Continued Attempts to Regulate Pro-life Pregnancy Help Centers Amount to “Lipstick on a Pig”

Jeanneane Maxon, J.D.  

This is issue 73 in CLI’s On Point Series. To view this report as a PDF, see: Continued Attempts to Regulate Pro-life Pregnancy Help Centers Amount to “Lipstick on a Pig”

 

 

On November 16, 2021, the Illinois state legislature introduced what will amount to another failed attempt to regulate pro-life pregnancy help centers. Illinois House Bill 4221 would require pregnancy help centers to display the following disclaimer in all print and digital advertising, as well as disseminate to every client on-site:

 

“This facility is not licensed as a medical facility by Illinois and has no licensed medical provider who provides or directly supervises the provision of services.”

 

While this notification appears innocent at first glance, a deeper analysis of the bill and the circumstances around it, as outlined below reveal a more sinister motive.

 

 I. Illinois HB4221 is “Lipstick on a pig” and De jure discrimination

 

Illinois HB4221 amounts to nothing more than “lipstick on a pig” in that it is merely another attempt, in a long line of similar attacks, to legislate pro-life pregnancy help centers out of existence.  In doing so, the proposed bill ignores the needs of women, the near-unanimous gratitude they express for the services they receive at centers, and numerous court rulings that have affirmed the centers’ freedom of operation and awarded them judgments against jurisdictions seeking to harass them.

 

1. Use of “Crisis Pregnancy Center” terminology

 

The bill strives to disguise its true purpose by excluding the term “abortion” from its text; however, a simple review of the “findings” reveals its true nature. The findings refer four (4) times to “Crisis Pregnancy Centers,” which is a term historically used specifically to refer to pro-life pregnancy help centers, and more recently used by the pro-abortion movement as their primary term for pro-life pregnancy help centers.

 

2. History of planned and failed legislative attacks against pro-life pregnancy help    centers.

 

Over two decades ago, in 2000, the extremist pro-abortion group NARAL Foundation published and privately distributed its third edition of “Unmasking Fake Clinics,” a booklet that provides step-by-step details of operations designed to attack and discredit pregnancy centers, including the sending of spies posing as clients to manipulate volunteers, and providing phone scripts for abortion activists to do the same.

 

One of the strategies the pro-abortion movement encouraged its followers to employ is to enact legislation against so-called “crisis pregnancy centers.” These legislative efforts, however, have failed miserably. Bills similar to IL HB4221 have been rejected by legislatures in at least nine (9) states, between 2007 and 2020:

 

 

As these efforts failed exponentially in the states, the pro-abortion movement turned its efforts to city and local municipalities in the late 2010s. Not only did this new strategy fail, but it also cost the municipalities millions of dollars in legal judgments and attorney’s fees.

 

Every time a state or locality has imprudently enacted similar legislation, a lawsuit was filed. In all but one lawsuit (San Francisco), a Court has struck down the legislation, including the Supreme Court of the United States. As a result, states/localities have wasted needed taxpayer resources on defending obviously unconstitutional legislation.  Not only that, but Courts have also ordered these states/localities to pay the fees of the pregnancy service centers’ attorneys:

 

  • In NIFLA v. Becerra, California was ordered to pay $399,000 to compensate for pregnancy service centers’ legal fees.ii
  • In Centro Tepeyac v. Montgomery County, Montgomery County, Maryland paid $375,000 in attorney’s fees and nominal damages.iii
  • In Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore, Baltimore paid a pregnancy service center $1.1 million to cover legal fees.iv
  • The City of Austin settled on attorney’s fees for an unknown amount after pregnancy service center attorneys filed with the court to recover $997,144.95 in fees.v The Liberty Institute (representing one of the three pregnancy service centers which won their court case) reported being paid $480,000 in attorney’s fees by the City of Austin.vi

 

The U.S. Supreme Court has similarly rejected pro-abortion efforts to regulate and inhibit pregnancy help centers. In 2018, the Court rejected a similar law from California, finding:

