By Guy Page

Counseling and advertising provided by Vermont’s pregnancy resource centers is not ‘commercial speech’ and therefore is protected by the First Amendment and not subject to Vermont consumer protection laws, a lawyer for two Vermont pregnancy resource centers told federal judge William Sessions Thursday, May 16.

Alliance for Defending Freedom lawyer Mercer Martin raised the point to defend the Branches Pregnancy Resource Center and Aspire of Williston against the State of Vermont motion to dismiss the centers’ lawsuit, National Institute of Family and Life Advocates v. Clark. Clark refers to Vermont Attorney General Charity Clark, who under a 2023 law is empowered to pursue legal action against pregnancy centers deemed in violation.

In addition to holding abortion and transgender services healthcare providers harmless against legal action, the law that was bill S.37 allows the attorney general to investigate and take action against the marketing practices of ‘limited-services’ pregnancy centers that do not refer or provide abortions. 

Specifically, the law allows the AG to investigate and enforce violations of Section 2493: “It is an unfair and deceptive act and practice in commerce…for any limited-services pregnancy center to disseminate or cause to be disseminated to the public any advertising about the services or proposed services performed at that center that is untrue or clearly designed to mislead the public about the nature of services provided.”

Clark promised in her 2022 political campaign to pursue such violations. A determined pro-legal abortion advocate, on WVMT’s Morning Drive program Wednesday, May 15 she deflected questions about the personhood of the fetus by saying what pro-lifers really want is to control women, and that they should instead argue for more vasectomies. 

Perhaps because their motion to dismiss placed the burden of proof on the State, Judge William Sessions questioned Assistant Attorney General David McLean more closely than Martin on the law’s potential threat to free speech. 

McLean declared at the outset of his 30 minute argument that federal law permits states to control commercial speech (including advertising and presumably counseling). 

“False and misleading commercial speech is not protected under the First Amendment,” he said. 

Is ‘false’ subjective?, judge asks – Sessions rejoined, “They may very well be saying things that you perceive to be false. Say, about the consequences of abortion….I wonder if that would be a reasonable concern for them.”

For example, many abortion providers say PRCs overblow the mental, emotional and physical impact of abortions on mothers, while PRCs say abortion providers do the reverse. Both cite studies, data, and anecdotal information. 

Sessions also challenged his claim that the law is primarily aimed at speech: “Are they [the Legislature] really trying to regulate speech, or regulate conduct of medical practitioners?” He asked. 

McLean conceded there is no evidence that any Vermont pregnancy resource centers have ever used false or misleading statements – i.e. pretending to be abortion clinics in their advertising. “That is a tactic that has been observed in other states,” he said. The Vermont law is intended to prevent the practice from spreading here. In other words (not McLean’s), the law is a sort of prophylactic to prevent the transmission of messaging the law calls ‘unfair and deceptive.’

Websites explicitly say PRCs don’t do abortions – Both Sessions and Martin noted that the PRC websites specifically say they do not provide or refer for abortions. 

Use of SEO discussed – McLean noted (and Martin agreed) that the PRCs use search terms like “abortion clinic” in their Search-Engine-Optimization (SEO) strategy. SEO is a way to pay online platforms to have your website appear higher than others in response to certain search phrases or words. 

McLean also admitted the Legislature’s goal was “to prevent pregnant women from going there and being delayed from accessing pregnancy services” – AKA abortions.

Commercial speech law does not apply, lawyer says – Martin, the pregnancy resource center lawyer, also noted that the PRC’s are mission-driven not-for-profits, and not therefore ‘commercial speech’ – i.e. speech where the main goal is earning money. 

No charge for services – Also, Vermont’s PRCs do not charge for their services. Instead, they fundraise from supporters. Shortly after leaving the courthouse yesterday, Branches executive director Jean-Marie Davis and her 9-year-old son Jonah were the guest speakers at the Central Vermont Pregnancy Services annual dinner, a sold-out affair at which the dinner was underwritten by a donor, and all of the (considerable) donations went to the center, which provides ultrasounds and other pregnancy-related services. 

After the hearing, ADF Attorney Kevin Theriot said he was happy with how the hearing went. The judge’s decision may be forthcoming in about a month, he said. 

Perhaps because the State’s request was to summarily dismiss the case, McLean appeared hesitant to answer Sessions’ question about whether bad counseling by PRC staff violates the state code of conduct for the health care provider overseeing the PRC. 

Such a claim “is highly fact dependent” and could be “disclosed in discovery,” Sessions said. “Wouldn’t it be helpful to know all that?” 

If the case is not dismissed, a next step would be discovery, a phase in civil trials in which lawyers ask factual questions that the ‘other side’ must answer. Discovery is often hostile and adversarial. 

McLean stammered, “We have no indications of what we have run into.”

‘Limited Service’ centers? – One pro-life at the court hearing afterwards noted that it is ironic – even hypocritical – for abortion clinics to deride PRC’s as ‘limited service’ when they routinely decline further services to women who opt to not have abortions, she said.