The Washington PostDemocracy Dies in Darkness

Does California abortion law protect women or force clinics to deliver message they abhor? Supreme Court to decide.

Volunteers Suzanne Bulle, left, and Jackie Elardo organize baby clothes at the Informed Choices pregnancy center in Gilroy, Calif. The center gives away the clothes, diapers and other supplies to women who need them. (Nic Coury for The Washington Post/For The Washington Post)

GILROY, Calif. — The 41 words at the center of the latest Supreme Court showdown on abortion are not readily visible at Christine Vatuone’s Informed Choices pregnancy center — not reproduced as a sign on 8½ -by-11-inch paper in at least 22-point type, as California law requires, or distributed to clients in printed or digital form.

“Were you looking?” Vatuone asked with a smile, before her lawyer, Kristen K. Waggoner of the conservative legal organization Alliance Defending Freedom, spoke up.

“We’re in active litigation,” Waggoner said, referring to the law’s requirement that clinics disclose that the state provides contraceptive services and abortion for some women.

“So we’ve advised all of the centers to follow their conscience about whether to post the sign or how to deal with the issue. But we’re not disclosing whether they have a sign hanging. It makes them a target” for possible prosecution and fines.

Vatuone’s pregnancy center and others like it will be at the Supreme Court next week arguing that California’s law is a violation of their free-speech rights. They claim the legislature’s attempt to counter “fake” clinics that trick women looking for abortion services forces centers like theirs to deliver a message antithetical to their mission: encouraging women to carry on their pregnancies rather than end them.

“As a private, nonprofit organization,” Vatuone said after giving a visitor a tour of her state-
licensed facility, “we don’t want to be compelled to, in essence, advertise for the abortion industry.”

The case is closely watched, and not just by the 200 crisis pregnancy centers in California and the thousands around the country.

If the court rules broadly against the government’s ability to have centers deliver its message, some abortion rights supporters wonder whether the same reasoning could work in their favor in other cases. They might challenge dozens of state laws that require doctors and others to deliver certain information to women about the alleged dangers that accompany abortion.

Such a turn, said Nancy Northup, president of the Center for Reproductive Rights, “would be ironic.”

California cites Supreme Court precedent upholding those abortion language requirements in contending it is requiring the clinic to deliver only a neutral and factual message:

California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [phone number].

The message “doesn’t move in one direction or another on the political spectrum,” either in encouraging abortion or discouraging it, California Attorney General Xavier Becerra, who is defending the law, said in an interview.

“We were trying to figure out the way to best get information to people about their health-care options and their rights,” Becerra said. “And this is a pretty straightforward way — neutral way — of getting that information to women.”

Abortion rights advocates say the notice might be the only indication that the center a woman is entering does not offer the very services she might want: contraception, if it turns out she is not pregnant, or abortion, if she is.

“They are facilities that intentionally prey on women at a vulnerable moment in their lives by pushing medically inaccurate information,” said Ilyse Hogue, president of NARAL Pro-Choice America. “They purposely and actually quite strategically hide any indication of their real agenda and ideology, and that’s how even women who are doing their research end up at places they don’t want to be.”

A second part of the law requires an unlicensed clinic to post a sign stating clearly that it is “not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.”

That part of the law does not affect Informed Choices, a cheerful spot in a nondescript office building near downtown Gilroy, across from a Catholic church and next to a Jack In The Box fast-food restaurant.

But its understated appearance does not reflect its prominence in town.

Google “pregnant Gilroy, Ca,” and the first three hits are for Informed Choices.

Google “abortion Gilroy, Ca,” and it is one of two recommended centers, along with Planned Parenthood.

That despite the fact that ­Vatuone’s clinic does not offer abortion or refer women who might be in a “crisis pregnancy,” a term Vatuone dislikes.

“We like to say they’re in an unsupported pregnancy,” she said. “Because they might be lacking medical insurance. So this is a place they could come. They could be married and have three children. They may lack financial resources. . . . But they are not all in a crisis by any means.”

There’s no pretense that the clinic’s purpose is to persuade those who come in “abortion-minded,” as Vatuone put it.

The clinic’s website says it will help women “verify” they are pregnant with a free test, “confirm” how far along they are in their pregnancies with a free ultrasound exam and “decide” on their options.

Abortion is listed as one of those options, but it is only at the end of the descriptions of surgical and medical abortions — and their potential side effects — that there is a disclaimer: “Although Informed Choices does not provide or refer for abortion, we are committed to providing you with everything you need to make an informed choice.”

The clinic itself has a room filled to overflowing with diapers, baby clothes, maternity clothes and other supplies that are free to women. The ultrasound room features a $32,000 piece of equipment where registered nurse Debbie Whittaker encourages exams for women whose pregnancy tests are positive.

When a reporter requested to visit a clinic that is part of the National Institute of Family and Life Advocates, which brought the suit against California, Informed Choices was offered. The workers at the center deny they use the pressure tactics alleged by abortion rights advocates elsewhere.

In a recent conference call with reporters, those advocates described deception and no-holds-barred tactics to prevent women from obtaining abortions.

In briefs filed by women’s groups and cities such as Los Angeles and New York, there are descriptions of centers that open in the same buildings as abortion clinics and station workers outside to intercept women seeking the procedure.

The briefs cite ultrasound exams conducted by workers with no medical training who proclaim “the baby healthy and perfect.” Some women said tests results were delayed until it was too late for them to receive abortions.

“Frankly speaking, the fact that we even had to pass a law that made it harder to lie to women about medical care is ridiculous,” said Nourbese Flint, policy director of Black Women for Wellness. “We all know if this wasn’t about abortion, it would be a non-issue.”

While laws in Baltimore and other jurisdictions have been struck down, a unanimous panel of the U.S. Court of Appeals for the 9th Circuit found California’s act sound and constitutional.

“California has a substantial interest in the health of its citizens, including ensuring that its citizens have access to and adequate information about constitutionally protected medical services like abortion,” wrote Judge Dorothy Nelson.

She said it made sense for the information to be displayed at pregnancy centers: “Many of the choices facing pregnant women are time-sensitive, such as a woman’s right to have an abortion before viability.”

But the centers responded in their brief to the Supreme Court that “forcing a pro-life group to advertise for abortion has to be unconstitutional.”

They said the law violates two “cardinal First Amendment principles: it targets disfavored speakers and compels them to deliver the state’s message. And it does so in the context of speech on a subject where there is profound moral and ideological disagreement.”

The Trump administration took a middle-of-the-road position.

The sign provision at licensed centers is unconstitutional, Solicitor General Noel J. Francisco told the court, because there are “multiple alternative potential ways” the state might make known the availability of its services other than requiring the centers to spread the word, “including advertising state-sponsored services itself.”

But Francisco said the part of the law targeting unlicensed centers should be upheld. California “has a strong interest in ensuring that women know whether services such as ultrasounds and sonograms are provided by licensed medical professionals,” he wrote.

Waggoner, the lawyer representing the National Institute of Family and Life Advocates, said the law forces centers “to say what they are not, before they say what they are.”

On her walls, Vatuone likes to say, she posts “Our Promise.” It says women will not be pressured or lied to, that their privacy will be respected and they will be supported in the choice they make.

There is no reason to post the state’s message, she said. “Every woman who walks through our doors knows that abortion is available to her,” she said. “The case is really more about us being compelled, against our deeply held beliefs, to disseminate this information.”