BURLINGTON — Attorneys representing national anti-abortion advocates and two Vermont-based crisis pregnancy centers argued before a judge on Thursday that a 2023 state law subjecting the facilities to false and misleading advertising statutes amounted to “viewpoint discrimination.”
But the state’s top prosecutors, who have asked a judge to dismiss the groups’ lawsuit challenging the law, maintained that the measure does not specifically target anti-abortion speech.
The law, known as Act 15, makes such centers subject to civil action if they engage in “unfair and deceptive” practices, or if any of their employees provide services that they aren’t licensed for under existing professional standards.
According to the lawsuit, which was filed last year, those measures put unconstitutional restrictions on the centers’ ability to market to and serve their clients. The plaintiffs allege violations of both the First and 14th amendments.
They include Aspire Now, a crisis pregnancy center in Williston; Branches Pregnancy Resource Center, another in Brattleboro; and National Institute of Family and Life Advocates, a nationwide anti-abortion advocacy nonprofit affiliated with the two Vermont facilities.
Crisis pregnancy centers are nonmedical facilities that advertise themselves to pregnant patients, offering some basic obstetrics — such as pregnancy tests and ultrasounds — while actively seeking to dissuade patients from obtaining abortions. There are seven such facilities in Vermont, including in Barre, Middlebury and Rutland, according to the University of Georgia’s Crisis Pregnancy Center Map.
Many such facilities ramped up their activity nationwide after the U.S. Supreme Court struck down Roe v. Wade case precedent in 2022. With the federal right to an abortion revoked and dozens of states outlawing or restricting access to the procedure, pregnancy centers have proliferated to fill the void.
Prior to the passage of the Vermont law, the state’s consumer protection and false advertising statutes did not apply to pregnancy centers because the facilities offer their services for free — therefore falling outside the bounds of those rules. Act 15 added such centers to the types of organizations covered by the statute, regardless of whether they charge.
The state has moved to dismiss the lawsuit on the basis that the law merely prevents “deceptive advertising” and “unprofessional conduct.” The two pregnancy centers have not claimed that they engage in either practice, so should not be restricted by the law, the state argued.
The centers therefore have no standing to sue over its provisions, said David McLean, an assistant Vermont Attorney General, speaking to Judge William K. Sessions III in U.S. District Court in Burlington on Thursday afternoon.
Also, McLean said that the law only targets false and misleading commercial speech, which is not protected by the First Amendment and falls under the state’s regulatory authority.
Mercer Martin, an attorney representing the plaintiffs, pushed back on that characterization, arguing that Vermont lawmakers and Attorney General Charity Clark — whose office has authority to investigate violations of the law — have instead repeatedly shown political opposition to those facilities, specifically.
Martin, a fellow at the national conservative Christian legal advocacy group Alliance Defending Freedom, pointed to lawmakers’ “legislative intent” language outlining how some pregnancy centers, broadly, can mislead people seeking care. He also noted a 2023 open letter, signed by Clark and 15 other states’ attorneys general, detailing their concerns with the facilities nationwide.
Martin said the language in the law is too vague for Vermont’s crisis pregnancy centers to be sure that their existing practices wouldn’t be subject to enforcement actions, which could include a fine of up to $10,000.
That lack of clarity extends both to how the centers can advertise, but also around what kind of services they are authorized to provide, he said.
As an example of a current advertising practice that could be impacted, Martin described how the centers run ads on search engines that appear when people type in keywords such as “abortion” and “clinic.” The ads direct people to the centers’ websites, he said.
The law calls for licensed, certified health care professionals to “conduct or to ensure that health care services, information, and counseling at the limited-services pregnancy services center are conducted in accordance with State law and professional standards of practice.”
Martin contended that the terms in this section of the law need further scrutiny, such as what constitutes “counseling” or “health care services.” He said that can’t happen if Sessions approves the state’s request to dismiss the case.
McLean responded that the state was disappointed that the centers took the state to court once the law was passed rather than work with officials and regulators to ensure their operations were in compliance with the law.
He acknowledged, too, that the state did not have a full understanding of the services that the centers provide because it was unclear when “medical services begin and when advocacy ends.”
McLean said that lawmakers’ goal with Act 15 was to take a proactive stance against potential misconduct by pregnancy centers in the future, not to restrict the operations of the existing facilities in the state.
“There is ample evidence of the problems that crisis pregnancy centers have created across the country,” he told the judge.
Attorneys representing the plaintiffs were joined in the courtroom by staff and board members of the two Vermont facilities, some of whom repeatedly shook their heads while McLean spoke to the judge.
Kevin Theriot, an attorney for Alliance Defending Freedom who was also on hand for the hearing, told reporters afterward that it would likely be at least a month before Sessions issued a ruling on the state’s motion to dismiss the case.
“The legislature is targeting pregnancy centers, and they’re facing unjust punishment, just for providing free services to women,” Theriot said, adding that it is because the facilities “don’t agree with the radical pro-abortion views of the state of Vermont.”
Read the story on VTDigger here: Anti-abortion groups spar in court with state lawyer over crisis pregnancy centers .