Alison, Liz, and Rebecca are joined by Jenifer McKenna to talk about the billion dollar crisis pregnancy center industry and its role in the anti-abortion movement. They discuss the massive harms caused by these unregulated fake clinics, Jenifer’s work on the first multi-state CPC investigation, and a new approach to exposing their unethical tactics and fighting back.
Show Notes
“Designed to Deceive: A Study of the Crisis Pregnancy Center Industry in Nine States”
Reproductive Health & Freedom Watch: Recent CPC research and analysis
Jenifer McKenna’s Ms Magazine articles
Cases
Rebecca Markert:
Welcome to We Dissent, the podcast with secular women attorneys discussing religious liberty issues in our federal and state courts and our work to keep religion and government separate. I'm Rebecca Markert with Americans United for Separation of Church and State.
Liz Cavell:
I'm Liz Cavell with the Freedom From Religion Foundation.
Alison Gill:
And I'm Alison Gill with American Atheists.
Rebecca Markert:
Today we are going to do a deep dive into crisis pregnancy centers. We've talked about these in passing during other shows, but really wanted to devote an entire show to them since they've become even more important after Roe fell two years ago. And there's actually a lot of litigation surrounding them, especially when we're looking at religious liberty issues. They often have claims involving the free exercise clause and their state ties bring up obvious church state separation concerns. CPCs are also known as pregnancy centers, pregnancy resource centers, pregnancy care centers, and even women's clinics. But whatever name they go by, they exist to convince pregnant people to not have an abortion. Oftentimes, they are religiously affiliated, though that affiliation can be hidden or really hard to find. To help us understand these organizations better and the threats they pose to reproductive rights. We're excited to be joined today by Jenifer McKenna.
Jenifer is a senior advisor at Reproductive Health and Freedom Watch, working to monitor, investigate, and expose drivers of disinformation and regressive reproductive and maternal health policy. She's the co-founder and past managing director of the California Women's Law Center. And from 2012 to 2022, coordinated the Alliance State Advocates for Women's Rights and Gender Equality, a first time collaboration of state gender law and policy centers working to advance reproductive and gender justice. Jenifer led the first multi-state investigation into crisis pregnancy centers and co-authored the 2021 report "Designed to Deceive" a study of the CPC industry in nine states. She also appeared in a documentary this year called Preconceived. She now works with public officials and advocates around the US on CPC accountability strategies and as a contributing reporter on the CPC industry for Ms Magazine. Welcome to the show, Jenifer.
Jenifer McKenna:
Thank you so much. So appreciate the opportunity to have this conversation with you.
Rebecca Markert:
We are really excited to have you on this show because you are such an expert on crisis pregnancy centers. But before we dig into that, I just kind of want to know what led you to do this type of work?
Jenifer McKenna:
When I was working with the alliance organizations over those 10 years, there was a regular drumbeat of concern about the way crisis pregnancy centers were operating in the nine states in which the five alliance law centers worked. And those legal organizations did a pretty extensive analysis of potential state causes of action for challenging deceptive advertising and deceptive practices by crisis pregnancy centers, but they mostly would've required plaintiffs and it was really difficult to identify women and teens who had been to one of these places and been harmed in a way that was obvious and demonstrable and were willing to participate in a long-term advocacy or legal strategy. So we decided that we should at least do some systemic analysis of how CPCs were representing themselves in these nine states so that we would have a fact base for public education for advocating with the state attorneys general around consumer protection strategies.
And so we could identify if there were trends across states that might lead to potential litigation strategy. As a result of that decision to do in systemic analysis, we really organized a sort a formal project, a formal investigation, look at their publicly available information websites, Facebook and other social media information advertising. And as a result of that, we partnered with a reproductive epidemiologist based in Boston. They've sort of led us in sort of formally crafting the design for this investigation and spent two years really looking at the crisis pregnancy centers in these nine states. And as a result developed this report that we released in 2021, "Designed to Deceive," which we re-released in early 2022 after the Dobbs oral argument, when it was really clear what was going to happen at the Supreme Court along with a brief alerting allies about the threat, the surveillance threat that the crisis pregnancy industry poses in particularly post Dobbs US. So that's one of the issues we dealt with in the report and it's become a more pressing issue since Dobbs.
Rebecca Markert:
So let's back up just a little bit, and I described very cursory what a crisis pregnancy center is, but could you describe them a little more in detail and the history of how they came to be, what kind of services they provide?
Jenifer McKenna:
Yes, as you said, they're actually overwhelmingly religious organizations, nonprofits that seek to reach low income people facing unintended pregnancies to prevent them from accessing abortion and also contraception. So I think it's really important for your listeners to understand the crisis pregnancy center agenda goes way beyond abortion. They are committed to proselytizing around traditional gender roles as well as preventing people from accessing reproductive healthcare. They brand, as you said, Rebecca, as pregnancy resource centers and even women's health clinics inside the anti-abortion movement. They call themselves pregnancy ministries. They typically provide pregnancy tests, increasingly provide ultrasounds, first trimester ultrasounds, which is not a standard of care by the way. STI tests, counseling, and diapers and other material goods for babies and maternity care. They're not regulated by state or federal health agencies despite the fact that they claim to provide health services. And our side is recently more and more branding them as anti-abortion centers, and I think that it serves a certain function, but it also misses their broad agenda and their increasing claim to be actual healthcare providers and legitimate healthcare providers.
They are, in fact, I think the mass retail facing backbone of the pro-life movement, pro-life movement, the ground game of the anti-abortion movement. They provide PR and branding that softens the image of the movement, which is not so great now as more and more horror stories are coming out post Dobbs. They are the biggest sector of the anti-abortion movement in terms of mobilizing volunteers and radicalizing volunteers. They're collecting and storing massive amounts of personal identifying and private health information from pregnant people, and they really are operating as political entities helping to support and seed regressive reproductive health strategy and policy. I'll give you a couple quick examples of that. They are anti-abortion groups. They promote disinformation about contraception as well. So they're participating in this broader campaign. We're seeing now to discredit birth control, particularly hormonal birth control, to claim that IUDs and emergency contraception are actually forms of abortion. And they are an anti-abortion movement for promoting medical disinformation about all reproductive healthcare, stigmatizing abortion and contraception in particular.
Alison Gill:
You didn't mention one thing, Jenifer, don't they also hold a lot of the wealth of the anti-abortion movement compared to the anti-abortion advocacy groups and such? They represent a huge portion of the funding. Is that right?
