Last week, a federal district judge in Buffalo, New York, issued a ruling enjoining the state attorney general, Letitia James, from enforcing state laws barring deceptive acts or practices and false advertising by crisis pregnancy centers that promote “abortion pill reversal” (APR). The judge said that enforcement of these laws against the plaintiffs would violate their First Amendment rights.
The opinion warrants reversal because it fundamentally misapprehends the state’s interest in combating deception, which is not limited to preventing financial losses. The state also has a profound interest in the health and safety of its citizens.
The Parties and the Case
The National Institute for Family and Life Advocates (NIFLA) operates crisis pregnancy centers—which provide some pregnancy-related services but do their best to steer those who come to them away from abortion—throughout the country. They also now promote APR to people who sought to end their pregnancies through the two-drug protocol of mifepristone and misoprostol. They claim that someone who has taken mifepristone but has not yet taken misoprostol can reverse the former’s effects by skipping the latter and taking supplemental progesterone instead. Some small uncontrolled studies suggest that this protocol may be effective in some cases, but there is no systematic evidence for either its efficacy or safety.
NIFLA and two of its member centers in New York State sued Attorney General James, seeking (and in last week’s ruling obtaining) an injunction against state court civil lawsuits that aim to block their advertising APR. They pointed to a suit that James brought against other crisis pregnancy centers in May as the reason they feared that they could be next.
Before reaching the merits, Judge John L. Sinatra, Jr., needed to get past a number of procedural obstacles, including the argument that the plaintiffs lacked standing, as well as a variety of so-called abstention doctrines. His rulings on these preliminary issues are not obviously wrong but not obviously correct either. A federal statute bars federal courts from enjoining state court proceedings, but by its terms it applies only to already-filed proceedings. The same is more or less true of the abstention doctrines.
That said, principles of federalism and judicial restraint might have led a more cautious and temperamentally conservative judge to accept the attorney general’s contention that NIFLA and the plaintiff centers would have had a full and fair opportunity to make their First Amendment argument in state court if and when James brought an action against them. Judge Sinatra, appointed to the federal bench by President Trump, is indeed conservative, but at least in this case, less temperamentally than ideologically so.
The very first sentence of Judge Sinatra’s opinion describes the statements for which the plaintiffs sought First Amendment protection as promoting a protocol designed “to reverse the effects of a first chemical abortion pill and, thereby, help to save the life of [a pregnant person’s] unborn child.” Later in the opinion, he avers that the plaintiffs would suffer irreparable injury without an injunction, which “serves the public interest by allowing women to access and receive information that may lead to saving the lives of their unborn children.” He repeats a variation of this formulation another two times, never using quotation marks, and thus each time speaking in his own voice. In using the loaded rhetoric of the anti-abortion movement, Judge Sinatra made clear what kind of conservative he is.
A First Amendment Right to Advertise Snake Oil, So Long as it’s Free?
The heart of Judge Sinatra’s opinion is his conclusion that the plaintiffs would likely prevail on the merits. To be clear, he does not say that the plaintiffs are entitled to prevail because their claims about APR are true. If they are true, that is, if APR is safe and effective—something that could only be determined with a full airing of the relevant scientific evidence—then the state could not block advertising or other promotion of APR. Judge Sinatra nonetheless granted the plaintiffs a preliminary injunction without hearing testimony or making any findings about the safety or efficacy of APR because, he said, even if the plaintiffs’ claims are false, they are protected free speech.
Can that be right? In some sense yes. As the Supreme Court recognized in United States v. Alvarez, many false statements are protected by the First Amendment. But fraud is not. Yet Judge Sinatra found that the plaintiffs’ advertisement of APR does not amount to either fraud or commercial speech entitled to less than full First Amendment protection. He did so because the plaintiffs lack a commercial motive: crisis pregnancy centers do not charge for their services.
Judge Sinatra’s understanding of the state’s interest is too narrow. As a preliminary matter, he mistakenly relies (in footnote 14 of his opinion) on the fact that the New York fraud statute requires a knowingly false statement. That might be a good argument for rejecting the attorney general’s interpretation of New York law, but under longstanding Supreme Court precedent, federal courts may not enjoin state officials against violating state law. The issue is not what New York’s laws proscribe but what the First Amendment allows those laws to proscribe.
