Commercial Speech in Crisis: Crisis Pregnancy Center Regulations and Definitions of Commercial Speech

Article excerpt

Recent attempts to regulate Crisis Pregnancy Centers, pseudoclinics that surreptitiously aim to dissuade pregnant women from choosing abortion, have confronted the thorny problem of how to define commercial speech. The Supreme Court has offered three potential answers to this definitional quandary. This Note uses the Crisis Pregnancy Center cases to demonstrate that courts should use one of these solutions, the factor-based approach of Bolger v. Youngs Drugs Products Corp., to define commercial speech in the Crisis Pregnancy Center cases and elsewhere. In principle and in application, the Bolger factor-based approach succeeds in structuring commercial speech analysis at the margins of the doctrine.

Introduction

"Pregnant? Need Help? Call Us!" urge highway billboards and subway ads across the country.1 On the other end of the line are Crisis Pregnancy Centers ("CPC"s), also known as Pregnancy Resource Centers.2 CPCs are nonprofit agencies that offer free pregnancy options counseling and related goods and services (e.g., free pregnancy testing, family planning advice, baby clothes) to pregnant women considering pregnancy termination.3 Although CPCs vary in the goods and services they offer, supporters and opponents agree that their paramount, and typically undisclosed, mission is to convince women not to have abortions.4

Many CPCs use misleading or deceptive tactics to attract and retain the "abortion-minded"5 and dissuade them from choosing abortion.6 Despite their antiabortion stance, some CPCs imply that they offer abortion services or referrals to abortion providers by advertising in the "abortion" section of the Yellow Pages.7 Others advertise advice on pregnancy "options," though the only option they advise is continuation of the pregnancy.8 Some attempt to attract clients by setting up near abortion providers and copying their logos, hoping that women who have made an appointment with Planned Parenthood will walk into the wrong office.9 Once the woman is through the door, she finds a clinic-like environment full of "counselors" who may fabricate or overemphasize the physical and mental health risks of abortion.10

Although many CPC volunteers and clients highly value the mission of CPCs and the services they provide, and apart from the debate over the legitimacy of CPCs, some local legislators have identified a public health problem.11 Among other issues, the tactics of CPCs delay women from accessing termination or prenatal services. One physician explains the plight of her patient as follows:

[My patient, Susan,] went to a [Crisis Pregnancy Center] in downtown Manhattan early in her second trimester, thinking that she could obtain an abortion there. The stafftold Susan that she needed an ultrasound before the procedure. Then another ultrasound. They attributed the multiple tests to uncertainty about how advanced her pregnancy was. Because of these delays, Susan's pregnancy progressed into the third trimester. Susan was 32 weeks pregnant and still seeking an abortion when she consulted me at our hospital-based clinic. I had to tell her it was no longer possible: she was well beyond the legal limit for abortion in New York. Susan was shocked, as the "counselor" at the CPC had assured her she could have an abortion in the third trimester. Moreover, when I examined Susan, I found her case straightforward-one simple abdominal ultrasound would have dated her pregnancy easily. The CPC had no medical reason for keeping her waiting.12

To that end, Austin, Texas13; Baltimore, Maryland14; nearby Montgomery County, Maryland15; and New York City16 have recently enacted legislation that requires CPCs to post warnings to potential clients about the limitations of their services. The regulations vary, but they generally require entrance or waiting room signs to inform clients whether the CPC offers or refers clients for contraception and termination services.17 The New York regulation requires similar disclaimers on the CPCs' advertisements. …