Jenifer McKenna:
That's right. Looking at the various dimensions of the anti-abortion movement, the crisis pregnancy center industry piece accounts for the vast majority of funding coming into the movement. We actually, Reproductive Health and Freedom Watch, the project I'm currently working with has recently done an analysis of the available Forms 990, the IRS form that nonprofit organizations are required to provide to the IRS every year. We were able to find 990s for about two thirds of the purported crisis pregnancy centers that are operating in the country. Many of them are a part of a larger institution, so they don't file their own 990s, but the two thirds of the industry, that CPCs that we were able to locate 990s for in 2022 reported 1.7 billion with a B dollars in income and 1.5 billion with a B in expenditures. So they're both huge numbers, but it's also really critical to understand that and look at those numbers compared to what the CPC industry itself reports as the value of the services it provided in the goods and services it provided in 2022.
According to the Charlotte Lozier Institute, which is the research arm of the Susan B. Anthony Pro-Life America anti-abortion advocacy organization, 2,750 CPCs, which they say is the number in the country that reported their goods and services, they claim that those goods and services were valued at $358 million with an M. So two thirds of that number reported expenditures of $1.4 billion in 2022. And Charlotte Lozier institute is saying the value of their services with $358 million. There's no accounting for how they spent the rest of that money. And increasingly, I'm sure we'll talk about this a bit more, increasingly, states that ban abortion that also have high rates of maternal and infant mortality are funneling taxpayer dollars to this industry, to CPCs in their states why they need taxpayer dollars when they are taking in that much funding is a question that anti-abortion politicians that direct that funding to CPCs don't ask. Maybe they don't know how much funding this industry is actually taking in, but I think it's a really important question that be posed to politicians championing this industry and particularly taxpayer dollars for it.
Alison Gill:
Just as a follow-up question, if they're nonprofits and they're registered and they are also getting government funding, doesn't that trigger certain audit responsibilities that they have to meet? I'm just curious if there's any accountability through that sort of mechanism.
Jenifer McKenna:
There's no automatic accountability or audit requirements that I'm aware of. If they are there, they're being sidestepped or ignored.
Alison Gill:
I see.
Jenifer McKenna:
I know that the auditor in Pennsylvania conducted a formal audit of the network, the Real Alternatives Crisis Pregnancy Center Network, that had a state contract after whistleblower groups including Campaign for Accountability exposed really questionable spending on diversion of some of those tax dollars to outstate activity. But advocates had to really fight for that audit. And then it took years after that audit exposed fiscal malfeasance by that crisis pregnancy center network. It took years to actually get them defunded. That just happened last year. I also can tell you that there have been pro-choice lawmakers at the state level in multiple states that are funding crisis pregnancy centers that have proposed amendments to the funding bills that would require audit and or other more formal reporting and extensive comprehensive reporting on how these groups are spending the funding and what impact they're having. And those proposals have been voted down by the anti-choice politicians who are supporting the funding bills. They've been blocked time after time, after time in Florida, in North Carolina, in Texas, in other states that are funding these groups.
Rebecca Markert:
This is horrifying to hear to me. You are so correct in calling it an industry, and I have never viewed CPCs as that, but they really are a billion dollar industry that's unregulated and incredibly deceptive. When we're talking about state funding, I read that over half the states, I think there were 29 states give some sort of funding to CPCs. Is that correct in your view? And what kind of state funding are they getting?
Jenifer McKenna:
So some of the increasingly anti-choice governments in state legislatures and governors have been creating, they call alternative to abortion or some version of that title programs to fund these groups. So what we did at Reproductive Health and Freedom Watch was to investigate the legislative allocations because there's public record of a funding bill or the creation of a program, a state funding program. It's quite a challenge to track the state funding the public funding as well as the private funding. And so we were best able to track the funding that was allocated by legislatures, which I have to say has increased dramatically after Dobbs.
There are also supplemental funding bills. There are governor's budget appropriations. There are a number of avenues through which states are directing public funding, and it's a massive and granular investigative effort to map them. States are also on top of directly funding with taxpayer dollars. Many are diverting public funding through tax schemes, creating tax deductions, exemptions, and credits for people donating to crisis pregnancy centers or to the centers themselves in at least one case there's a tax exemption bill. There's multiple layers of public funding that are going to these places. Again, with really no accountability or virtually no accountability for how they're spending that money. What we found when we looked at the public funding, particularly the legislative allocations, which, and I think I mentioned this earlier, is there's a correlation between states that are diverting taxpayer dollars and states that ban or severely restrict abortion care and have high maternal and infant mortality rates.
We found that between 2021 and 2024 state legislatures allocated over half a billion dollars, $513 million to the CPC industry and then additional tax credits, deductions and exemptions on top of that. We also though found that there's mounting evidence of financial waste in this industry. As I noted, there's this huge chasm between what they report their goods and services are worth and what they're actually reporting they're spending to the IRS between and 2022, their 990s revealed a 45% increase in expenditures. While the industry only showed a 0.8% increase in new clients. So less than 1% increase in new clients since Dobbs while, and a 45% increase over the four years prior to Dobbs and including Dobbs in expenses. And again, between 2019, 2022, CPCs reported over $5.5 billion in revenue and $4.8 billion in expenditures. So it's unclear, as I said earlier, if lawmakers that are appropriating the half a billion to the industry since 2021 in taxpayer fundings are aware of the expansive and extensive private funding that these groups are receiving, the discrepancy between their reported expenditures and claim to value and the industry's history of financial waste and mismanagement. There are multiple reports of these groups failing to meet standards they themselves set. Wasting funding and mismanaging funding.
Alison Gill:
So you talked a little bit about appropriations, but I think it's the case also that the governor or agencies are also diverting money from things like in some states things like temporary assistance to needy families, TANF, things like that. Is that included in these numbers or is that in addition to them? Because that's really hard to track also. And I mean that's welfare funding. It's really essential for families suffering poverty and they're diverting it to this waste.
Jenifer McKenna:
Yes. No, no, that's absolutely right. And yes, in many cases where it's bundled, which it often is, I mean the town of funding comes to the state and then the state decides how to allocate it. So yes, and that funding does include particularly TANF. And there are also other funding streams, federal funding streams that have been taxpayer funding streams that have been going to crisis pregnancy centers. An organization called Health Management Associates released a report this summer. It was the first really careful look at the federal funding in addition to TANF that has been going to these groups in recent years. And I have to say that the anti-choice politicians at the federal level in the House in particular had really worked overtime early this year to challenge the Biden administration, the HHS proposal to cut CPCs out of eligibility for TANF funding going forward.