 

The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits laws that abridge the freedom of speech. When enforcing this prohibition, our precedents distinguish between content-based and content-neutral regulations of speech. Content-based regulations “target speech based on its communicative content.” NIFLA v. Becerra, 585 U.S.____(2018); 138 S. Ct. 2361; 201 L. Ed. 2d 835. (citing Reed v. Town of Gilbert, 576 U.S. ____.)  See also Riley v. National Federation of the Blind, 487 U.S. 781, 798 (1988); see also Miami Herald Publishing Co. v. Tornillo,  418 U.S. 241, 256 (1974) (statute compelling speech held unconstitutional).

 

3. De jure Discrimination. 

 

Ultimately, the masking of the true intent of IL HB4221 amounts to de jure discrimination, meaning “discrimination codified and enforced by law.” Analogous to Jim Crow laws in the South, the pro-abortion movement continues to attempt to find loopholes in the current court decisions upholding the rights of pregnancy help centers to accomplish its ultimate goal—to regulate pregnancy help centers out of existence.

 

II. IL HB4221’s “findings” cannot be substantiated

 

Illinois House Bill 4221 makes claims about pro-life pregnancy help centers that cannot be substantiated, and, more telling, have proven to be entirely false.

 

Section 5 (a)(3) claims that “Crisis Pregnancy Centers have a history of targeting vulnerable women with misleading ads and providing them with false and medically inaccurate information.”

 

The pro-abortion movement, however, cannot provide any unbiased data to prove this accusation. Pro-life pregnancy help centers have proven to be highly professional organizations where clients are provided accurate information on pregnancy, prenatal and parenting education, and information on abortion risks and alternatives. Often pregnancy help centers are the only community organization where a woman can obtain, at no cost, an obstetrical ultrasound to confirm a pregnancy. Furthermore, women are overwhelmingly satisfied with the care they receive at pregnancy help centers. In 2020, the last year client satisfaction was studied on a national level for over 2,000 pregnancy centers, on average 99 percent of clients reported having had a positive experience at their pregnancy help center.vii

 

Section 5(a)(4) claims that “Crisis Pregnancy Centers rarely employ licensed medical practitioners.” Data from 2019, however, indicates that pregnancy help centers are staffed by 68,832 staff and volunteers, over 10,000 of whom are physicians, nurses, sonographers, physician assistants, and other healthcare professionals.viii

 

If the State of Illinois is truly concerned about “protect[ing] the health, safety, and welfare of pregnant women” [the bill’s stated purpose], they should listen to those women. Long-term data collected from client exit interviews by one national network association, Care Net, demonstrates 97 percent positive client satisfaction on average per center by women and men clients for the past 13 years.ix As noted above, in 2020, the last year this outcome was studied for over 2,000 pregnancy centers, on average 99 percent of clients reported having had a positive experience at their pregnancy center.x

 

The true nature of the bill is also shown in the lack of response to proven egregious malpractice in the Illinois abortion industry. Notably, there is no documented case of a woman being harmed by a pro-life pregnancy help center in Illinois. Conversely, at least one woman died as the result of an abortion performed at Planned Parenthood’s flagship clinic in downtown Chicago. Tonya Reaves, a 24-year-old mother and bride-to-be, bled to death in 2012 after the Planned Parenthood abortionist perforated her uterus. Planned Parenthood waited four hours before calling an ambulance.xi When she arrived at the hospital it was too late to save Tonya.  Illinois did nothing in response to this tragedy.  Currently, there are no laws regulating the health and safety standards of abortion providers in Illinois.xii

 

Based on all the above, one can only conclude that  IL HB4221 is not a measure to “protect the health, safety, and welfare of pregnant women,” but instead a politically motivated attack against organizations holding a pro-life viewpoint.

