SAN FRANCISCO (CN) — The Ninth Circuit on Tuesday upheld a San Francisco law prohibiting anti-abortion centers from misleading pregnant women into believing that the centers provide abortions: the first such law in the nation.
In affirming, a three-judge panel found that San Francisco’s Pregnancy Information Disclosure and Protection Ordinance is constitutional and not preempted by California’s false advertising law.
“The ordinance merely seeks to prevent LSPCs [limited services pregnancy centers] from harming women through false or misleading speech about their services and in no way restricts those entities from expressing their views about abortion to the public or their clients,” Senior U.S. Circuit Judge Dorothy Nelson wrote for the court.
First Resort Inc., an anti-abortion nonprofit that operates an LSPC, also known as a crisis pregnancy center, in San Francisco under the name SupportCircle, sued the city in 2011. It claimed the law violated its right to free speech and to the same protections as clinics that offer abortions.
The law prohibits anti-abortion clinics from making false or misleading statements that they offer abortions, emergency contraception, or referrals to abortion providers, and fines them if they do so.
The group, which provides pregnancy services such as ultrasounds and prenatal care, advertised its services on Google’s Adwords, so that when certain keyword combinations, such as “San Francisco” and “abortion” or “emergency contraception” were searched, First Resort’s website appeared as an advertisement above the search results.
Although First Resort's website implied that the group offered abortion-related services, it did not state on its website or in its advertising that it did not actually provide them.
A 2007 congressional report examining false and misleading advertising by crisis pregnancy centers found that some of them did not give patients accurate medical information, and that most of them lied to patients about the medical consequences of abortion to scare them away from having one, according to the Ninth Circuit’s 41-page opinion.
While it is unclear whether the centers still employ those practices, patients have been told that abortion can cause breast cancer and infertility, statements that are medically inaccurate, according to Planned Parenthood Affiliates of Northern California Chief Legal Counsel Beth Parker.
San Francisco countered that false and misleading advertising by groups like First Resort harms women by delaying abortions or the use of emergency contraception. A delay in scheduling an abortion during an initial clinic visit decreases the chance of having one, and a delay of even a few hours in obtaining emergency contraception can result in pregnancy, the city said. Its ordinance is aimed at indigent women “facing unexpected pregnancies.”
“False and misleading advertising by these clinics is a deceitful practice that preys on women when they least suspect it,” San Francisco City Attorney Dennis Herrera said in an email Tuesday. He was a defendant, along with San Francisco and its Board of Supervisors. “These groups are entitled to be advocates, but they’re not entitled to break the law,” Herrera added.
Slamming First Resort’s advertising as an attempt to draw “abortion-minded” women to its center, U.S. District Judge Saundra Brown Armstrong dismissed the lawsuit in 2015, finding that the San Francisco ordinance regulates only false and misleading advertising and does not violate First Resort’s rights to free speech and equal protection.