They don't meet any of the program requirements and the anti-abortion politicians have really been working with the PR arm of the Crisis Pregnancy Center industry, spin a narrative about how these groups are benign and helpful mom and pop local organizations providing essential support and healthcare to under-resourced pregnant women. There is absolutely no independent information study analysis data to support those claims. And the industry's own reporting, as I cited a moment ago, which shows less than a 1% increase in clients between 2019 and 2022 actually raises questions about those claims. So all to say in part that I think the CPC industry is operating as a messaging vehicle for the anti-abortion movement. And one of the things that's really concerning is that increasingly the messaging, which is also girding the argument for public funding is that they're providing healthcare, that they're quote un quote meeting addressing the problem, the crisis of maternal and infant mortality.
I mean the "Design to Deceive" study found, and this has been verified by other studies as well. They provide essentially six services. Three of them are faux medical, I would say, which is pregnancy tests, ultrasounds, and STI tests. Faux medical because pregnancy tests are often over the counter ultrasounds because they offer ultrasounds so they can show you your baby or so that you can hear the heartbeat. They give you a pregnancy test, then an ultrasound. So it's overwhelmingly their first trimester ultrasounds, which are non-diagnostic, and they're actually not recommended by ACOG or the American Institute of Ultrasound in Medicine. And then STI tests, which is a way of bringing young people in the door and scaring them about abortion. If you have an STI, you might not even have symptoms. If you have an abortion, you'll get pelvic inflammatory disease, you'll be infertile. That's the kind of messaging they're doing around STIs. They do STIs, but they don't offer treatment and many don't even offer referral for treatment. So they're the three quote unquote medical services. And then the other services are counseling, which is a biblical based anti-choice, counseling, pregnancy options, counseling, sexuality, education unquote, which is abstinence only. And they provide them in schools as well.
And disinformation by contraception. And the third in that second bucket is free baby supplies, diapers, wipes. Overwhelmingly they're not free because mostly people have to participate in Earn What You Learn or Baby Bucks program where you have to watch an anti-abortion video or you have to participate in Bible study in order to earn the diapers or the wipes. So that's it. They're the six services that they provide, and the counseling they claim is increasingly providing support to women who've been trafficked and they're seeking anti-trafficking fund from HHS. And a lot of counseling around abortion, abortion regret syndrome and abortion stress syndrome. And so the fact that they're succeeding in more than 20 states in securing taxpayer funding under the guise of providing essential services, resources and actual medical care is really chilling, I think, and very concerning.
Liz Cavell:
So Jenifer, obviously the three of us in the organizations we work for come at this from a state church separation angle in terms of the fact that what you're describing is the thing we've been screaming into the void for years about CPCs, which is that they serve zero legitimate secular purpose. They are purpose built to trick people into receiving religious messaging and counseling about reproductive choices. And so we're just all floored that they have been able to flourish so much in the public funding space. And as you alluded to earlier, in contracting for sex education in public schools even. And we've sort of done some whack-a-mole with individual instances of that in our organizations trying to persuade individual public school districts from contracting with CPCs to do education and trying to get individual municipalities to rescind or refuse to fund or give government grants to individual CPCs. But I just wanted to sort of pick your brain and kind of talk a little bit about that specific part of CPCs that is, there's so much gross about what they're doing and even harmful. But it's also important to remind people that it's also where taxpayer funding nothing, no outcomes, harm and religion, absolute ministry, in addition to being useless in terms of public health outcomes, they're not serving any actual secular purpose. So I'm just curious sort of how that fits into the way that you think about both how they operate and the funding piece.
Jenifer McKenna:
Yeah, yeah. Well said, Liz. One of the things to also keep in mind is that the individual CPCs are not operating as independent entities. One of the things we found in the "Design to Deceive" study was that a large proportion of the crisis pregnancy centers in the nine states were looked at were formally affiliated with one or more of three biggest national anti-abortion groups that operate as CPC networks, Heartbeat International, which is a global anti-abortion, anti contraception, anti LGBTQ rights evangelical Christian organization, which is the largest network of CPCs in the country. Second one is Care Net, also very blatantly acknowledging that they're an evangelical Christian organization in anti-abortion Advocacy Group and National Institute of Family Life Advocates, NIFLA, which was formed in the nineties to provide legal support to crisis pregnancy centers around the country when there started to be some pushback by policymakers to try to regulate how they operated.
NIFLA and Carnet and Heartbeat International have all been very involved in anti-abortion litigation and NIFLA and Carnet and Heartbeat International have also been very instrumental in mobilizing crisis pregnancy centers to medicalize and appear to be medical, particularly using ultrasound and Heartbeat in particular is according to Privacy International, the organization leading the crisis pregnancy industry and utilizing the crisis pregnancy industry as a surveillance network, collecting information from women and teens seeking services, whether abortion or other, at a crisis pregnancy center, those organizations and the bigger movement supported by right-wing Christian legal organizations like Alliance Defending Freedom, which played the frontline role in overturning Roe like the American Center for Law and Policy, one of the Sekulow Brothers group that has been identified by the EU as one of the 10 most dangerous US-based organizations undermining reproductive equity and gender equity work in the EU. Becket Fund for Liberty, the Thomas Moore Society and NIFLA.
These groups are all Christian legal groups, very well funded, and they've developed a really effective strategy to brand crisis pregnancy centers as organizations deserving First Amendment protection to exercise their religious liberty and their rights for free speech and to brand them as targets and victims of government efforts to regulate them, get information from them, hold them accountable for how they treat clients. And I think that we as a movement that's concerned about separation of church and state and actual religious liberty and civil rights and reproductive rights and health have to recognize that they have actually have the upper hand now in terms of weaponizing. They're weaponizing the First Amendment to shield these groups from accountability, the lawsuits, the litigation that for the most part that's been brought and the state, the policymaking that's been enacted at the state and local level has been met with lawsuit after lawsuit claiming First Amendment protections.
