Abortion Rights

Crisis Pregnancy Center Fraud Prevention Act

Summary: The Crisis Pregnancy Center Fraud Prevention Act would create a mechanism for a government authority to notify a limited services pregnancy center about apparent false or fraudulent advertising, and penalties would accrue if a fraud is both proven and continues after this notification.

Background Summary

Crisis Pregnancy Centers (CPCs) present themselves as legitimate reproductive health clinics, but have the purpose of deceiving women seeking all-options medical care. CPCs commonly provide unlicensed counselors or volunteers whose main objective is to do whatever it takes to convince women to forego obtaining an abortion. Most of these CPCs are in business to misrepresent medical facts.

CPCs don’t need to be licensed and most are not. “CPCs are generally staffed by volunteers committed to Christian beliefs but who lack medical training,” explains an article in the Cardozo Law Review. Nevertheless, CPC staff and volunteers, sometimes dressed like doctors and nurses, counsel and serve women as if they were medical professionals. For example, when an investigator posing as a pregnant woman was given a sonogram by a CPC staff member, which is not unusual, the staff member identified the investigator’s IUD as her fetus.

There are about 2,500 Crisis Pregnancy Centers across the United States, and in some parts of the country, CPCs outnumber legitimate abortion clinics by far. For example, while 95 percent of Minnesota counties do not have an abortion provider, there are over 90 CPCs in the state; crisis pregnancy centers outnumber abortion providers by almost 15 to 1. In North Carolina, CPCs outnumber abortion providers by 4 to 1. Many CPCs are intentionally located near actual abortion providers, display misleading signage, and use false advertising tomislead women into believing the CPCs offer unbiased counseling and abortion services, when in fact, the opposite is true.

Women who seek health care or counseling during pregnancy require and deserve accurate information about the services that CPCs provide. That is why the city of San Francisco enacted legislation in 2011 to create a mechanism for law enforcement authorities to notify a limited services pregnancy center about apparent false or fraudulent advertising, with penalties accruing when the fraud continues after this notification. The federal district court in San Francisco upheld this law.

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Model Legislation

SECTION 1. SHORT TITLE

This Act shall be called the “Crisis Pregnancy Center Fraud Prevention Act.”

SECTION 2. FINDINGS AND PURPOSE

(A) FINDINGS—The [legislature/council] finds that:

1)      In recent years, facilities that seek to prohibit or discourage clients from having an abortion have become common throughout the state. These facilities are often referred to as crisis pregnancy centers (CPCs). Although some CPCs are licensed or have a health care provider on staff, most CPCs are not licensed medical clinics and do not employ health care providers for the pregnant women who come to their facility.

2)      Some CPCs openly acknowledge in their advertising and their facilities that they do not provide abortions or refer clients to other providers of such services. Many CPCs, however, seek to mislead women contemplating abortion into believing that their facilities offer health care including abortion services and unbiased counseling.

3)      Because of the time-sensitive and constitutionally protected nature of the decision to terminate a pregnancy, false and misleading advertising about the services offered by CPCs is of special concern. CPCs have the constitutional right to say whatever they want against abortion, but it is an entirely different matter to defraud women about the services they offer.

4)      After carefully balancing the constitutionally protected right of a woman to choose to terminate her pregnancy, the right of individuals to express their religious and ethical beliefs about abortion, the harm to women caused by even slight delays that are a result of false advertising for pregnancy and/or abortion services, and the cost to the government that can accrue from such delay, it is clear that there exists a need to regulate false and misleading advertising by pregnancy facilities offering limited services.

[Bill drafting note: Because of the sensitivity of First Amendment issues and the fact that abortion opponents often file suit over the First Amendment, the Findings should be carefully crafted to describe the problem in your own jurisdiction.]

(B) PURPOSE—This law is enacted to protect women’s health, safety and welfare.

SECTION 3. PREGNANCY CENTER FRAUD

After section XXX, the following new section XXX shall be inserted:

(A) DEFINITIONS—In this section:

1)      “Abortion” means any medical treatment intended to induce the termination of a pregnancy except for the purpose of producing a live birth.

2)      “Client” means an individual who is inquiring about or seeking services at a pregnancy services center.