 

III. IL HB4221 Violates the Equal Protection Clause of the Fourteenth Amendment 

 

Along the same vein, the proposed legislation violates the rights of pro-life pregnancy help centers provided under the Equal Protection Clause of the Fourteenth Amendment of the Constitution by failing to regulate similar organizations and organizations with differing ideologies, such as abortion clinics or family planning organizations. Such organizations are not subject to regulation or punishment for deceptive advertisements they might provide. Likewise, there are many companies and organizations that discuss medical issues with customers and clients that are not subject to the regulations of the bill, such as GNC stores, pharmacies, and Weight Watchers.  Such regulatory underinclusiveness is a strong indication that the proposed legislation’s purpose is merely to subject pro-life pregnancy help centers that oppose abortion to heightened regulation.  See Carey v. Brown, 447 U.S. 455, 465 (1980) (underinclusiveness of a picketing statute undermined state’s claim of interest); Florida Star v. B.J.F., 491 U.S. 524, 542 (1989) (Scalia, J., concurring in part and in the judgment) (content-discriminatory law unconstitutional because it was underinclusive).

 

1. IL HB4221 Seeks to Punish Unlicensed Pro-life Pregnancy Help Centers While Not Providing Them a Licensing Option.

 

IL HB4221 requires certain pro-life pregnancy help centers to display a notice on-site and disclaimer in all its “advertising” disclosing that they are not a licensed medical facility.  This is required under the pain and penalty of unlimited fines that could be crippling to a nonprofit organization.  Illinois, however, does not actually offer licensing for organizations meeting the definition of a “limited services pregnancy facility” under IL HB4221 – which by the bill’s definition provide “obstetric ultrasound, obstetric sonograms, or prenatal care for women.” The only licensure requirement for sonographers is placed on those who “apply ionizing radiation to human beings.”  Ill. Admin. Code tit. 32 §§ 401.10,  401.30.   Standard ultrasound technology for prenatal sonograms does not use ionized radiation, according to the U.S. Food and Drug Administration. xiii

 

This prompts the question, if Illinois is requiring law-abiding pro-life pregnancy help centers to display a notice and disclaimer that it is not licensed, why does it not require this of other facilities for which Illinois does not offer licensing? Or why wouldn’t Illinois simply offer licensure for pro-life pregnancy help centers?  It seems clear that the true intent of IL HB4221 is political and not genuine concern for the well-being of Illinois women.

 

IV. Constitutional Violations

 

Similar to every other law attempting to regulate pro-life pregnancy help centers, which have been rejected by legislatures or struck down by courts, IL HB4221 raises clear Constitutional concerns.  When successfully challenged in a court of law, it will result in the unnecessary waste of public resources and funds that could be used to provide for the citizens of Illinois.  The U.S. Supreme Court has already weighed in on this issue in NIFLA v. Becerra, 585 U.S.____(2018); 138 S. Ct. 2361; 201 L. Ed. 2d 835, finding that a similar California bill violated pro-life pregnancy help centers’ First Amendment freedom of speech.

 

V. Unconstitutional Viewpoint Discrimination

 

The proposed legislation is not viewpoint neutral.  As referenced above, the “findings” specifically reference “Crisis Pregnancy Centers,” which is a term historically associated only with pro-life pregnancy help organizations.

 

Courts have found that “viewpoint discrimination” is an egregious form of content discrimination and that the government must, accordingly, abstain from regulating speech when a specific motivating ideology or opinion of the speaker is the rationale for the restriction.  See Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819, 115 S. Ct. 2510, 132 L. Ed. 2d 700, 101 Ed. Law Rep. 552 (1995).   Because IL HB4221 is designed to regulate only pro-life pregnancy help centers, the proposed regulation constitutes unconstitutional viewpoint discrimination.

 

 

VI.  Freedom of Speech Violation

 

Such compelled speech triggers the First Amendment’s strict scrutiny test, under which courts will find a law unconstitutional unless it is narrowly tailored to serve a compelling state interest.