And many of those cases where they've gone before a judge, they've been heard by a Trump appointed judge who has found that these groups have the First Amendment right to promote disinformation. They have a religious liberty, right to promote abortion pill reversal. And so what my project at Reproductive Health and Freedom is looking at and working with allies to do now is to try to refocus the strategy and fronts in which we think they're more vulnerable and less likely to be able to mount a real straight-faced First Amendment defense. They're accessing a public funding without accountability for how they're spending it, their claims to be medical without having to operate under any of the regulations governing real healthcare providers and their deceptive data practices, data collection practices and privacy practices.
Alison Gill:
That's so interesting, that approach, and I think it's really important to understand where the pushback against these is moving. Could you talk for a second about abortion pill reversal? Because it's a ridiculous idea and I hear it all the time, and I think people ask why are they spreading this disinformation? What's the point of it? And just generally speaking, it's this idea that you can somehow reverse medication abortion. Is that fair to say?
Jenifer McKenna:
That's what they claim.
Alison Gill:
That's what they claim.
Jenifer McKenna:
You can stop a medication abortion in process and reverse it if you administer high dose progesterone to a woman or a teen who has taken the first medication in a medication abortion mifepristone and not yet taken the second medication misoprostol, the American College of Obstetricians and Gynecologists has debunked that strenuously. There's only one controlled study that was sponsored out of UC Davis in an effort to actually assess whether those claims were true. And it had to be interrupted when a third of the women who had registered and were participating hemorrhaged and had to be hospitalized, and the researchers were not able to conclude whether the hemorrhaging was a result of the high dose progesterone intervention or just the fact that they didn't take the misoprostol, the second medication. So the only study had to be interrupted for ethical reasons. So there's no conclusive assessment by the mainstream medical organizations about whether this is actually dangerous as a practice or whether it's just dangerous to be telling people not to take the second pill.
What ACOG has done is to systematically debunk the quote medical claims and academic claims that made by the OBGYN in California who's sort of the creator of this scheme. Also note about abortion pill reversal. Two things. One is HAR International is now the organization that is in the lead in terms of promoting abortion pill reversal through crisis pregnancy centers. They have a whole website with disinformation urging people, we can save your baby. They claim 3,000 babies have been saved using abortion pill reversal, but they use that same number for years. So questionable. They claim a lot of women regret their abortion. It's all about stigma.
Alison Gill:
Is that what it's about? I'm trying to figure out why are they spreading this? How does this help them?
Liz Cavell:
It can't be true? Right, Jenifer? Obviously the claim that we've stopped reversed 3000 abortions by this can't be true or it's certainly not verifiable. And also, are they actually, yes, they're evangelizing this because procedure, but are they performing it? Do we have a way of knowing that because for the most part, that's just experimenting on human beings?
Jenifer McKenna:
Yeah, really good question. The information is overwhelmingly anecdotal because the information you get from Heartbeat International and the Crisis Pregnancy Center is PR.
Liz Cavell:
But they are saying, we're doing this. We've done 3,000 rounds of this.
Jenifer McKenna:
Right? And they say they have a network of providers of medical professionals around the country. So if you contact the Abortion Pill Rescue Network, the Abortion Pill Reversal hotline, you will be connected with a medical professional who can talk with you, advise you, and then administer the intervention. There has been no at least effective investigation that I'm aware of into what is actually going on there. But what we do know is that two things is that they're collecting data through the abortion Pill Reversal website and hotline that's sponsored by Heartbeat International that goes right into their mega database that Heartbeat International holds that crisis pregnancies centers around the country that are affiliated with Heartbeat International or not. Many of them are using a client management platform called Next Level. It was created by Heartbeat International. And so they plug information in to that website about the client that the client has provided at a visit or an appointment scheduling. And that information is all going to this database that Heartbeat International is holding the abortion Pill Rescue, abortion pill reversal website and hotline is tied into that data collection. So you have to provide certain kinds of information, personal identifying information, and I took the first, took the abortion pill.
If that's what you're calling about, or sending them a message over chat about, you're acknowledging you've already taken, what state are you in where you.
Alison Gill:
Yeah, they can go after you.
Jenifer McKenna:
So they're collecting all that information through that entity and it's Heartbeat international operating all of this. A side note on that point, which is that Elizabeth Warren actually and a number of other senators, sent a formal request to Jor-El Godsey, who's the president of the CEO of Heartbeat International after Dobbs to say, we understand that your crisis pregnancy center affiliates are collecting information. We don't believe there are any privacy protections around that. And then a series of questions, how are you protecting? What information are you collecting, what privacy protections are in place, et cetera, et cetera. Heartbeat International did not respond. First Liberty Institute responded on behalf of Heartbeat International Liberty Institute, former employer of Judge Kacsmaryk in where they filed the mifepristone FDA case anti-abortion activist, Religious Liberty Law Center represented Heartbeat International to Stonewall and essentially said, you Senators have no authority to request information and it's part of a coordinated attack including all the vandalism of crisis pregnancy centers around the country, et cetera, et cetera.
So that's how they've handled the data collection and privacy practices landscape. So my point is that the abortion pill reversal scheme is both a data collection vehicle, but mainly a stigmatizing strategy. Meant to further stigmatize people who seek abortion by creating this narrative that a lot of women start an abortion. They were coerced into it and changed their mind and we're rushing in to rescue them from that decision that they really didn't want to make. And that given the increase in importance of access to medication abortion under Dobbs, the fact that people in ban states are accessing medication abortion from out of state, they're doubling down on their strategies to counter what they claim is chemical abortion and promote disinformation about its safety and efficacy and stigmatize it.
Alison Gill:
There's also a criminalization element here that we were talking about. If they ask, did you take the first pill? What doctor prescribed it for you? That they can go after those doctors in those states, right? If it is from out of state, they can look how to pursue. There's all sorts of elements there that they could give to friendly lawmakers or law enforcement to pursue potentially.
Jenifer McKenna:
Their attorneys general in California, Washington, New Jersey, and New York have initiated investigations, filed lawsuits under their consumer protection statutes, challenging the promotion of abortion pill reversal by Heartbeat International and affiliated crisis pregnancy centers in their states. And in every case, one of the big rightwing law firms is representing the CPCs in countersuits, and they're so far, they're winning. They're winning with those First Amendment and the speech and religious liberty arguments, particularly before Trump appointed judges.
Rebecca Markert:
So let's shift gears and talk a little bit more about the litigation surrounding CPCs. In 2018, there was a significant case that came out of the Supreme Court, NFA versus Becerra out of California. Can you talk about that case a little bit and what it was and what happened?
