Bill 4A - Preventing False Advertising in Reproductive Services Act

MODEL BILLS

Deceptive Practices

Preventing False Advertising in Reproductive Services Act

Issue Overview

Unregulated Pregnancy Clinics often present themselves as free medical clinics to mislead clients seeking abortion. Their primary goal is to prevent clients, through persuasion, misinformation, or delay, from having an abortion.¹⁷⁸ While these organizations have the right to oppose abortion, most use misleading tactics, including ads, signs, and websites presenting their facilities as conventional medical clinics, even, at times, as abortion providers.^179,180 Inside, they often resemble medical offices, with waiting rooms and exam rooms outfitted with medical equipment, and staff in lab coats and scrubs. Clients must often fill out intake forms that ask for private health information.¹⁸¹

The vast majority of UPCs advertise medical or quasi-medical services. Nearly all offer free pregnancy tests¹⁸² readily available at any pharmacy. Between one-quarter¹⁸³ and one half¹⁸⁴ advertise free STD/STI tests and approximately three-quarters advertise free ultrasounds, ¹⁸⁵ typically performed by someone presenting as a medical professional.

Advertising ultrasound testing by UPCs is unethical. UPCs do not perform diagnostic ultrasounds from which medical conclusions can be drawn. They call them “limited” ultrasounds,¹⁸⁶ which is little more than showing pictures of the uterus, hoping to emotionally influence clients to continue the pregnancy. UPCs are using medical equipment unethically,¹⁸⁷ and even one of the three major UPC umbrella groups, Care Net, truthfully answers “Can we just do ultrasounds without becoming a medical clinic?” with the answer, “Absolutely not. The use of ultrasound energy in any form is considered the practice of medicine.”¹⁸⁸ [If your state requires women to have an ultrasound before accessing abortion care, many UPCs have been falsely presenting their ultrasound services as meeting this requirement.¹⁸⁹

Mobile UPCs are deceptively designed to look like conventional medical facilities.¹⁹⁰ As ICU Mobile, “A Ministry Division of Care Net,” concedes: “ICU Mobile units are neutrally branded and medically designed. By having this independent brand, we break down the barriers that may prevent abortion-minded women from coming on board…”¹⁹¹ Another set of mobile UPC trucks, from Save the Storks, have painted on the sides: “Women’s Choice Center,” “Pregnancy Testing & Ultrasound,” and “mobile medical unit.”¹⁹²

UPCs lack medical oversight and standards, exposing people to risk. Some UPCs have off-site doctors listed as medical directors or employ onsite RNs or LPNs, but they do not diagnose medical conditions, write prescriptions, or refer people for treatment. Because they are overwhelmingly not regulated as conventional medical clinics, they are not required to follow standards of care on client confidentiality, medical accuracy, or sanitation.¹⁹³

Clients seeking pregnancy services need honest and nonjudgmental medical services. The American Medical Association “advocates that any entity offering crisis pregnancy services…truthfully describe the services they offer or for which they refer—including prenatal care, family planning, termination, or adoption services—in communications on site and in their advertising, and before any services are provided to an individual patient.”¹⁹⁴ They are right.

Preventing False Advertising in Reproductive Services Act

Summary

The Preventing False Advertising in Reproductive Services Act prohibits Unregulated Pregnancy Clinics (UPCs) [or use another name if it's common for your state] from disseminating false advertising about their services.

[BILL DRAFTING NOTE: States have different regulatory schemes and may have a different name for UPCs, so please work with local advocates to decide the best way to name and define them in your state legislation.]

Based on VT SB 37 (2023)

SECTION 1. SHORT TITLE

This Act shall be called the “Preventing False Advertising in Reproductive Services Act.”

SECTION 2. FINDINGS

The legislature finds that:

Most Unregulated Pregnancy Clinics (UPCs) are facilities primarily intended to prevent women from seeking abortions. Such UPCs have the constitutional right to speak out against abortion.
However, most such UPCs present themselves to potential clients as if they were unbiased medical clinics, or even abortion clinics, providing a wide range of reproductive and maternal health services. This presentation is fraudulent.
Fraud against consumers is already prohibited under [cite the state law]. However, the existing statute does not provide protection against fraud by UPCs because they do not usually charge or bill insurance for their services.
Because of the significant health impacts of pregnancy, it is vital for clients to access early medical care to confirm pregnancy, gestational age, identify ectopic pregnancy, fetal anomaly, issues with the placenta or amniotic fluid, and any factors that could make the pregnancy high risk or dangerous. Early medical care may also be important for the health of the fetus. False and misleading advertising about the services offered by UPCs can delay the search for comprehensive prenatal care or for treatment for potentially life-threatening medical conditions.
After carefully balancing the reproductive rights of clients, the right of individuals to express their religious and ethical beliefs about abortion, the harm to clients caused by even slight delays that are a result of false advertising for pregnancy 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 UPCs.

SECTION 3. FRAUD PREVENTION

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

(A) DEFINITIONS—In this section:

“Chief medical officer” means a physician licensed under [cite code], a physician assistant under [cite code], or an advanced practice nurse under [cite code], who oversees the daily medical operations of a medical facility and is practicing within the provider’s scope of practice.
“Unregulated Pregnancy Clinic” means a facility primarily offering determination of pregnancy and pregnancy counseling that does not have one or more chief medical officers on staff or under contract who provide or directly supervise, in person, the provision of all of the services provided at the facility. [NOTE: Many states have laws or regulations that define “direct supervision.” Ask your in-state advocates and bill drafters to ensure that the legislation uses language that fits your state.]

(B) UNLAWFUL FRAUD BY AN UNREGULATED PREGNANCY CLINIC

It is an unfair and deceptive act and practice in commerce and a violation of section [cite the consumer fraud section] of this title for any Unregulated Pregnancy Clinic to disseminate or cause to be disseminated to the public any advertising about the services or proposed services performed at that center that is untrue or clearly designed to mislead the public about the nature of services provided.
Such advertising includes representations made directly to consumers; marketing practices; communication in any print medium, such as newspapers, magazines, mailers, or handouts; and any broadcast medium, such as television or radio, telephone marketing, or advertising over the Internet such as through social media, websites, and web ads.
For purposes of this section, advertising or the provision of services by an Unregulated Pregnancy Clinic is an act in commerce.

(C) ENFORCEMENT

Whenever the Attorney General or a district attorney [if applicable: a city attorney, a county counsel] has reasonable cause to believe that an Unregulated Pregnancy Clinic has violated this section, the Attorney General may issue a civil investigative demand pursuant to [cite code].
The Attorney General may commence an action in any court of competent jurisdiction for injunctive relief to compel compliance with the provisions of this section, and for civil penalties for violations.
Prior to commencing an action in court, the Attorney General shall give written notice to the Unregulated Pregnancy Clinic to cure such violations not later than 10 business days after receipt of the written notice.
Upon a finding by the court that an Unregulated Pregnancy Clinic has violated this section, the state shall be entitled to recover:
(a) civil penalties of up to three thousand dollars for a first violation;
(b) civil penalties of up to ten thousand dollars for a second or subsequent violation; and
(c) reasonable attorneys’ fees and costs.
In determining the overall amount of civil penalties to assess against an Unregulated Pregnancy Clinic, the court shall include, but not be limited to the following in its consideration:
(a) the nature and severity of the violation;
(b) the size, scope, and type of the offending organization; and
(c) the good faith cooperation of the offending organization with any investigations conducted by the Attorney General pursuant to this section.

SECTION 4. EFFECTIVE DATE

This law shall become effective on July 1, 20XX.