 

The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits laws that abridge the freedom of speech. When enforcing this prohibition, our precedents distinguish between content-based and content-neutral regulations of speech. Content-based regulations “target speech based on its communicative content.” NIFLA v. Becerra, 585 U.S.____(2018); 138 S. Ct. 2361; 201 L. Ed. 2d 835. (citing Reed v. Town of Gilbert, 576 U.S. ____.)  See also Riley v. National Federation of the Blind, 487 U.S. 781, 798 (1988); see also Miami Herald Publishing Co. v. Tornillo,  418 U.S. 241, 256 (1974) (statute compelling speech held unconstitutional).

 

The U.S. Supreme Court has made it clear that freedom of speech includes both the right to speak and the right “not to speak.”  See Wooley v. Maynard, 430 U. S. 705 (1977).

 

The Court also is concerned about allowing states too much discretion in deciding what is and what is not free speech, “States cannot choose the protection that speech receives under the First Amendment, as that would give them a powerful tool to impose ‘invidious discrimination of disfavored subjects.’” NIFLA v. Becerra, 585 U.S. ___ (2018); 138 S. Ct. 2361; 201 L. Ed. 2d 835 (citing Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 423–424, n. 19 (1993).  Furthermore, “Speech is not unprotected merely because it is uttered by ‘professionals.’” NIFLA v. Becerra, 585 U.S.____(2018); 138 S. Ct. 2361; 201 L. Ed. 2d 835.

 

“[T]he government, even with the purest of motives, may not substitute its judgment as to how best to speak for that of speakers and listeners; free and robust debate cannot thrive if directed by the government.”  Riley v. National Federation of Blind of N. C., Inc., 487 U.S. 781 (1988).   In this context, government action restricting speech must meet the highest standard of scrutiny: it must be narrowly tailored to serve a compelling state interest. See, e.g., Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 655 (1990); Shelton v. Tucker, 364 U.S. 479 (1960) (emphasis added).

 

1. IL HB4221 fails to serve a compelling state interest, thereby failing to meet the requirements to pass the strict standard level of review

 

The stated purpose of the bill is “[t]o protect the health, safety, and welfare of pregnant women.” The bill articulates no other purpose or interest.  Regulation of advertising and disclosure of licensing status fail to amount to a “compelling state interest.” Consider these examples of interests that the U.S. Supreme Court has recognized as compelling:

 

  • upholding military conscription laws, Gillette v. United States, 401 U.S. 437 (1971);
  • prohibiting racial discrimination, Palmore v. Sidoti, 466 U.S. 429 (1984) and Bob Jones University v. United States, 461 U.S. 574 (1983);
  • maintaining the tax system, Hernandez v. Commissioner, 490 U.S. 680 (1989);
  • winning wars, Texas v. Johnson 491 U.S. 397 (1989);
  • prohibiting child pornography, Osborne v. Ohio, 495 U.S. 103 (1990); and
  • protecting voters from intimidation at the polling place, Burson v. Freeman, 504 U.S. 191 (1992).

 

Illinois will be hard-pressed to argue that regulating advertising and disclosing licensing status amounts to an interest important enough to be considered “compelling” under the strict scrutiny test when compared to the interests articulated in other cases.  In fact, the U.S. Supreme Court recently found that California’s interests expressed in a similar bill failed to arise to even the lesser level of “substantial interest,” which is required for the lower “intermediate scrutiny” standard of judicial review. NIFLA v. Becerra, 585 U.S.____(2018); 138 S. Ct. 2361; 201 L. Ed. 2d 835.

 

Additionally, the fact that the proposed legislation is designed to regulate only pro-life pregnancy help centers (as discussed above) also “suggests that the government itself does not see the interest as compelling enough to justify a broader statute.”  Eugene Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U. Pennsylvania L. Rev. 2417 (1997); see also City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989); City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 450 (1985) (law’s underinclusiveness indicated that its true purpose was something else).

 

2. IL HB4221 is not “narrowly tailored,” thereby failing to meet the requirements to pass the strict scrutiny standard of review. 