Jenifer McKenna:
California passed legislation in 2015 called the Fact Act. It required limited crisis pregnancy centers, crisis pregnancy centers to do two things. First was to disclose by posting something on the wall on their website, information for clients about where they could access low cost or free contraception and abortion in California. Obviously the services they don't provide at the CPC. And then secondly, they required CPCs that were not licensed by the Department of Health to disclose that they were unlicensed and NIFLA sued. And the case was really accelerated pretty quickly up the pain and was heard by the Supreme Court, and the conservative majority in the Supreme Court at that point struck the law down decisively on the posting requirement. It was compelled speech. It was less clear on the second requirement that the unlicensed clinics disclosed that. But what that ruling did was to really to chill regulatory efforts regulating this industry.
Our side had to really regroup. And right around the time that NIFLA came down, the thinking was how do we craft regulations that would, and statutes that would be more narrowly tailored? And those were focused mostly on truth and advertising, deceptive advertising practices. A number of states, four states passed state laws and a number of municipalities passed local ordinances prohibiting deceptive advertising by limited service pregnancy centers. Again, the ecosystem of right-wing legal groups has tagged teamed to represent CPCs to challenge all of those, almost all of the state laws that were passed. And many of the local ordinances, they've either sued or they've used intimidation tactics, threatening city council members and mayors considering local ordinances. And that's had a real chilling effect. A number have passed, but there's been a real lull in their passage, I think as a result of that intimidation campaign.
Alison Gill:
The NIFLA case I find really interesting because it said this was compelled speech to have this posting on the wall, but as you know, unfortunately, there was a lot of states that said, well, doctors have to provide information like when they're providing an abortion, they have to read out this sort of false and deceptive information to patients. And how do you square those two things? You can't require truthful information in this case, but you must read false information in this other case. And it's very clear that this is in their mind when they're drafting this, right? Because they say, well, this is not directly linked to providing a medical service and it doesn't have anything to do with informed consent. So they created some loopholes there, but just the way that they're carefully parsing this, they can continue to engage in these sort of ridiculous deceptive activities while shielding their own organizations. It's hard to argue there's any sort of legal principle there.
Liz Cavell:
Well, we know too, Alison, this current Supreme Court, which sets the tone and the precedent for all of the federal courts is radically biased towards Christian litigants. And so it's just a matter of working backwards from the result. And how many times now in cases before this current makeup have we heard about sort of the double constitutional protection of speech that's religiously based or–
Alison Gill:
Yes
Liz Cavell:
Speech that's compelled that goes against a religious conviction of the litigant, and so there's just everyone is equal before the Supreme Court, but some are more equal than others kind of a thing. So there's no surprise where you're seeing these groups, ADF and First Liberty push these cases up to the Supreme Court because they know that they have ideologically captured the Supreme Court and most of the federal circuit courts and that they're going to get this double protection for their litigants that is not square with any First Amendment precedents that we all know that apply to other laws and ordinances. But it's so frustrating because the whole purpose of these organizations is to deceive, and so it's basically, it's this doubly protected First Amendment right to lie
Alison Gill:
With state money, with public money.
Liz Cavell:
Totally. That's a whole nother, right? That's just a cherry on top.
Rebecca Markert:
That's the thing that is also so frustrating is that everybody knows what the game is. They know that they're not providing medical care and that they're not giving reliable medical information. They're saying, "hey, this has nothing to do with medicine." But then turning around and giving them money so that they can get ultrasound machines and they can give out pregnancy tests and all of that kind of stuff. It's like what's happening here? And you're protecting the lie and also endangering women and children in the meantime, like another horrible theme that we've seen come from this court over and over again.
Jenifer McKenna:
And as you're saying, the fact that the federal bench and the Supreme Court Circuit Courts in particular are just full of judges who are privileging Christian organization's religious liberty and stretching the First Amendment beyond recognition in order to accommodate those groups. The crisis pregnancy industry is really well set because when they're challenged or they bring a legal challenge, they're likely to appear sooner or later before friendly jurist. And I want to note that as an example of how radical a moment we're in, state and local lawmakers that have enacted ordinances or statutes prohibiting deceptive advertising, establishing a policy standard for truth in advertising by limited service pregnancy centers have been met with lawsuits again under the First Amendment, and some of them citing NIFLA, but there's no compelled speech in these ordinances or statutes. It's all about operating under advertising standards.
Liz Cavell:
Well, the compelled speech is you're compelling us to tell the truth if we speak
Jenifer McKenna:
Right. What they claim though, what they often claim is that they're being compelled to tell somebody about abortion that when that's against their religious beliefs or tell somebody about contraception, and it means the distortion of the truth over and over again and a rebranding over and over again as well about what they are and doing, and they've been successful in that. I do want to note though, the two recent lawsuits in Massachusetts that are proactive because they actually offer a potential real accountability strategy. One is Jane Doe versus Clearway Clinic. Clearway is a two site crisis pregnancy center network in Massachusetts that is extremely medicalized and supposedly has a team of certified doctors and nurses, though they don't list anybody's name or credentials anywhere.
That clinic in Worcester, Massachusetts administered think it was a nurse, it was a volunteer or a staff person administered an ultrasound with a young woman a few years ago, healthy baby arrow pointing to your baby and your intrauterine pregnancy, and she had an ectopic pregnancy, so she started experiencing pain a couple weeks later was walking around thinking she had a healthy pregnancy. So she ignored the pain until it became critical acute and ended up in the emergency room in UMass Medical Center, Worcester hemorrhaging and lost her fallopian tube almost died. So it's a private right of action case. So this is actually private litigation suing Clearway, both for deceptive advertising and for failure to operate under medical standards of care, challenging the licensing and the credentials of the people who administer the care there. The first case is really one to watch because we've heard anecdotal reports of CPC volunteers administering ultrasounds and missing medical, just dating the gestational age.
You're too far along to get an abortion or you're not have plenty of time, but also missing medical conditions, a lot of anecdotal reports of that. This is the first actionable case of that. Secondly, on digital data strategies front, there's a crisis pregnancy center in Attleboro, Massachusetts, which located right next to an actual reproductive health clinic that has been intercepting their clients for a long time. That's very clear. Well, they evidently hacked into the online scheduling platform that the medical clinic used, and they claimed "we've rescheduled your appointment." And so they diverted at least four clients of the real clinic back to the crisis pregnancy center and even saw them, some of them.
