NY attorney general fights ‘abortion pill reversal’ ruling in Second Circuit

MANHATTAN (CN) — New York Attorney General Letitia James told the Second Circuit on Tuesday that she should be allowed to continue litigating against anti-abortion groups touting controversial “abortion pill reversal” treatments.

James sued Heartbeat International and 11 anti-abortion pregnancy centers last spring. She accused them of fraud, deceptive business practices and false advertising for promoting abortion pill reversal, a treatment that major medical groups say is unproven and potentially dangerous.

Pregnancy centers claim that taking progesterone after the first of two pills in a medication abortion can reverse the procedure, but many physicians say evidence is inconclusive. A 2019 UC Davis study, though incomplete, reported cases of severe vaginal bleeding.

Weeks after James filed her lawsuit, the National Institute of Family and Life Advocates and two anti-abortion centers preemptively sued in response, claiming that James’ actions violate the First Amendment by threatening penalties for touting the treatment.

A federal judge sided with the pregnancy centers and blocked James from pursuing her lawsuit—a decision the attorney general brought to the Second Circuit on Tuesday.

Before a three-judge panel, including Trump appointee Joseph Bianco and Biden appointees Allison Nathan and Eunice Lee, an attorney with James’ office contested the lower court’s finding that the pregnancy centers’ speech was not commercial in nature.

“The speech, on the whole, is communicating that they’re proposing a commercial transaction,” Jonathan Hitsous of the attorney general’s office told the judges, claiming that the groups are seeking to sell patients on physicians who will perform the controversial treatment.

Since it’s commercial speech, Hitsous argues that it is not subject to the same protections under the First Amendment as non-commercial speech.

But Judge Bianco noted that this definition could imperil nonprofits performing similar referral work.

“You could have immigration services, nonprofit entities that refer people out for services,” the judge said. “You could have environmental groups that do those things. It would apply to every category.”

Caroline Lindsay, an attorney with Alliance Defending Freedom representing the anti-abortion groups, argued that her clients’ speech “neither proposes a commercial transaction, nor has any economic motivation whatsoever.”

The judges pressed her on whether the National Institute of Family and Life Advocates gained any commercial benefit from sharing the information. Lindsay argued there was no evidence that profit was the primary motive, which she said was the key test under Ninth Circuit precedent.

The three-judge panel didn’t immediately issue a ruling following Tuesday’s arguments.

In a statement, Lindsay said of the case that “many women regret their abortions, and some change their minds after taking the first abortion drug.”

“They should be allowed to hear about this option and make that choice,” Lindsay said. “Right now, women in New York have access to information about safe and effective supplemental progesterone through their local pregnancy centers, but the attorney general is trying to limit women’s choices by taking that access away. The First Amendment prohibits such censorship and makes clear that Letitia James can’t deny women the opportunity.”

James is appealing an Aug. 22, 2024, ruling from U.S. District Judge John Sinatra, a Donald Trump-appointed federal judge in New York’s Western District, who has sparred with the attorney general in the past on issues like the state’s ban on body armor.

In his ruling, Sinatra lambasted James for jumping too quickly to regulate speech.

“If ‘the First Amendment means anything, it means that regulating speech must be a last — not first — resort,’” Sinatra wrote in a 36-page order. “Yet ‘here it seems to have been the first strategy the government thought to try.’”

The commerciality issue was a clear one in Sinatra’s mind:

“Nothing could be fundamentally less commercial than this speech about how a woman might save her pregnancy,” he wrote.

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