Issue Overview
Unregulated Pregnancy Clinics (UPCs) 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.159 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.160,161 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.162
UPC intake forms are often invasive. Even though they are not medical providers, many UPCs ask for prescription drug lists, past or current illnesses, and medical conditions unrelated to their services. Some ask inappropriate questions like the name or age of the person who impregnated the client, whether the client is living with someone they aren’t married to, when they first had sex, or whether they have multiple partners or same-sex partners. Collecting such information is unnecessary and unethical, given that most UPCs only provide over-the-counter pregnancy tests, STD/STI tests without treatment, lay counseling, and material resources like diapers and wipes. Further, even though they don’t bill insurance, UPCs often ask for clients’ government identification documents, insurance information, income, employer, or eligibility for public assistance.163
Because the vast majority of UPCs are not medical clinics, they can and do violate clients’ privacy. Traditional medical clinics must follow the privacy, confidentiality, and records security requirements of the Health Insurance Portability and Accountability Act (HIPAA). UPCs are not subject to HIPAA and, therefore, are not required to protect clients’ private health information.164
Many UPCs maintain client records in online databases accessible by third parties outside the UPC.165 A digital system called eKYROS feeds personal client information into a central database linked with the national UPC umbrella groups Heartbeat International and Care Net.166 Other central databases used by UPCs include Next Level167 and CoolFocus.168
The national UPC umbrella organizations collect these records to amass “digital dossiers” on clients that could be used in pregnancy-related prosecutions. As a brief by the Alliance reports: “the CPC industry is now functioning as surveillance infrastructure for the anti-abortion movement, amassing data that could be used in pregnancy- and abortionrelated prosecutions….”169 The global anti-abortion group Heartbeat International, for example, stores “digital dossiers” on clients, stating “Big data is revolutionizing all sorts of industries. Why shouldn’t it do the same for a critical ministry like ours?”170
Our state must regulate UPCs. The American Medical Association “urges the development of effective oversight for entities offering pregnancy-related health services and counseling.”171 The American College of Obstetricians and Gynecologists says that policymakers should hold UPCs “accountable for deceptive practices by, for example, enforcing and strengthening consumer protection laws against false and misleading advertising, investigating the pervasiveness and impact of deceptive practices on patients, and partnering across the public and private sectors to ensure transparency.”172 They are right.
[NOTE: This could be a budget amendment in a state that funds UPCs.]
SECTION 1. SHORT TITLE
This Act shall be called the “Right to Dignified Care Act.”
SECTION 2. FINDINGS
The legislature finds that:
1. Unregulated Pregnancy Clinics (UPCs) [or whatever name your state uses], also known as “crisis pregnancy centers,” are facilities that represent themselves as offering unbiasedreproductive health care information and services but are primarily intended to prevent clients from seeking or accessing abortions.
2. UPCs commonly ask clients to fill out a form, designed to look like a medical intake form, prior to receiving any products or services. As one UPC explains on its website, “We willgive you an intake form similar to what you might fill out at a doctor’s office.”173
3. But a UPC is not a traditional doctor’s office. For that reason, it is improper and unreasonably intrusive for UPCs to ask certain questions on an intake form.
4. UPCs primarily seek out or advertise to attract clients who are young and unfamiliar with health care standards, have lower incomes, and are in vulnerable situations, so these clients may be unaware that some questions are only reasonable if asked by a licensed medical provider and others are unreasonable for a medical intake form under any circumstances.
5. UPCs are not required to follow the privacy, confidentiality and records security
requirements of the Health Insurance Portability and Accountability Act (HIPAA).
Nevertheless, many UPCs give clients a sense of security by falsely claiming that they are subject to HIPAA or “HIPAA compliant.”174
6. There is a strong need for legislation. Every one of the topics listed in Section (3)(B) is actually asked on intake forms at some UPCs.
SECTION 3. RESTRICTIONS ON HEALTH CARE INTAKE FORMS
After section XXX, the following new section XXX shall be inserted:
(A) DEFINITIONS—In this section:
1. “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.
2. “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) PROHIBITED INTAKE QUESTIONS
1. An Unregulated Pregnancy Clinic shall not make it a condition of service, or make it reasonably appear to be a condition of service, that a client must disclose any of the following information:
(a) A list of the prescription drugs the client takes;
(b) A list of the client’s current or past illnesses;
(c) A list of the client’s medical conditions that are not directly relevant to a determination of pregnancy;
(d) The name or age of the potential baby’s father;
(e) Whether the client is living with a man to whom they are not married;
(f) The client’s age when she first became sexually active;
(g) Whether the client is currently sexually active with one or more than one partner;
(h) Whether the client engages in same-sex relationships; or
(i) For a site that does not bill insurance or is an official Medicaid or WIC enrollment site, the client’s income, employer, or eligibility for public assistance.
2. The Attorney General may promulgate regulations to clarify which intake questions are overly intrusive and whether a facility is making answers to overly intrusive questions a condition of service, or it reasonably appears to make them a condition of service.
(C) ENFORCEMENT
1. 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].
2. 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.
3. 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.
4. 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.
5. 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.
