A bill that would ban what abortion rights advocates describe as deceptive advertising at crisis pregnancy centers is waiting for a vote on the House floor after passing the Senate 21-15 on May 5th. The legislation has faced bipartisan opposition, with Sen. Cathy Osten, D-Sprague, and two other Democrats joining the Republicans to vote against the legislation. The proposal has been considered by legislators in four previous legislative sessions, most recently passing the Health Committee and House, but dying without a vote in the Senate in 2019.
Supporters of the proposal argue that “limited services pregnancy centers,” which do not offer referrals for abortion or emergency contraception, masquerade as comprehensive medical facilities, luring pregnant women in an effort to dissuade them from abortions. Opponents say they are unconvinced of the necessity of the bill and reality of the problem, and raised constitutional concerns about the targeting of faith-based organizations.
Deceptive advertising is already illegal in Connecticut, as any “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce” would be in violation of the Connecticut Unfair Trade Practices Act.
But in February, Connecticut Attorney General William Tong testified that because some pregnancy centers may not engage in “trade or commerce,” they could fall outside of the scope of the state’s Unfair Trade Practices Act. Tong cited a 1986 example from Massachusetts, when a limited services pregnancy center won a case related to deceptive advertising by arguing that, as a charitable organization, they were not engaging in “trade or commerce.”
If the new legislation is signed into law, the state Attorney General would be able to sidestep this potential loophole, and gain the power to take the centers to court, where they could receive fines of up to $500, in addition to legal fees, and be required to pay for and distribute corrections to advertising judged by the courts to be deceptive.
Susan Baker, nurse manager at a limited service pregnancy center, Care Net Pregnancy Resource Center of Southeastern Connecticut, warned that the bill would give the attorney general, an elected political figure, too much power to decide what advertising is deceptive.
“The current AG said that a statement on one of the pregnancy center websites stating,
‘Pregnant? We can help,’ was deceptive,” Baker said. “How is that deceptive? That is exactly what pregnancy centers do. They provide help to pregnant women and their families.”
Liz Gustafson, state director of NARAL Pro-Choice Connecticut, disagreed, saying instead that providing the attorney general with that power is necessary to close a loophole putting women’s health at risk.
“Crisis pregnancy centers endanger women’s health by using deceptive advertising tactics, presenting themselves as comprehensive health clinics, but once inside, people are given false information, shamed, pressured about their decisions, and sometimes ultimately blocked from accessing legitimate medical care,” Gustafson said.
The legislation takes a different approach than legislation in other states related to limited service pregnancy centers and abortion access.
One California law, later struck down by the U.S. Supreme Court on First Amendment grounds, required centers to share information about free and low-cost abortions in the state. Legal experts say that the legislation proposed in Connecticut likely raises fewer First Amendment concerns because it does not compel speech.
The ACLU of Connecticut supports the legislation, arguing that it does not infringe on civil liberties.
“Lots of speech in our country is protected, but there are some exceptions, and this is one of them,” said David McGuire, executive director of the ACLU of Connecticut. “We are confident that there are no First Amendment problems, as this is regulating deceptive speech, which is not constitutionally protected, and a right we fight for is at stake. Women are being wilfully deceived and in some cases losing their right to choose.”
Still, some scholars continue to raise constitutional questions about legislation targeting religious organizations.
“Constitutionally, this law hardly seems clear-cut,” said Mark Strasser, a professor at the Capital University Law School in Ohio who has studied the Supreme Court’s treatment of limited service pregnancy centers and the First Amendment.
Steven Shiffrin, a professor at Cornell Law School and a First Amendment scholar, said that the law could violate the First Amendment protection against viewpoint discrimination – meaning that even if the underlying action of advertising deceptively remains illegal, singling out faith-based organizations for breaking that law would still be unconstitutional, Shiffrin said.
“If these centers engage in a particularly egregious form of deceptive advertising that justifies an additional penalty, then the law would be constitutional,” Shiffrin said. “But you can’t base differential treatment on the point of view of the advertiser.”