Alison Gill:
Wow.
Jenifer McKenna:
So the clinic is suing the Crisis Pregnancy center again in a private
Alison Gill:
Wire fraud, a bunch of things, right?
Jenifer McKenna:
Exactly right. Exactly.
Liz Cavell:
What's the name of that case? So people can look it up
Jenifer McKenna:
Four Women Health Services, which is the real clinic, versus Abundant Hope Pregnancy Resource Center. So that's all just this summer. And on the data privacy front, my project has provided support and consulting with Campaign for Accountability, which has filed complaints, formal complaints with attorneys general in five states, Washington, Idaho, New Jersey, Pennsylvania, and Minnesota, citing a crisis pregnancy center in that state. That's an affiliate of Heartbeat International that is claiming to be HIPAA covered or referring people with complaints about their data privacy and data collection to HHS HIPAA website and hotline phone number. So they're clearly deceiving people. They're not HIPAA covered entities and calling for investigations by the attorneys general. And so that's another strategy to get at the deceptive privacy practices and the massive data collection with no privacy protections.
Liz Cavell:
These are CPCs holding themselves out as HIPAA covered entities. They're referencing HIPAA on their website, stuff like that.
Jenifer McKenna:
That's right.
Liz Cavell:
That is so unbelievably bold and wrong.
Jenifer McKenna:
And we found that in all but four states, there are CPCs that do that.
Liz Cavell:
Wow.
Jenifer McKenna:
Essentially all the CPCs around the country claim that they keep client information confidential. They're making claims over and over again about confidentiality.
Alison Gill:
That's interesting.
Jenifer McKenna:
Then there's a subset of them that are going further and saying, we are HIPAA compliant, or we're HIPAA covered, or we voluntarily comply under HIPAA. Well, who cares? Nobody's helping you.
Alison Gill:
Yeah, seriously, you're reminding me of religious schools and colleges, which say a lot of them have non-discrimination rules and say, we comply with federal non-discrimination rules when there's a giant exemption for them. There's actually other good news too, right. You mentioned Pennsylvania before, and maybe you could talk a little bit, the advocates have been really successful in a few states about asking them not provide funding to CPCs. Can you talk a little bit more about that?
Jenifer McKenna:
Yes. This is a success story in both cases. I want to credit my alliance organization colleagues, Women's Law Project in Pennsylvania and Gender Justice in Minnesota that were just instrumental in leading the sort of painstaking work over years, document the practices by the CPCs that were receiving state funding, educate policy makers about the problems with taxpayer funding to these groups. Expose their lack of accountability and the fact that in most cases, the money was not, they weren't reporting fully or close to fully, or what they reported was really questionable in terms of the utility of that public investment. And as of 2023, both Minnesota and Pennsylvania, under Democratic leadership, cut off the contracts, ended the funding programs and repurposed in both cases, in both states, repurposed that funding the millions of dollars that have been going to the crisis pregnancy centers to real reproductive health providers in both states. So that's the good news.
The bad news is there are coalitions of pregnancy care centers, quote unquote, and advocates for crisis pregnancy centers in both states that are very active in state houses advocating for refunding in next year's budgets. And in Pennsylvania in particular, there's a very slick coalition that's formed that's doing really sophisticated messaging again about things like these pregnancy care centers being medical and playing a critical role in addressing the maternal healthcare crisis. I mean, again, no data that would support that, only data available refutes that, but they have friendly relationships with anti-abortion politicians who want to support them and want to redivert that funding back to them. So it's a success story, and it's an example of how we can never relax because this is a very well-funded, very sophisticated and strategic industry with lots of resources throughout the anti-abortion movement.
Alison Gill:
Wow. Are there other states that fall in that alignment that have the Democratic governor or something that might be able to help cut that funding for CPCs that might be in the future? Targets of successful work?
Jenifer McKenna:
I mean, North Carolina comes to mind because there's been a democratic governor, but the lieutenant governor we know is not a Democrat in North Carolina. If anybody's been following the news, the legislature is dominated by Republicans, so it has not been possible. It really takes control of all the bodies that are making these decisions. And the fact is that in North Carolina, there is one democratic lawmaker in particular, a state representative who's been very, very actively sounding the alarm raising questions, visited a CPC there not too long ago as somebody who's part representing the entity that's providing state funding. She had lots of questions and lots of more questions after she left. One of the things that happened in that meeting is she asked for their intake forms. What kind of information are you collecting from clients? And they refused to provide them to her.
Liz Cavell:
Wow.
Jenifer McKenna:
So she's considering a number of next steps for compelling the provision of that information from a state funded crisis pregnancy syndrome.
Alison Gill:
Wow. State funded too. I was thinking states like Michigan or Wisconsin, or you know what I mean.
Jenifer McKenna:
Can I mention one more.
Alison Gill:
Oh, please.
Jenifer McKenna:
One point for your particular mission, which I share, I appreciate, lemme find this note I made to myself. In North Carolina, there was an investigation by Rewire that revealed that LIFElink Carolina, which is the nonprofit entity 501 C3. This created by the state as like an intermediary organization to receive the state funding and then regrant it out to individual CPCs. That model, by the way, is repeated over and over Florida does that, Texas does that. Nebraska does that. Kansas does that. The Florida Pregnancy Care Network, they get all the funding. And I raised, that just decreases further the transparency, right? Because it's this single entity doing kind of gross reporting about where the money is and how it's spent. At any rate, Rewire found that LIFElink Carolina, the State's CPC Regranting partner had allowed grant recipients to spend both state and federal grant money on overtly religious materials that were brochures that were essentially proselytizing being straight and clear violation of federal law. State officials then scrambled, particularly in the Department of Health, which were sort of charged with monitoring hows money went to account for the use of that taxpayer funding defacto. And while that was all happening, and there was a lot of public attention to it, the legislature approved another $12.5 million networks for fiscal years 2024 and 2025.
Liz Cavell:
Wow.
Jenifer McKenna:
Take a blatant example of how they are the anti-choice legislators and governors. Our administrations are covering for these groups and just continuing to send 'em money without any requirements that they justify that public spending.
Liz Cavell:
I have a question, Jenifer. Is there any state, I know your report focused on the nine states, and then you've done aggregate information about how many states receive federal or public funds. Is there any state where CPCs can't thrive? Not just because they can't get public money, but because of anything that can be replicated state law or by masquerading and evading all of these requirements, they can really thrive anywhere?