1)      “Emergency contraception” means any drug or device approved by the U.S. Food and Drug Administration that prevents pregnancy after sexual intercourse.

3)      “Health information” means any oral or written information in any form or medium that relates to health insurance and/or the past, present or future physical or mental health or condition of a client.

4)      “Limited services pregnancy center” means a pregnancy services center that does not directly provide, or provide referrals to clients, for abortions or emergency contraception.

5)      “Pregnancy services center” means a facility, including a mobile facility, where the primary purpose is to provide services to women who are or may be pregnant, and that either offers obstetric ultrasounds, obstetric sonograms or prenatal care to pregnant women, or has the appearance of a medical facility. A pregnancy service center has the appearance of a medical facility if two or more of the following factors are present:

a)      The facility offers pregnancy testing and/or pregnancy diagnosis;

b)      The facility has staff or volunteers who wear medical attire or uniforms;

c)      The facility contains one or more examination tables;

d)      The facility contains a private or semi-private room or area containing medical supplies and/or medical instruments;

e)      The facility has staff or volunteers who collect health information from clients; or

f)       The facility is located on the same premises as a state-licensed medical facility or provider or shares facility space with a state-licensed medical provider.

6)      “Premises” means land and improvements or appurtenances or any part thereof.

(B) UNLAWFUL FRAUD

It is unlawful fraud for any limited services pregnancy center to disseminate or cause to be disseminated before the public in [insert jurisdiction], or to disseminate before the public anywhere from [insert jurisdiction], any advertising about the services or proposed services performed at that center if the management of the center knows or, by the exercise of reasonable care, ought to know is untrue or clearly designed to mislead the public about the nature of services provided. Advertising includes representations made directly to consumers; marketing practices; communication in any print medium such as newspapers, magazines, mailers or handouts; any broadcast medium such as television or radio, telephone marketing, or advertising over the Internet such as through websites and web ads.

[Bill drafting note: A particular state might use language that is similar to any existing Unfair and Deceptive Trade Practices Act.]

(C) ENFORCEMENT

1)      The [insert appropriate authority] may enforce the provisions of this section through a civil action in any court of competent jurisdiction. Before filing an action under this section, [insert appropriate authority] shall give written notice of the violation to the limited services pregnancy center. The written notice shall indicate that the limited services pregnancy center has ten (10) days in which to correct the false, misleading or deceptive advertising. If the limited services pregnancy center has not responded to the written notice within ten (10) days or refuses to correct the false, misleading, or deceptive advertising within that period, [insert appropriate authority] may file a civil action.

2)      [Insert appropriate authority] may apply to any court of competent jurisdiction for injunctive relief compelling compliance with any provision of this section and correcting the effects of the false, misleading, or deceptive advertising. Such an injunction may require a limited services pregnancy center to:

a)      Pay for and disseminate appropriate corrective advertising in the same form as the false, misleading, or deceptive advertising.

b)      Post a notice on its premises, in a location clearly noticeable from the waiting area, examination area, or both, stating:

i.      Whether there is a licensed medical doctor, registered nurse, or other licensed medical practitioner on staff at the center; and

ii.      Whether abortion, emergency contraception, or referrals for abortion or emergency contraception are available at the center.

c)      Any other narrowly tailored relief that the court deems necessary to remedy the adverse effects of the false, misleading, or deceptive advertising on women seeking pregnancy-related services.

3)      Upon a finding by a court of competent jurisdiction that a limited services pregnancy center has violated this section, [jurisdiction] shall be entitled to recover civil penalties from each and every party responsible for the violation of not less than [$500] and not more than [$5,000] per violation. In addition, if the [jurisdiction] prevails it shall be entitled to reasonable attorney’s fees and costs pursuant to order of the court.

4)      Nothing in this section shall be interpreted as restricting, precluding or otherwise limiting a separate or concurrent criminal prosecution under the [insert relevant law].

SECTION 4. SEVERABILITY

The provisions of this Act shall be severable, and if any phrase, clause, sentence or provision is declared to be invalid or is preempted by federal law or regulation, the validity of the remainder of this Act shall not be affected.

SECTION 5. EFFECTIVE DATE

This Act shall take effect on XXXX 1, 2016.