Challenging Fake Abortion Clinics: Protecting Women’s Privacy Interests without Violating the First Amendment
In the years after the Supreme Court legalized abortion, anti-abortion groups have remobilized and have developed new, aggressive tactics to prevent women from exercising their constitutional right to end their pregnancy. Realizing the difficulty of changing the law in the near future, these groups have instead focused on stopping individual abortions, feeling that they are “saving lives.” Their tactics have included picketing, frightening and intimidating women from entering abortion clinics, and, at times, bombing clinics.
Another new tactic is the establishment of “fake abortion clinics.” These are anti-abortion counseling centers which advertise in a manner that would lead a pregnant woman or girl to believe that they provide a full range of women’s health services when, in reality, they provide only a pregnancy test, accompanied by intense anti-abortion propaganda. Women who are victimized by these centers may feel severe psychological distress:
I was extremely distraught and confused and I left [the center] shortly thereafter. I began questioning my own sanity and did not know where to turn.
When I left the Help Clinic I was extremely upset. I was depressed and shaken, and drove around for a long time crying. I found the experience incredibly distressing and infuriating. I felt I had been tricked into watching the anti-abortion slide presentation when [the counselor] was well aware that all I wanted was objective information which she was not willing to give me.
The impact of fake abortion clinics has been staggering. Between 2,000 and 3,000′ such anti-abortion counseling centers are scattered widely throughout the United States, from New York to Florida, to South Dakota, Texas and California. In a single center in Fort Worth, Texas, over 1,090 women entered during a seven-month period. However, despite their profusion, only a handful of fake abortion clinics have been challenged by either private parties or by state attorneys general.
Fake abortion clinics pose new legal dilemmas; to date there has been little case law or research on the subject. Discussion about fake abortion clinics presents preliminary problems of nomenclature; a term or terms must be chosen to describe the nature of the interests at stake in a fake abortion clinic case. The “clinics” defraud, but more particularly, they interfere with women’s ability to make free and informed choices in matters concerning procreation and bodily integrity.
A constitutional privacy analysis does not apply in fake abortion clinic cases because the federal constitutional right to privacy is a guarantee against only government action or inaction. Nevertheless, judicial recognition of the importance of privacy interests made in the context of constitutional analysis informs our understanding of what personal interests are worthy of protection. In a constitutional context, the right to privacy has been deemed to be fundamental to the functioning of a free, autonomous society. This reasoning should be applied when one individual infringes upon the privacy interests of another individual. Thus, this Note will refer to the interests to be protected in a fake abortion clinic case as “fundamental privacy interests,” adopting the nomenclature of Roe v. Wade, and other constitutional analysis. This does not imply a constitutional cause of action when government conduct is not present. Rather, it suggests that certain privacy interests are so important to the functioning of society that they must be protected, even in a nongovernmental context.
This Note presents three arguments. First, state attorneys general should vigorously challenge fake abortion clinics under their states’ unfair and deceptive business practice statutes, using the discretionary authority conferred on them directly by state statutes. Because fake abortion clinics may effectively undermine women’s interests in making reproductive choices, state attorneys general are obligated to make such changes. This Note does not deny women’s capacity to make independent, informed decisions about abortion; rather, it asserts that deceptive practices and inequalities in bargaining power found in fake abortion clinic scenarios unlawfully interfere with women’s ability to make these type of decisions.
Second, this Note argues that state statutes which prohibit the deceptive practices of fake abortion clinics do not violate the first amendment’s protection of free speech. The argument adopts much of the reasoning employed by the North Dakota Supreme Court, the only state supreme court to fully consider this constitutional issue.
Third, although victims of fake abortion clinics should succeed understate deceptive business practice statutes, the progress could be uncertain due to the varying strength and capability of enforcement provisions from state to state. Moreover, because these state actions need not explicitly recognize women’s interests in reproduction choice, they may not deter the infringement of such interests. Thus, the federal government should adopt legislation specifically proscribing the deceptive behavior of fake abortion clinics and shouldalso provide efficient enforcement mechanisms. While passage may be difficult, such legislation could solve many of the problems posed by state legisla-tion and would best protect women’s privacy interests. As in the case of state statutes, such federal legislation can be fashioned without violating the first amendment.
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