 

To meet the second prong of the strict scrutiny standard, Illinois is obligated to demonstrate that the law is “narrowly tailored.”  IL HB4221 fails to meet this prong.  Similar to the California legislation at question in the NIFLA case, IL HB4221 is “wildly underinclusive.” NIFLA v. Becerra, citing Brown v. Entertainment Merchants Assn., 564 U. S. 786, 802. In NIFLA, the Supreme Court noted that the legislation in question “applies only to clinics that have a ‘primary purpose’ of ‘providing family planning or pregnancy-related services.’” Similarly, here, IL HB4221 applies only to a “limited service pregnancy facility.”

 

Like California, Illinois can resort to other options, such as engaging in a public information campaign. See NIFLA v. Becerra, 585 U.S. ______(2018);  138 S. Ct. 2361; 201 L. Ed. 2d 835.

 

Instead, IL HB 4221 allows unlimited legal actions against pro-life pregnancy help centers.

 

Accordingly, IL HB4221 will necessarily violate the First Amendment and is unlikely to achieve success on the merits when it is challenged in a Court of Law.

 

3. IL HB4221 Fails to Meet Even a Rational Basis Standard of Review

 

IL HB4221 fails to even meet the standards of the rational basis review test, the lowest level of review for Constitutionality. “To pass the rational basis test, the statute or ordinance must have a legitimate state interest, and there must be a rational connection between the statute’s/ordinance’s means and goals.”xiv As noted above, IL HB4221’s findings cannot be substantiated, and the state cannot demonstrate either a legitimate state interest or a rational connection between IL HB4221’s goals and any legitimate state interest. Further, the discriminatory and politically motivated language suggests that IL HB4221, may even serve an illegitimate purpose for government.

 

VII. Due Process Violations

 

The proposed legislation also presents serious due process concerns. The language of IL HB4221 is vague and ambiguous. In order to be constitutional, statutes challenged as vague must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited and provide explicit standards for those who apply the statute in order to avoid arbitrary and discriminatory enforcement. See Upton vs. S.E.C., 75 F.3d 92, Fed. Sec. L. Rep. (CCH) ¶99011 (2d Cir. 1996); U.S. v. Wunsch, 84 F.3d 1110 (9th Cir. 1996); Smith v. Avino, 91 F.3d 105 (11th Cir. 1996).

 

Certain critical terms remain undefined: notably, “advertising material” and “private party.” Additionally, the requirements of the bill could make it impossible for a pro-life pregnancy help center to comply.  The notice required of IL HB4221 is as follows:

 

“This facility is not licensed as a medical facility by Illinois and has no licensed medical provider who provides or directly supervises the provision of services.”

 

This disclaimer must be provided on-site and in all “advertising” in the following format:

 

“(i) a larger point type than surrounding text;

(ii) in contrasting type, font, or color to the surrounding text of the same size; or

(iii) set off from the surrounding test of the same size by symbols or other marks that call attention to the language of the notice.”

 

Without defining “advertising material,” pro-life pregnancy help centers are left to speculate as to whether the disclaimer would need to be included on business cards, small pamphlets, yellow page advertisements, church bulletins, online media, or other pieces of material where it may be impossible to abide by the requirements due to space limitations, thereby rendering it impossible for pro-life pregnancy help centers to produce the necessary marketing materials. The on-site distribution requirement is even more problematic for pro-life pregnancy help centers in counties where more than 10% of the population speaks a language at home other than English.  In this situation, IL HB4221 requires the notice to be written in “such other language,” written in no less than 80pt font. In Cook County alone, 35.3 percent of households speak a non-English language at home.xv For an example of what this disclaimer would look like for pro-life pregnancy centers in Cook County, see Appendix A, which spans 5 pages using the size of 11 by 17 required under IL HB4221.

