N.Y. Prolifers See Partial Victory

Crisis pregnancy centers in New York are claiming a victory in round one in the state’s latest legal battle over abortion.

New York Attorney General Eliot Spitzer said Thursday, February 28, he is withdrawing the subpoenas that he issued in January. The subpoenas demanded that crisis pregnancy centers turn over reams of information about their operating procedures to determine whether the centers have engaged in “false advertising and deceptive business practices” and the unlicensed practice of medicine.

The subpoenas covered 24 pregnancy centers and also demanded the names of all staff members, their credentials, training materials, promotional information, and all policies relating to client referrals.

Attorneys for the centers recently filed petitions to quash the subpoenas in seven separate state courts. They argue that the attorney general lacks evidence and is attempting to regulate non-commercial speech and the right to free association, protected under the Constitution. They say that Spitzer’s legal actions stem from his close ties with the abortion-rights movement.

“We hope this outcome in the abortion capital of the United States sends a clear message nationwide that Pregnancy Resource Centers will no longer allow their First Amendment rights to be trammeled,” chief litigation counsel Nathan Adams of the Christian Legal Society said in a statement. Adams is representing five of the subpoenaed centers and three national parent organizations.

“This is an unexpected victory for the crisis pregnancy centers and for the First Amendment,” says Vincent McCarthy, senior counsel of the American Center for Law and Justice, which represents one of five pregnancy centers targeted by the attorney general.

Spitzer spokesman Darren Dopp says the move is designed to foster out-of-court settlements that the attorney general hopes to reach with the centers. But while one of the subpoenaed CPCs—Birthright of Victor New York, Inc.—has agreed to terms, other centers say they are not interested.

“The attorney general preyed on the smallest CPC in the state and got them to cave on severe restrictions of their First Amendment rights,” says Expectant Mother Care (EMC) founder Chris Slattery, whose five centers are under investigation. “This is the most restrictive set of regulations on a CPC’s operations ever established.”

The agreement requires Birthright to inform those who inquire about abortion that:

The organization does not provide abortions or abortion referrals.
It must disclose verbally and in writing that it is not a licensed medical provider qualified to diagnose pregnancy.
Its advertising must state that its pregnancy tests are self-administered, and it must tell those who call or visit that it is not a medical facility.

Dopp says the agreement is closely modeled on consent decrees that two previous New York attorneys general reached with CPCs, decrees that outlined how the centers should conduct their operations.

Slattery, whose centers are being represented by the ACLJ, says the settlement will “turn off most abortion-minded women” from visiting CPCs. “They don’t want us counseling women out of an abortion, period.”

But Slattery and other CPC directors say this is exactly what their centers do. They are so successful that they have become the “effective competitors of abortion clinics.”

Alleged DeceptionOther centers under investigation include those operated by Care Net, Heartbeat International, and the National Institute of Family and Life Advocates (NIFLA). The centers offer free commercially available pregnancy tests and counseling, childbirth and parenting classes, and medical referrals.

Adams says that Spitzer’s office wants CPCs to publish additional disclaimers in their advertisements stating that they do not perform abortions.

Care Net General Counsel Kurt Entsminger says that in addition to advertising under “Abortion Alternatives” in the phone book—which is required by law—every new client who walks into a Care Net center is asked to sign a “Limitation of Services” form. The form states, in bold capital letters, that the center does not offer abortions or referrals. “We don’t know how our centers could make it any more clear to clients that we don’t offer abortion services,” says Entsminger.

However, not all centers follow the same guidelines or practices. A source affiliated with one center under investigation told Christianity Today, “The bottom line is, we do get people in here who think we do abortions. We don’t feel compelled to be so explicit [on the phone] that the majority of women would hang up on us.”

Other CPC organizations say they do not look favorably on such behavior. “Deception is never something we condone,” says NIFLA President Thomas Glessner. “Ambiguity creates problems, and centers should not engage in it.”

