Fake women’s health clinics run by anti-abortion organizations currently outnumber licensed, professional abortion clinics 3 to 1 — and they’re nearly impossible to regulate.
Called “crisis pregnancy centers” (CPCs), these clinics advertise free pregnancy tests to get patients in the door, but ultimately lean heavily on junk science and spiritual guilt to talk women out of having an abortion. In January, California became the first state in the country to enact a law successfully cracking down on the state’s nearly 350 misleading clinics.
At least in theory.
In practice, it’s been very difficult for California’s groundbreaking law to make any real difference. That’s because three conservative anti-abortion organizations have filed sweeping lawsuits against the officials responsible for enforcing the law — and their threats could effectively freeze any enforcement for the unforeseeable future.
California’s Reproductive FACT Act requires that CPCs give their patients information on how to obtain affordable birth control, abortion, and prenatal care. And if the CPC does not have a medical license (which is often the case), staff have to let their patients know. But the organizations suing the state claim that this law violates freedom of speech and religious freedom rights — the same argument that abortion opponents have used to shut down city-level CPC regulations in the past.
“We’re not asking them to say or do anything against their own values,” said Amy Everitt, director of NARAL Pro-Choice California, a reproductive rights organization that helped draft the FACT Act. “We’re just asking they had out a pamphlet with the information. That doesn’t violate free speech.”
However, these major organizations, who are representing a dozen CPCs across the state, aren’t new to this battlefield. All three — Pacific Justice Institute, Alliance Defending Freedom, and the American Center for Law and Justice — have extensive background defending right-wing lawmakers, groups, and individuals. And they have a history of winning.
One is currently representing Center for Medical Progress’ David Daleiden, the anti-abortion activist behind the series of smear videos targeting Planned Parenthood clinics, and in the past, defended the Boy Scouts of America in their fight to prevent LGBT scouts and scout leaders. Another has been labeled an anti-LGBT hate group by the Southern Poverty Law Center for defending a pastor who said gay people “deserve to be stoned to death.” Funded by the bottomless pockets of Christian megachurches, these groups are not known for backing down.
Everitt called the organizations “the worst of the worst for allowing people to live with dignity.”
All of the California CPCs involved in this lawsuit refused to comment on their involvement with the case. Instead, they directed ThinkProgress to contact the lawyers hired by these large right-wing groups.
In total, the three groups have filed five lawsuits against a variety of players: California Attorney General Kamala Harris, Gov. Jerry Brown, state Public Health Director Karen Smith, and a handful of city and county attorneys from predominantly small communities. It’s this last group of unassuming targets in particular that could threaten the new law’s success.
California Becomes The First State To Crack Down On Misleading 'Crisis Pregnancy Centers'
California judges have already denied four preliminary injunctions requesting to block the state law altogether. So the law's opponents have gotten creative. With the knowledge that small cities want little to do with a major, costly lawsuit, the trio of organizations have reached out to each city attorney, offering to drop them from the case if they agree not to enforce the law.
So far, only one city -- Grass Valley, a town of 12,000 located an hour north of Sacramento -- has openly accepted this settlement.
"This is not a policy statement. It simply comes down to the cost -- Grass Valley is a small city," said Michael Colantuono, the city attorney for Grass Valley charged in the lawsuit. "We support Attorney General Harris in this case...and her office will be the one defending the case. They have the resources to do that, we don't."
Colantuono is part of a private practice and the city pays him hourly for his work, a set-up that he said is commonplace in small towns across the state. If they hadn't taken the settlement deal, Grass Valley would have to cut out a hefty chuck of its budget to cover his hourly pay on the time spent on this case. Colantuono said it's very unusual for these kinds of state laws to be enforced by cities in the first place, and said he won't be surprised if other cities follow his move to settle.
"We're getting to the point when these governments are going to have to make the decision if its worth it, financially," he said.
Charles McKee, who is the county counsel of Monterrey County and who was also charged in the suit, said he's still unsure whether settling is the right choice.
"I'm not inclined to agree to a settlement that will restrict the ability to enforce," he said. "But my issue is: Do I have the resources to enforce it?"
McKee said that, before he was sued, he had no idea the FACT Act even existed -- and had never heard of his county's CPCs. On top of that, he said he didn't expect it was the city or county's responsibility to enforce this state ruling.
"It caught me by surprise! Normally, this is something we'd expect the Attorney General to enforce. It's an odd situation," McKee added.
But NARAL's Everitt said no one should have been surprised. Her organization sent a letter to every official responsible for endorsing the FACT Act at the start of the year. And a spokesperson for the Attorney General's office confirmed that Harris and her staff "expect local law enforcement agencies to take responsibility to enforce the law and stem violations at the local level."
Everitt said that putting the power of enforcement in the hands of local officials makes the most sense in this case, since so many of these CPCs are located in small communities across the country, making state oversight more difficult.
"It would be much harder for the Attorney General's office to do these investigations on each CPC," she said. "It's a well thought-out enforcement mechanism."
After learning of the anti-abortion groups' attempt to bribe state officials, NARAL quickly spread online petitions through the officials' communities asking supporters of the FACT Act to hold their city and county attorneys accountable. Everitt said that the response was universal: "People are offended and angry at the idea that their representatives would think about not enforcing a state law."
According to a NARAL poll taken last September, 80 percent of state voters support the law, including most Republicans and Catholics. With this kind of backing, Everitt said it's confusing why these law enforcement officers would "feel like they shouldn't do their job."
But regardless of whether or not these officials pledge to enforce the state law, Everitt and the Attorney General's office feel confident that the FACT Act will hold up in court. That's because they prepared for the worst.
In drafting the FACT Act, advocacy groups, including NARAL, and state staffers heavily researched failed city-level attempts to restrict CPCs to ensure they wouldn't fall into the same legal traps.
"We knew we needed to write a law that would stand up against constitutional scrutiny," said Evertitt. "And that's still the case."