WORCESTER – Worcester City Council is set to consider an outside legal opinion on regulating crisis pregnancy centers at its meeting Tuesday, and could take a final vote on whether or not to regulate them.
The council has been discussing regulating the centers, which the Massachusetts Attorney General’s office has issued a consumer advisory against, since July 2022 when it voted 6-5 to request the administration provide it with draft ordinances that would address deceptive practices the centers are said to employ.
In its consumer advisory, the AG’s office wrote that crisis pregnancy centers do not provide abortion care or other forms of reproductive health “despite what they may advertise” and “often provide inaccurate and misleading information about abortion.”
City Solicitor Michael Traynor and City Manager Eric Batista have both advised the council that they don’t think city ordinances regulating the center would survive a First Amendment challenge and would open the city up to lawsuits.
Traynor has cited the 2018 Supreme Court decision that found California likely violated the First Amendment with a law compelling crisis pregnancy centers to provide patients with information about abortion care and other reproductive services.
Batista has said that he hesitated in drafting the ordinances initially because he didn’t want to put the city in a legally liable position, but Councilor At-Large Thu Nguyen insisted his administration provide draft ordinances.
Other municipalities have faced challenges regulating crisis pregnancy centers, with Easthampton’s mayor vetoing an ordinance that would regulate crisis pregnancy centers that the city council initially passed, stating she knew the ordinance would face legal challenges.
The co-director of Boston University’s Program on Reproductive Justice Nicole Huberfeld told MassLive in July that in addition to First Amendment considerations, the fact that most crisis pregnancy centers are not actually health care providers makes them difficult to regulate, since you can’t regulate them by any of the usual paths that regulate health care facilities.
“They’re just businesses and they’re making themselves look like healthcare providers as part of their business model,” Huberfeld told MassLive. “But I think generally they’re very careful not to practice unlicensed medicine. [Crisis pregnancy centers] have found this weird space in the law where they sort of sit next to the usual ways that we would regulate what’s happening here.”
Batista’s administration drafted two ordinances–one that would allow the city to fine crisis pregnancy centers should they be found to employ deceptive advertising practices and another that would require any pregnancy services centers to post information about the services it offers and whether the center is a licensed medical facility.
Traynor said the latter ordinance, “despite its intentions,” was legally “dubious” and amounted to “government required speech.”
Nguyen has publicly questioned Traynor’s legal opinion and during a Sept. 12 council meeting requested the administration seek out two additional legal opinions on the draft ordinances that should be provided by reproductive justice experts.
In a letter to the city council, Batista said his administration contacted six firms for an outside opinion. Three declined to provide an opinion, one said it was an advocacy group and another did not answer, leaving the council with one outside legal opinion.
In an opinion dated Sept. 29, Stephanie Toti, senior counselor & project director of the Lawyering Project, said the first ordinance prohibiting deceptive practices is “nearly identical to a San Francisco ordinance prohibiting advertising practices by limited-service pregnancy centers.”
The constitutionality of the San Francisco ordinance was upheld by the U.S. Court of Appeal for the Ninth Circuit, according to Toti, finding that advertising and other commercial speech that is false or misleading is not entitled to First Amendment protection.
Toti added that she largely sides with the city solicitor’s opinion regarding the second ordinance that would require crisis pregnancy centers to post information about the services they offer and whether it is a licensed medical facility.
She said the draft ordinance had several similarities to the California statute that was struck down in National Institute of Family and Life Advocates v. Becerra, which she said makes it vulnerable to a constitutional challenge.
Toti said the city council could differentiate the ordinance by adding more detailed findings about “the harms that the disclosure requirement is intended to remedy and any gaps in the state law that the ordinance is intended to fill.”
Batista’s administration alerted councilors that the Massachusetts Family Institute has already sent the city letters indicating that, should either ordinance pass, it stands ready to partner with crisis pregnancy centers “to immediately litigate this matter should the need arise.”
The discussion of the draft ordinances has been tabled three times at city council meetings, with the council voting 9 to 2 to table the draft ordinances with many councilors stating they wanted to wait for the additional legal opinions that were requested before voting.
Though councilors were in favor of getting additional legal opinions, some of those councilors also voiced their opposition to the ordinances.
District 2 Councilor Sarai Rivera said that despite not agreeing with a lot of what was in the ordinances, a lot of work had been done and she is in favor of at least having a conversation.
A conversation in committee was prevented when councilors Morris Bergman, Donna Colorio, Sean Rose, Candy Mero-Carlson and Joseph Petty all voted against sending it to the Municipal Operations Committee and then voted against sending the ordinances to the Public Health & Human Services committee.
During the Sept. 19 meeting, Bergman said by tabling the item all the council was doing was delaying the inevitable and said he didn’t recall the council ever sending something that had been deemed unconstitutional by the city solicitor to the committee.
In order for the council to take a vote on the draft ordinances Tuesday, six councilors need to vote in favor of taking them off the table. Then a councilor can make a motion to adopt the ordinances or place them on file – essentially killing them.
Kiernan Dunlop is an award-winning journalist who has spent the past five years reporting in Worcester, New Bedford and Antigua and Barbuda. She’s been published in Bloomberg, USA Today, Canary Media, MassLive, and the New Bedford Standard Times, among other outlets. She can be contacted at kdunlop@theworcesterguardian.org
