers to share ideologically motivated speech lacking basis in medical standards. Like many of its arguments, the pro-life movement’s self-serving definition of free speech has always been rooted in its ultimate aim to exert power and control over women — and recent legal conflicts have made this clearer than ever.

Sources:

1. https://www.supremecourt.gov/opinions/17pdf/16-1140_5368.pdf
2. https://slate.com/news-and-politics/2018/03/in-nifla-v-becerra-the-supreme-court-looks-at-crisis-pregnancy-centers.html
3. https://www.nbcnews.com/news/us-news/american-medical-association-sues-after-north-dakota-passes-abortion-reversal-n1025861
4. https://www.washingtonpost.com/health/2019/07/02/medication-abortions-cant-be-reversed-law-forcing-doctors-say-they-can-be-is-headed-court/?utm_term=.5b420c9a36d2
5. https://www.plannedparenthoodaction.org/issues/health-care-equity/title-x
6. https://theslot.jezebel.com/trumps-domestic-gag-rule-can-go-into-effect-1836284479
7. https://thehill.com/policy/healthcare/453203-trump-administration-begins-formally-enforcing-new-abortion-restrictions
8. https://www.harpersbazaar.com/culture/politics/a28773428/what-planned-parenthood-title-x-means-for-you/
9. https://rewire.news/article/2018/02/16/state-level-republicans-pour-taxpayer-money-fake-clinics-unprecedented-pace/
10. https://www.the74million.org/article/just-24-states-mandate-sex-education-for-k-12-students-and-only-9-require-any-discussion-of-consent-see-how-your-state-stacks-up/
11. https://www.guttmacher.org/state-policy/explore/sex-and-hiv-education
12. https://www.huffpost.com/entry/ohio-anti-abortion-curriculum-bill_n_5d239e8ee4b0cf2ac68b8f05