Jenifer McKenna:
Not yet.
Liz Cavell:
Not yet. Not yet.
Jenifer McKenna:
But I think that, again, good news, bad news is since Dobbs, there's been real attention paid to what these groups are and do and what they aren't and don't do, and that they are a core of the anti-abortion movement. So policymakers are paying attention, advocates are paying attention. The media is paying attention, been accountability measures proposed and enacted or advanced on a number of fronts. More are coming. And the fact that the anti-abortion movement and ecosystem and CPC industry are organizing really extensively and messaging really extensively and counter suing really extensively, I think is an indication of it's a new moment and they're having to fight back and they're under threat, and they're actually, they realize that they're vulnerable. This huge asset in the movement for organizing and mobilizing disinformation, data collection, et cetera, is actually under the microscope now. I mean, so much of this is political.
It comes down to who's in office. We need to keep really pounding out the strategies that will expose what this is about and challenge how they operate and hit them with as many, on as many fronts as they've been hitting us. That combined with voting, particularly at the same local level, because no matter what happens in this presidential election, they are so well organized and so well resourced and so strategic and thinking ahead 10, 15, 20 years at the state and local level, it's not going to be enough even if we get a clean sweep at the federal level.
Alison Gill:
Can I ask you a question? It's sort of a, I don't know, a nightmare hellscape type question. Basically, in England where there's a lot of pushback on access to trans care, especially for young people, they've been pushing something called exploratory therapy, which is this idea that basically they sort of lead people on as if they were going to receive treatment, but it's kind of like soft conversion therapy. It just meant to go on and on and on. And given the way that everything, all the anti-trans sort of advocacy is really an echo in this country of the anti repro advocacy on the other side, the anti-abortion industry, I just wonder if we're going to see a day where CPCs start to offer alternative trans care for young people that's based on conversion therapy. You know what I mean? Exploratory therapy. And I'm curious if you've seen that, if you expect it to happen. I mean, it seems like a really scary and obvious next step that we could see.
Jenifer McKenna:
Yeah. Yeah. You're not going too far. I mean, during the "Design to Deceive" investigation, I did see some CPCs that had conversion therapy language in their sexuality education programs.
And it wasn't most of them, but that was already, what, four or five years ago. And it's absolutely the case that the healthy sexuality, sex education curricula that they're using is shaming about LGBTQ or any alternate, any gender fluidity. It is about promoting binary gender identities and traditional gender roles explicitly so. So I wouldn't be surprised if that kind of thing happened more. And there's, I think already a preview of it on a parallel track, which is that crisis pregnancy center industry leaders in particular, one of the board members at Heartbeat International did at least one op-Ed and has been publicly promoting the claim that fetal diagnosis, there's a high false positive rate in fetal diagnosis tests. The point being, and what he says explicitly is a lot of women who get a fatal or devastating fetal diagnosis are actually carrying a healthy baby. And if they choose abortion, they will be aborting a healthy baby.
And crisis pregnancy centers are now developing expertise in counseling, perinatal counseling, and perinatal hospice care.
Alison Gill:
Wow.
Jenifer McKenna:
So they're part of the anti-abortion, Students for Life, and Susan B. Anthony Prolife America, and the Pro-Choice Association of OBGYNs, which are really, really radical extremist groups. They're the ones pushing for necessary abortions, medically necessary abortions be conducted by C-section rather than a much simpler, less invasive abortion procedure to protect the integrity of fetal life or that unborn baby. That's the kind of thing those groups are promoting. Those groups are also part of this anti-abortion movement infrastructure that's pushing this message that you can't trust your fetal medicine specialist if they give you a negative scary fetal diagnosis, but you can come to us and we will help you through, because they're trying to get women to carry the term no matter what. And so, I mean, that's how insidious and they are.
Liz Cavell:
That is monstrous.
Alison Gill:
And it's really medical care, I mean it's clearly–
Liz Cavell:
And to what end? What problem are you solving?
Jenifer McKenna:
Right?
Liz Cavell:
You get to invade a woman's body for a few more weeks and then what?
Jenifer McKenna:
Yeah. Yeah. I mean, it's also just, it reveals they don't care, certainly about women. They don't care about women's health. They don't even care about babies.
Liz Cavell:
That's the thing.
Jenifer McKenna:
Yeah. It's about control It. It's about their religious values and worldview, and everybody has to operate under that same set of they're right and everybody else is wrong, and whatever the collateral damage doesn't matter to them. So I know it's hard for me to understand as well, but all to say that it's spinning out Alison, that's a possible future area in which of activism and disinformation in terms of targeting trans folks.
Alison Gill:
Their families, targeting parents of trans families.
Jenifer McKenna:
Folks, families. Right. I don't see any reason why that wouldn't be on their agenda eventually, if not sooner, if not later. And there's certainly that confluence of attacks on trans rights particularly, and particularly children service transitional support for children or minors as a parental rights issue. And there's an overlap of that with abortion bans.
Alison Gill:
Absolutely.
Jenifer McKenna:
Yeah. And that's what the anti-abortion movement is, and crisis pregnancy centers are right at the core of that.
Rebecca Markert:
So as we're talking about their activism, especially in the different political arenas, can you talk a little bit about what CPCs are doing with regard to the ballot initiatives on abortion that are happening across the country? And obviously we need to note this episode is being recorded at the end of October, but won't drop until after the election. So we don't know how those initiatives turned out, but we're just interested in hearing specifically what role CPCs are playing in those initiatives, and if they are pretty active in those.
Jenifer McKenna:
Sure. Yes. We've been looking more and more into the key actors involved in the anti-abortion movement and their overlap with the crisis pregnancy center industry, key actors in the crisis pregnancy center industry, and their relationships with anti-abortion politicians in the states. Looking at that landscape and knowing that, again, realizing recently that this is a multi-billion dollar industry that's taken in a lot of private funding and now taking in a lot of taxpayer funding as well has almost somewhere around 3,000 locations around the country outnumbering abortion clinics and reproductive health clinics in every state, including Massachusetts, by the way, which very, very pro-choice state, lots of really powerful reproductive health policy and reproductive rights policy. And their CPCs outnumber abortion providers in Massachusetts three to one.