Dopp says the attorney general has strong “indications that some centers have misled women” by misrepresenting their services, and have violated previous consent degrees prohibiting pregnancy testing and “the diagnosis of pregnancy.” Defenders call the claim ludicrous.

“They want to claim that free pregnancy tests constitute the unauthorized practice of medicine,” says Adams.

Political Paybacks?Supporters of the centers say the legal offensive is politically motivated, citing Spitzer’s close ties with abortion-rights groups. McCarthy of the ACLJ called the investigation “a campaign to disrupt, discredit, and harass the pro-life counseling centers in New York City.” Spitzer’s accusations mirror those of the National Abortion and Reproductive Rights Action League, (NARAL). Abortion-rights activists say crisis pregnancy centers — which they call “stealth clinics” or “compulsory pregnancy indoctrination centers”—are really front groups designed to target and intimidate abortion-minded women.

An undated 60-page NARAL booklet, “Unmasking Fake Clinics,” instructs activists to visit centers while pretending to be pregnant and secretly to tape record meetings with staff. The booklet says information gathered should be presented to “a sympathetic state attorney general who may be persuaded to pursue an undercover investigation.” The brochure further lists one of its goals as obtaining “a court order prohibiting a CPC from engaging in unlawful practices, such as deceptive advertising or unauthorized practice of medicine.”

CPC defenders say Spitzer’s investigation and NARAL’s campaign are too similar to be unrelated—a charge Spitzer’s office denies. “There has been no communication between our office and NARAL on this topic,” says Dopp.

But center supporters say Spitzer’s enthusiastic support of NARAL suggests otherwise. They point to a January 1999 speech in which Spitzer told the group that its commitment to protecting reproductive rights “is my commitment.” Spitzer also established a tax-subsidized Unit for Reproductive Rights. Jennifer K. Brown, a former fellow in the ACLU’s Reproductive Freedom Project and a former president of NOW-NYC who coordinated NOW’s Reproductive Rights Committee, is heading the unit.

“The attorney general’s claim that this has nothing to do with NARAL is a smokescreen for a clear political agenda,” says Slattery. “This is a political witch hunt in an election year for the attorney general, who is trying to pay back Planned Parenthood and NARAL for their aggressive political support.”

NARAL did not respond to requests for comment. Spitzer, 39, is running for reelection in the fall.

A New York NARAL Political Action Committee brochure says that “NARAL/NY was central to the narrow, yet critical triumph by Eliot Spitzer in the race for Attorney General.” The brochure also quotes Spitzer, a Democrat, attributing his 1998 election to NARAL : “NARAL/NY was instrumental in my victory.

“They made a difference not only for me, but for candidates throughout the state who care about choice. NARAL/NY is an essential piece in the pro choice movement-a voice of conscience, a voice of reason and a powerful part of New York.”

“To suggest this is some type of crusade is wrong,” says Dopp. The attorney general, he adds, has evidence that Slattery’s organization used deceptive advertising to imply that their centers performed abortions.

Adams of the CLS says, “We’re going to have some face to face negotiations with the attorney general and he’ll want to use the settlement agreement [with Birthright] as a model code.”

Adams says his centers are willing to enter into discussions with the attorney general’s office, but that his clients “will reject outright” a similar settlement agreement.

In a prepared statement, McCarthy credited public awareness for the latest development. “It is clear that there has been tremendous pressure applied by the pro-life community since these subpoenas were issued. It is also clear that the subpoena was designed to intimidate our client and stifle the pro-life message,” McCarthy explained. “We are pleased that the New York Attorney General is taking the proper course of action and withdrawing the subpoenas.”

Related Elsewhere

Last Sunday, The Washington Times reported that two dozen pro-life pregnancy centers in New York were fighting back against the subpoenas.

In early February, Washington Times columnist Michelle Malkin wrote, “This fishing expedition by Mr. Spitzer’s ‘reproductive rights unit’ is an obvious attempt to drain the centers of their private funding and to scare the centers’ staffs — made up mostly of housewives, retirees, teachers and nurses.”

For similar coverage, see Christianity Today’slife ethics archive.