New York lawmakers always find new ways to promote abortion. As the legislative session mercifully approached its end, they passed a package of bills designed to enhance New York’s already-secure status as the Abortion Capital of America.
Most of the bills are purely performative. They purport to protect abortionists from the effects of other state laws that are more protective of unborn children. It’s really politics as theater, designed to help incumbents—especially the governor—who are facing primaries and re-election campaigns this year.
But one of the bills is particularly important and dangerous. It directs the Commissioner of Health to carry out a “study” of pro-life pregnancy centers. The stated purpose of the study is “examining the unmet health and resource needs facing pregnant women in New York and the impact of limited services pregnancy centers on the ability of women to obtain accurate, non-coercive health care information and timely access to a comprehensive range of reproductive and sexual health care services.”
In reality, the bill is all about intimidating and eliminating any competition to the abortion industry. It is the latest manifestation of the nationwide effort to stigmatize pro-life pregnancy centers as deceptive.
You can see the bias right way, in the use of the term “limited service pregnancy centers” to refer to pregnancy centers that offer pro-life options. That’s interesting language. Aren’t all abortion clinics “limited service pregnancy centers”? They don’t provide pre-natal care or any other kind of pregnancy care—all they do is stop pregnancies. But they’re exempt from the study. That language clearly shows that the result of the study is a foregone conclusion.
Since the devil is always in the details, let’s look at the bill itself.
Who Is Covered by the Bill?
The first major question is who will be covered. The bill is awkwardly drafted, but it is certain that the typical-model pregnancy centers would fall within the bill’s scope. All are “facilities” or “entities” that have the “the primary purpose . . . to provide services to clients who are or may be pregnant,” and none “provide or refer for the full range of comprehensive reproductive and sexual health care services” (which includes abortions). This puts your typical pregnancy center directly in the crosshairs.
The bill may also reach beyond the traditional pregnancy center model. The key terms in the definition are “entity” and “primary purpose.” With a broad reading of those terms, a component program of a large organization might be included, if the program has the specified “primary purpose.” So, for example, a maternity-services department of a Catholic Charities agency might be considered an “entity” for the purpose of this bill, since its primary purpose is to serve clients who may be pregnant.
The bill explicitly exempts “a health care facility licensed by the state,” which would exclude organizations with state licenses, such as Planned Parenthood centers. We don’t see any interest in studying or inspecting abortion clinics.
Interestingly, the bill also exempts “a facility or entity providing services under the direction of a health care provider . . . acting within his or her scope of practice.” This might exclude medical-model pregnancy centers, which are becoming more popular.
How Broad Will the Study Be?
The second major question is how far the study can extend. The Commissioner of Health has very broad jurisdiction under state law and is authorized to issue and enforce subpoenas. Courts are generally very deferential to agency decisions as to the scope of their investigations and will uphold subpoenas that are reasonably related to a legitimate investigation. So the potential scope of the study could be huge.
To get a sense of how bad this could be for pregnancy centers, take a look at some of the things the Commissioner is authorized to request. Note, however, that the bill says that “this information shall include but not be limited to” the items on the list—so the scope may be much broader:
Whether the center is part of larger umbrella organizations and whether those umbrella organizations receive state and/or federal funding.
What services are provided and which services are most frequently sought.
Demographic information about women served.
Whether pregnancy centers hold themselves out to the public as medical facilities or as facilities with “comprehensive, all-options pregnancy counseling”.
Whether women seeking or accessing services are seeking comprehensive options counseling or services at medical facilities.
Whether women have experienced a delay in receiving health care, including abortion or the initiation of prenatal care, due to a visit to a pregnancy center.
The nature of information given to clients and the nature of operational manuals etc.
Information on state-certified medical professionals on staff or volunteering and whether women are informed whether there are any medical professionals on the premises.
It’s notable that there’s no interest in whether women ever have positive outcomes at pregnancy centers. And there’s no interest in finding out how many women receive the requested services or complete healthy pregnancies after visiting a pregnancy center. That’s not what this is about.
Can Pregnancy Centers Defend Themselves?
Even though pregnancy centers generally defer to regulatory agencies, courts have established some limits on their subpoena power.
Some of the categories listed above are so expansive that there may be a successful challenge on the grounds of overbreadth or unreasonableness. There was a case in New York where a court limited the scope of a subpoena to a pregnancy center because it infringed upon the staff’s First Amendment rights of free association. And subpoenas aimed at national organizations may be vulnerable to challenge because they aren’t based in New York and are thus beyond the jurisdiction of the Commissioner.
But fighting the state is very difficult. Litigation is costly and wears people out. Complying with a subpoena is also costly. It will require centers, many of which run on shoestring budgets and rely on volunteers, to accumulate and turn over voluminous documents and data and to incur huge costs.
In, sum, this bill is not a good-faith inquiry. It is designed to exhaust pro-life pregnancy centers and workers by making their work so difficult that they will go out of business.
In New York State there are over 70,000 abortions each year. Abortion is free, either through Medicaid or private insurance, and there isn’t even a co-pay. Nobody in the state lacks easy access to abortion.
But there’s never enough abortion for our state government. They continue to show so little respect for women with unplanned pregnancies that they want to prevent them from ever hearing that abortion isn’t the only choice.