And the CPC industry also reports a hundred thousand staff and volunteers around the country. So it's a massive ground game. So we started looking into their role in anti-abortion legislation, et cetera, and that led to realizing that they've actually been very active on in opposing ballots initiatives in this election cycle. So one data point is that Heartbeat International on their website has information about how to engage in abortion related ballot initiatives as an opposition strategy. They suggest contacting CPC networks in specific states, Colorado, Florida, Maryland, New York, to engage in opposing the ballot initiatives in those states. They provide resources on get out the vote efforts and advice on messaging to counter ballot initiatives specifically. At their national conference in May, they had a whole workshop on how to engage in political advocacy and lobbying as a 501 C3 and highlighted South Dakota based CPC leader to talk about his CPC and as a model for how other Heartbeat International affiliates could engage in political activities in their states.
And then we found evidence of individual crisis pregnancy centers all registered as 501 C3s affiliated with Haring International that have taken a prominent role in the legal challenges aimed at obstructing voters from deciding on abortion rights ballots, and that are actively campaigning in their states. On these initiatives and we found CPCs in Arizona, Colorado, Florida, Maryland, Missouri, Montana, Nebraska, Nevada, New York, and South Dakota, and the Florida one, Pregnancy Center of Panama City. They're doing social media ads with messaging about how to be an activist against these abortion rights initiatives. And this pregnancy center of Panama City also was also auctioning a quote unquote, custom built Trump rifle as a fundraiser, that little tidbit. And then we found that other CPC industry leaders, in addition to Heartbeat International, have been active on this front, choose life marketing, which is pro-life marketing firm, is working with CPCs to produce ads supporting anti-choice candidates, as well as the anti-choice ballot initiative, voting against antitrust. They get ballot initiatives in Florida and Missouri and the Thomas More Society, one of the right wing legal organizations, Christian legal organizations in Missouri, has represented a CPC in a failed attempt to block the state pro-choice ballot. And they represented CPC network in Nebraska called Women's Care Center in a lawsuit to block the right to abortion initiative there. So they're very actively engaged in electioneering against abortion rights initiatives in the States while claiming that they're harmless community resources.
Liz Cavell:
Wonder if that accounts for some of those discrepancies and expenditures and actual service seekers.
Jenifer McKenna:
Yes, yes, yes. So we're hoping that, I mean, this is important information for people in the community to understand whatever happens with the ballot initiatives in each of those states. The fact is that whichever way they go, these crisis pregnancy centers in their communities have been on the ground advocates against them trying to block them. And they're not medical providers, they're not unbiased resource providers for pregnant people. They're actually political entities. And this is their end game is ending abortion, contraception, and access to actually all reproductive healthcare.
Alison Gill:
Well, that's a good but depressing place to end it, I think.
Rebecca Markert:
Yes.
Jenifer McKenna:
I mean, the discussion about the lawsuit, the Massachusetts lawsuits, the Massachusetts lawsuits give me hope and the attorney general consumer advisories and investigations happening, give me hope.
Alison Gill:
So if there's one takeaway or course of action is we should ask people to demand that their lawmakers investigate these things seriously and take action where possible. Particularly if you have a friendly attorney general or governor, then raise the issue with your own lawmakers when you reach out to them. It seems to be like we have to keep this in the public eye and talk about it so people are aware of it. So easy just to brush these under the rug, right.
Jenifer McKenna:
And I would add two things. One is that attorneys general and state departments of public health will investigate complaints against crisis pregnancy centers, whether they're licensed by the State Department of Health or not. Whether the complaint is coming from a client who's had a bad experience, a friend or neighbor or family member of a client or a community member who's saying, you know what I'm worried about, this group, I think saw their ads, or whatever the complaint would be, may be really, would encourage people either have any contact with any of these groups or know people who have to share that information with your state attorney general. The more public pressure attorneys general get and Departments of Health get to investigate these groups and take action, the better.
And then the last thing I'll say is that there's a new documentary about crisis pregnancy centers called "Preconceived," which was just released this year. It premiered at South by Southwest Film Festival where it won awards. It's really very well done. Really captures sort of the complicated set of stories that people need to understand, need to hear and understand about what crisis pregnancy centers are and do. And it's now just recently became available for online streaming. So you can Google "Preconceived," it's a great educational tool and a great way to activate other people to understand and care about this industry, to take whatever action they can.
Alison Gill:
We at American Atheists stream that for our constituents. So if you all have local groups in your area, you might ask them to stream it as well for their local group. You can have a viewing day and then talk about CPCs as a group. That might be a good way to help raise attention on this issue.
Jenifer McKenna:
Definitely.
Liz Cavell:
That's a great idea. And we'll have links to preconceived and everything we've been talking about with Jenifer in the show notes, the lawsuits, the design to deceive report, everything so you can educate yourselves and share.
Jenifer McKenna:
Yeah, and I'll say also the Reproductive Health and Freedom Watch website, particularly as of next week, will have a lot of really useful information for people to see investigations we've done into the funding and public funding reporting by the CPC industry, data privacy issues. There are just great research and resources there as well.
Rebecca Markert:
Great. Well, Jenifer, this has been incredibly informational, insightful, a little bit terrifying, but I feel that we cannot thank you enough for joining us today to talk more in depth about CPCs. I think we all learned a lot, so thank you so much for joining us.
Jenifer McKenna:
Thank you so much for having me and for the work that you are doing, all of you and your organizations, it's just unconscionable in this country that these religious groups, unregulated pregnancy centers that are claiming to be medical, that are actually religious groups are allowed to operate the way that they're operating and endangering women's rights and health.
Liz Cavell:
Amen. Jenifer, thank you for all you do. Somebody needs to hold these groups to account and do these investigations. The whole point is to be deceptive and secretive, and so it makes it that much harder. So thank you.
Rebecca Markert:
Well, that is it for today's episode. I'm Rebecca Markert.
Alison Gill:
I'm Alison Gill.
Liz Cavell:
And I'm Liz Cavell. If you haven't already, please follow us on our socials. We're on Facebook, Instagram, and X. Please also remember to let us know how you're liking the show by leaving a review. You can also find us at we-dissent.org. Thanks for listening.
Rebecca Markert:
We Dissent is a joint production of the Freedom From Religion Foundation, American Atheists, and Americans United for Separation of Church and State. It is hosted by attorneys Liz Cavell, Alison Gill, and me, Rebecca Markert. Production support comes from Greta Martens and a AU'S Litigation fellow, Jess Zalph. Audio Engineering, provided by Audio for the Arts based in Madison, Wisconsin.
Thanks for listening.
