A Closer Look at NIFLA v. Becerra and the Role of Crisis Pregnancy Centers

In its recent decision in National Institute of Family and Life Advocates (NIFLA) v. Becerra, the U.S. Supreme Court struck down California laws mandating specifically-worded notices at pregnancy resource centers that provide prenatal and parenting assistance mainly to poorer women facing unexpected pregnancies. Such centers are dubbed in the ruling as “Crisis Pregnancy Centers” or “CPCs” but are also known as “pregnancy resource centers.”

Some Americans support state-drafted notices at CPCs on the belief that the notices help women in crisis avoid confusion or even deception regarding whether such centers provide abortions. Opponents of the notices focus on the role of CPCs as a safety net for large numbers of poor women and children for whom state-provided social services are too often inadequate and impersonal. In order to get a balanced view of the Supreme Court’s ruling in this critical case, it is helpful to consider not only NIFLA v. Becerra, but also the history of accusations against CPCs, and the roles that they have historically played in the lives of women, children, and communities.

The Supreme Court’s June 26 decision concerned two sections of a California law. The first required legal but unlicensed CPCs to post a notice that they are not licensed to provide medical services and do not have an associated licensed medical provider. The second required CPCs licensed to practice medicine to notify women by signage and handouts in up to 13 languages that California provides free or low-cost abortions; the CPCs regarded this requirement as directly undercutting their work.

Like other states, California already has longstanding statutes forbidding false advertising of services and forbidding falsely holding oneself out to practice medicine. Furthermore, California denied that it passed the provisions at issue on the basis of evidence that women “go into [CPCs] and they don’t realize what they are.” Rather, California claimed that it passed the licensed-center requirement to “provid[e] low-income women with information about state-sponsored services,” and the unlicensed center requirement so that pregnant women know when they’re getting care from licensed professionals. The CPCs responded that California was actually “taking aim” at CPCs given how the requirement did not apply to a myriad of other places where women could be expected to learn about state-sponsored services.

Without wading into the weeds of free speech law, it is accurate to say that the Supreme Court struck down both California laws as regulating “content” in violation of the First Amendment’s Free Speech protections: neither law could pass the constitutional test that it be “narrowly tailored to serve compelling state interests.” Instead, the Court held that the laws: 1) compelled speech against the speaker’s wishes, 2) responded to merely “hypothetical justifications” (i.e. that some women might not know that an unlicensed facility was unlicensed) and 3) applied to a “curiously narrow” subset of speakers (i.e. CPCs), suggesting that the state was trying to silence opposing viewpoints.

Furthermore, said the Court, despite the stated purposes of its laws, California failed to use easily available alternative channels to advertise state-sponsored abortions to low-income women, instead, exempting from the requirements the vast majority of clinics where advertising state services could reach more women. This also led the Court to suspect that the state was engaged in another type of free speech violation: targeting particular citizens for their viewpoint.

Crisis pregnancy centers should be recognized as a welcome sign of the public’s willingness to help reduce the emotional and financial stress of poor and minority American women facing unexpected parenthood challenges.

It is fair to say that CPCs are controversial to pro-choice advocates who broadly claim that they deceive women into believing that they might provide abortions, but then seek to persuade them to avoid abortion. Opponents of CPCs regularly point to hotly-disputed congressional hearings, a VICE media video, or other undercover work to support their claim.

Assuming that the relevant videos, audio recordings, and first-person accounts are reliable, it does appear that some employees and/or centers sought to attract abortion-minded women to their services by failing to disclose immediately that they did not provide abortions. However, state laws regarding truth in advertising and the licensed practice of medicine can address such violations. At the same time, a glance at the websites of the organizations running the vast majority of CPC’s in the U.S. (Care Net, BirthRight, and HeartBeat International) reveals that each readily discloses its pro-life perspective. Furthermore, it is estimated that the over 2,500 CPCs operating in the U.S. provide a private safety net for about one million women and their children per year who cannot obtain what they need from the state or from other medical or charitable organizations. These women and their families regard CPCs as an irreplaceable lifeline.

A recent New York Times column, “Americans Love Families. American Policies Don’t,” highlighted the nation's lack of a coherent family policy, despite the popularity of “family rhetoric” in politics. However, CPCs are at least one example of family policy at work at the local level in communities nationwide. These centers step in to help women in crisis at a critical time in family life when the fear of economic burdens can be especially high. They provide some or all of the following services to women: free pre-and post-natal care, ultrasounds, baby and toddler supplies, referrals to various state assistance programs, family dynamics assistance, babysitting, job counseling, and even housing. Anecdotal evidence suggests that a very high percentage of this assistance is provided to minority women and children and recent immigrants—all free of charge.

There is no official source reporting the total amount of private donations supporting women and children through CPCs, or the total number of women and children aided. Individual clinics’ experiences, however, are illustrative: A center in Washington DC, for example, has served over 56,000 poor women and children since 1981 with free counseling, supplies, referrals to free medical and legal services, babysitting, tutoring, educational opportunities, job training, and childcare. And additional six to seven women and children per year are also housed in an affiliated maternity home. A center in New York, covered by the New York Times, assists about 1,000 pregnant women per year, relying entirely upon private donations and volunteer assistance. A center in Chicago, now with several locations and a residential program, has operated for 40 years and responds to over 5,000 women in Chicago annually.

When giving online testimony about their experience at CPCs, however, the mothers assisted by these centers don’t recite facts and figures about the total number of women served or the list of services received at the center that took them in. Instead, they speak about the intensely personal and positive support they received from the community of women there. They detail their relief at receiving an unconditional welcome following abandonment by their child’s father or bottoming out financially. They refer to their experience of finding a “safe haven” from violence and money worries, and “more support” than from their own families, and of being uplifted by the cheerful company of “other moms” with similar experiences.

NIFLA v. Becerra assures CPCs—which are nearly always entirely privately organized and funded—that they can continue to operate without being required by law to deliver the state's preferred messages about abortion. Importantly, the decision does not alter states’ longstanding insistence that CPCs must fairly represent their services to inquiring pregnant women. But judging from the information available online about most CPCs across the nation, misrepresentations are the exception and not the rule. At the same time, crisis pregnancy centers should be recognized as an irreplaceable and private component of the social safety net, and a welcome sign of the public’s willingness to help reduce the emotional and financial stress of poor and minority American women facing unexpected parenthood challenges.

Helen Alvare’ is a Professor of Law at George Mason University School of Law, and the co-founder of Women Speak for Themselves.

Editor's Note: The views expressed in this article are those of the author and do not necessarily reflect the official policy or views of the Institute for Family Studies.