State Rep. Jillian Gilchrest, D-West Hartford, a co-sponsor of the bill, said she does not see the bill as targeting the organizations based on religion or a point of view, but rather, based on a specific type of deception.
“If other entities in the state are trying to deceive women or men, I’d be happy to address that as well,” Gilchrest said.
But according to Strasser, even if the law does not explicitly target religious organizations, faith-based limited services pregnancy centers could still claim that a special burden was imposed on them as a direct result of their religious beliefs. In that case, the courts would have to weigh that burden with the risk to abortion rights.
“Women have lost the opportunity to exercise the right to abort because crisis pregnancy centers have delayed them accessing the care they wanted, and it’s not beyond imagination that this could put women at medical risk, too,” Strasser said. “That could be a compelling reason why highlighting this kind of deceptive advertising makes sense, and would undermine the claim that this is religious targeting.”
Gustafson said that the advertising does infringe upon abortion rights, because limited services pregnancy centers misinform patients about healthcare information, sometimes delaying access to medical care so women can no longer choose an abortion.
A 2018 report from NARAL Pro-Choice Connecticut examining the 25 limited services pregnancy centers in the state offers a number of examples of advertising that abortion rights advocates say presents the facilities as if they are comprehensive reproductive healthcare clinics, rather than faith-based organizations attempting to dissuade patients from obtaining abortions.
Dr. Iyanna Liles, an obstetrician gynecologist at St. Francis Hospital and Medical Center in Hartford, recounted a story of one patient who she said attempted to visit a reproductive health clinic, but was ushered into a neighboring building by “misleading advertisements” and workers at a limited service pregnancy center who then, once inside, pressured her to continue her pregnancy. The patient ended up in Liles’ care, where she was informed about her options, and “ultimately made an informed decision that she felt was in her best interest,” Liles said.
While abortion rights advocates and medical professionals shared stories at a public hearing about women they say have been harmed by deceptive advertising, no women came forward themselves.
State Sen. Heather Somers, R-Groton, said that is part of why she opposes the bill. There is “no evidence, no proof, and no testimony – nothing that says these centers are being deceptive,” explained Somers. Somers has been endorsed as a candidate by Planned Parenthood of Connecticut.
Gilchrest, who once served as executive director of NARAL Pro-Choice CT, said that while she has not personally heard from any women who have been harmed by manipulative advertising, she said she is not surprised that women seeking abortions might not be comfortable coming forward due to stigma around abortion.
Jeremy Bradley, executive director of Caring Families Pregnancy Services, a limited services pregnancy center in Willimantic, also highlighted the lack of firsthand testimony from any women affected by deceptive advertising. He said he was not persuaded by the idea that women are too scared to testify.
“There is another more plausible possibility why women have not come forward,” Bradley said. “There are simply no problems to report.”
But according to Gustafson, the stigma of seeking an abortion is an important reason for strengthening the enforcement of deceptive advertising. She said that relying on the Department of Consumer Protection to respond to consumer complaints isn’t a viable option when an abortion is such a stigmatized and private decision.
But beyond “passing legislation for a problem that does not exist,” Somers said she was also concerned by the potential financial risk to limited service pregnancy centers, which she said play a key role in providing healthcare in eastern Connecticut.
“These centers have provided help for over 40,000 Connecticut women,” Somers said. “They don’t just provide pregnancy advice or help, they also help women access diapers and food supplies, as well as STD tests, pap smears, and mammograms. They’ve been invaluable during the pandemic.”
Somers said she is a supporter of a woman’s right to choose, but is concerned by the “unlimited power” this bill would provide to the attorney general to determine what is and is not deceptive.
Republican efforts to introduce an amendment to define “deceptive” failed along party lines.
“In my years of serving on the public health committee, I’ve seen this bill come up again and again, and there just is not any concrete evidence of any actual deception going on,” said House Republican Leader Vincent Candelora.
Editor’s note: A paraphrase of comments by Gustafson has been edited to clarify that she was concerned that the stigma of an abortion was an important reason for the bill. The previous wording instead referred to the shame of an abortion.