 

Despite being vague and ambiguous, IL HB4221 potentially imposes impossible requirements on pro-life pregnancy help centers by empowering the Illinois Attorney General and private parties to bring action against pro-life pregnancy help centers, with unlimited potential fines of “$500 for a first offense and $5,000 for each subsequent offense.”  Such fines could cripple worthy nonprofits, who are providing care to women at little or no cost to Illinois. Because “private party” also is undefined, IL HB4221 creates an unlimited pool of potential plaintiffs, who do not need to be a client, or have any connection whatsoever to the pro-life pregnancy help center.  Surely, this will result in a green light for any individual who opposes the pro-life viewpoint of pregnancy centers to bring unlimited actions to freeze their advertising, disrupt their operations with frivolous legal actions, or bankrupt them altogether.

 

 

This concern is amplified by the fact that the power to bring legal action against pro-life pregnancy help centers lies solely with the Attorney General and undefined private parties, and not the pregnancy help center clients themselves, who overwhelmingly report high levels of satisfaction.xvi

 

 VIII.  IL HB4221 Improperly Infringes on Federal and State Rights of Conscience Protections

 

IL HB4221 improperly infringes upon rights-of-conscience protections provided by Federal and Illinois law by targeting pro-life pregnancy help centers that oppose abortion.

 

The Federal government has long protected the rights of citizens to engage in services without compromising their religious, moral and philosophical objections to abortion, abortion referrals, and related services. See 42 U.S.C. § 300a-7 et seq. (the “Church Amendment.”); 42 U.S.C. § 238n (Public Health Service Act); and Pub. L. No. 111-117, 123 Stat 3034 (the “Weldon Amendment).

 

Additionally, the Illinois Right of Conscience Act, P.A. 90-246, eff. 1-1-98, recognizes that:

 

[P]eople and organizations hold different beliefs about whether certain health care services are morally acceptable. It is the public policy of the State of Illinois to respect and protect the right of conscience of all persons who refuse to obtain, receive or accept, or who are engaged in, the delivery of, arrangement for, or payment of health care services and medical care whether acting individually, corporately, or in association with other persons; and to prohibit all forms of discrimination, disqualification, coercion, disability or imposition of liability upon such persons or entities by reason of their refusing to act contrary to their conscience or conscientious convictions in providing, paying for, or refusing to obtain, receive, accept, deliver, pay for, or arrange for the payment of health care services and medical care. It is also the public policy of the State of Illinois to ensure that patients receive timely access to information and medically appropriate care.

 

As stated above, the policy of Illinois is to protect people and organizations holding conscience viewpoints, and to protect them from discrimination and the “imposition of liability” for acting within their conscience convictions. Clearly, IL HB4221 runs contradictory to the Illinois Right of Conscience Act.

 

IX. IL HB4221 Is Ideologically Driven by Politically Charged Individuals’ Misuse of a Government Actor and Is Outside the Jurisdiction of Illinois.

 

Pro-abortion advocates, such as NARAL Pro-choice America, have been the primary proponents of this legislation. The abortion debate is better suited for the public square without abortion advocates enlisting a government actor to needlessly harass pro-life charities. This is a misuse and abuse of the resources of the State of Illinois and is outside its jurisdiction and proper functions. Neither pro-abortion proponents nor the State of Illinois have demonstrated a need for the proposed legislation.  Rather, the proposed legislation is designed to emphasize an ideological bias that pro-abortion advocates have regarding pro-life pregnancy help centers. Due to the strong likelihood of the bill being challenged and struck down in a court of law due to the Constitutional concerns, Illinois should protect its resources now before costly litigation ensues.

 

As all these factors demonstrate, putting “lipstick on a pig” can neither cure the myriad of Constitutional and other problems posed by IL HB4221, nor can it convince knowledgeable people that it is anything more than another flagrant attempt by abortion advocates to regulate organizations with proven track-records of effectively serving women facing pregnancy decisions.

 

 

Jeanneane Maxon, J.D., is an associate scholar at the Charlotte Lozier Institute

 

 

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