Crisis pregnancy centers argue Vermont’s false-advertising law targets ‘their pro-life views’

By SARAH MEARHOFF

VTDigger

Published: 07-30-2023 10:04 AM

Representatives of crisis pregnancy centers argue that a newly enacted Vermont law amounts to “viewpoint discrimination” by subjecting their businesses to false-advertising rules.

The comments, made in interviews one day after the centers filed suit against the state, are a likely preview of legal arguments ahead as Vermont faces the first challenge to one of the reproductive shield laws it overwhelmingly passed after the fall of Roe v. Wade.

But the Vermont attorney general pushed back, saying she’s eager to defend the law in court.

“The law prohibits lying and deception in the marketplace. Who would be against that?” Attorney General Charity Clark told VTDigger on Wednesday. “I look forward to defending the lawsuit.”

Act 15 — previously known as S.37, one of two so-called reproductive shield laws that went into effect in May — in part explicitly makes crisis pregnancy centers subject to Vermont’s pre-existing false advertising laws. Crisis pregnancy centers are limited-services facilities that advertise themselves to pregnant patients, offering some basic obstetrics — such as pregnancy tests and ultrasounds — but whose goal is to dissuade patients from obtaining abortions.

“The Vermont Legislature specifically didn’t apply this law to anyone except for pro-life facilities,” Julia Payne, an attorney with Alliance Defending Freedom, told VTDigger in an interview Wednesday. The national conservative legal advocacy group is representing the case’s plaintiffs.

“This case is about a new law that specifically targets pro-life pregnancy centers,” Payne said. “It doesn’t apply to abortion clinics. It doesn’t apply to centers that refer for abortion. And so this law is different, because of that viewpoint discrimination.”

But Vermont abortion clinics were already subject to the state’s false advertising laws, according to the Vermont Attorney General’s Office.

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Prior to the state’s passage of Act 15, it was crisis pregnancy centers to which those rules did not apply. That’s because these facilities offer their services for free — therefore falling outside the bounds of the state’s consumer protection and false advertising statutes.

Abortion clinics, on the other hand, charge for their services in one way or another and were already subject to those laws.

The lawsuit’s plaintiffs are two crisis pregnancy centers located in Vermont — Branches Pregnancy Resource Center in Brattleboro and Aspire Now in Williston — along with their national anti-abortion nonprofit affiliate, the National Institute for Family and Life Advocates.

This is not the National Institute’s first attempt at overturning state laws regulating crisis pregnancy centers. In 2018, the organization successfully appealed a California state law, the FACT Act, all the way to the nation’s highest court.

The law attempted to compel crisis pregnancy centers to disclaim their anti-abortion stances — a forced speech model of government regulation that the U.S. Supreme Court ruled unconstitutional.

Proponents of Vermont’s Act 15 pointed to the failed California model as a cautionary tale while crafting their own bill language. They ultimately settled on tackling crisis pregnancy centers from the false advertising angle.

Among the supporters of Act 15 was Planned Parenthood of Northern New England.

On Wednesday, the organization’s communications director for Vermont, Eileen Sullivan, said in a written statement: “People facing unintended pregnancy deserve medically accurate information presented objectively and non-judgmentally at bona fide health centers. They don’t need crisis pregnancy centers pushing their own anti-abortion agenda.”

Crisis pregnancy centers across the country have expanded their reach as abortion clinics have shuttered over the years and ramped up activity after the U.S. Supreme Court struck down Roe v. Wade case precedent last summer. With no more nationwide right to an abortion and dozens of states outlawing or restricting access to the procedure, pregnancy centers have proliferated to fill the void.

There are seven such facilities in Vermont, according to the Crisis Pregnancy Center Map, a project of the University of Georgia.

With that expanded reach has come intensifying scrutiny for the facilities, particularly for their advertising strategies. Pro-abortion rights advocates, including Act 15’s proponents, have accused the facilities of spreading medical disinformation or advertising in a misleading way that lures in patients considering an abortion in hopes of persuading them to change course once they’re in the door.

In a statement responding to the lawsuit on Wednesday, Gov. Phil Scott — who signed Act 15 and its companion bill, Act 14, in May — said he is “confident that the law will be upheld as it works through the legal process.”

“False and deceptive advertising is illegal in Vermont, and that protection is especially important when it comes to such significant decisions in one’s life,” Scott said. “Vermonters have made it clear over and over again that we will defend a woman’s right to choose. We will continue to do so.”

In Wednesday’s interview and a press release, Payne and the National Institute for Family and Life Advocates repeatedly called Clark “pro-abortion.” In a press release Tuesday, the National Institute’s president, Thomas Glessner, accused Vermont state government, Scott and “the allies of the abortion industry” of having “stepped so far out of the bounds of just law” with Act 15, “waving their partisan flags while trampling First Amendment rights of people whose only goal is to help women in their time of need.”

Jean Marie Davis serves as executive director of Branches Pregnancy Resource Center in Brattleboro, one of the two Vermont-based plaintiffs suing the state. In a virtual interview with VTDigger on Wednesday, accompanied by Payne, Davis said Act 15 has “censored our ability to show people our services and to help women with their unplanned pregnancies.”

“It makes it a little bit more difficult for us to feel comfortable in sharing all of the aspects of our center and what we’re able to do,” Davis added.

But asked if the center has altered its advertising strategy or website since Act 15 took effect, Davis answered: “We haven’t changed our advertising.”

“We haven’t changed anything, because it’s free speech,” Davis answered. “As a pregnancy center, we have the ability to share that we are a faith-based organization. We are Christians. We believe in Jesus and we have beliefs and we offer real support.”

According to the lawsuit filed with the U.S. District Court for the District of Vermont on Tuesday, Branches has stopped distributing a card to its patients that offers an “abortion pill reversal” hotline, for fear of prosecution under Act 15. The lawsuit also claims that Aspire Now, the Williston center, would like to post a video about abortion pill reversal on its website but has not out of fear of prosecution.

The Attorney General’s Office told VTDigger on Wednesday that it has not pursued enforcement actions against any crisis pregnancy center since Act 15 took effect. Davis confirmed to VTDigger that Branches has not been legally pursued by the state nor issued a warning, under Act 15.

Payne interjected that “pre-enforcement challenges are a hallmark of civil rights litigation and that pregnancy centers don’t have to wait to be fined $10,000 while living in fear of censorship because of their pro-life views.”

Asked if Alliance Defending Freedom has ever previously challenged Vermont’s pre-existing false advertising statutes, Payne answered, “Not as far as I’m aware.”

“But those statutes are distinct, because they do not have the same viewpoint discrimination issue and because those statutes do not apply to two centers providing free services,” Payne said.

Alliance Defending Freedom is an active, conservative litigation group, mounting legal challenges to laws across the country surrounding issues of religious freedom, reproductive health care and LGBTQ+ rights. In the past year, it has drawn widespread attention for spearheading the legal challenge to the Food and Drug Administration’s authorization of the widely used abortion medication mifepristone.

As for why Alliance Defending Freedom took up the Vermont case, Payne said, “Because we believe that pregnancy centers should be free to serve women and offer the support that they need without fear of unjust government punishment.” For many of Vermont’s crisis pregnancy centers, Payne noted, a $10,000 fine would be a fatal blow.

“Pregnancy centers, like all others, are free to speak their pro-life views,” Payne said. “Laws like this hamper the centers’ abilities to truly serve women.”