More fundamentally, fraud for financial gain is not the only possible exception to the First Amendment’s presumptive protection for false statements. Government may proscribe medical quackery and may thus also proscribe promotion of such quackery.
To be sure, in the 2018 case of NIFLA v. Becerra, the Supreme Court held that there is no “professional speech” exception to the First Amendment. Consequently, the Court struck down a California law requiring crisis pregnancy centers to disseminate information about abortion availability. In my view, the dissent by Justice Breyer for himself and three other Justices was more persuasive than the majority opinion in that case. The dissenters argued that the majority’s reasoning threatened disclosure requirements that are routine in the regulation of foods, drugs, securities, consumer products, and more. But so far, at least, those dominoes have not fallen, suggesting that the NIFLA decision is narrower than some of its rhetoric would indicate.
In any event, it is not difficult to distinguish the Supreme Court’s NIFLA decision from the NIFLA case that confronted Judge Sinatra. First, the California law at issue in the Supreme Court case singled out abortion-related speech and was thus clearly content and viewpoint-based in a way that is not true in the New York case, where Attorney General James relied entirely on New York’s general statutes. Judge Sinatra’s assertion that the lawsuits James could bring against NIFLA and its members would be content and viewpoint-based is dubious.
Second, the Supreme Court NIFLA case did not involve false advertising. To read it as protecting a right to make false statements in an effort to persuade people to embark on an unproven and potentially dangerous course of medical treatment would be a bridge too far.
In the end, Judge Sinatra’s central argument is that NIFLA and its members do not charge for the services they provide, but that should not be persuasive. The government’s interest in preventing con men from selling snake oil as a miracle cure is not exhausted by pocketbook concerns. If regulators have reason to think that the snake oil is poisonous, it can prohibit its distribution and promotion on health and safety grounds. Poisons are equally poisonous whether sold or given away for free.
To be clear, the foregoing analysis rests on the assumption that the plaintiffs’ claims about APR are false. If, after serious scientific investigation and a full trial, it turns out that the claims for APR are true, then it would be problematic for the government to forbid their advertisement. But Judge Sinatra issued his preliminary injunction because he thought that the plaintiffs have a free speech right to make even false statements about APR.
Impact on Gender-Affirming Care
Judge Sinatra made one further argument. No one can receive progesterone for the purpose of reversing an abortion pill without a prescription from a doctor. Thus, Judge Sinatra said, regulation of APR promotion by crisis pregnancy centers is unnecessary. Is that persuasive?
Not as a constitutional matter. Judge Sinatra invoked the involvement of doctors in prescribing progesterone as part of his application of strict scrutiny to the enforcement of New York’s laws against the plaintiffs. It ostensibly shows that enforcement actions by Attorney General James against NIFLA and its members are not narrowly tailored. But if James is right that promotion of APR is not fully protected speech, then strict scrutiny does not apply and there is no requirement of narrow tailoring.
Meanwhile, the fact that a patient seeking to reverse the effect of mifepristone must obtain a prescription from a doctor does not absolve those who promote APR of all responsibility, especially if doctors who write such prescriptions are thereby acting irresponsibly or unethically.
Are they? That depends on whether APR via progesterone is safe and effective, which, as noted above, is unclear. At the very least, such a prescription is off-label.
To be sure, off-label uses of FDA-approved medications are quite common. Indeed, in the coming Term, the Supreme Court will hear argument in United States v. Skrmetti, which involves a challenge to the constitutionality of Tennessee’s prohibition of gender-affirming medical care for transgender minors. Some of the hormone therapies used for such care are also off-label. Does that mean that Tennessee’s prohibition of gender-affirming care and New York’s enforcement of its deceptive practices laws against APR must stand or fall together?
The short answer is no. The fact that a use is off-label does not itself suffice to demonstrate that it should be forbidden, but many off-label uses are appropriately regulable because they are dangerous and/or ineffective. Fentanyl is approved for use in surgery and other instances of severe pain (such as in cancer patients), but doctors who prescribed Fentanyl for headaches or as a treatment for a mild case of the flu would be properly subject to discipline by their state medical licensing authorities. The question is not whether a drug is being used off-label but whether it is being used safely and effectively.
On that question, there is an important distinction between APR via progesterone and hormone therapy and puberty blockers as transgender care. Although more research needs to be done on both, APR is currently at best an experimental treatment, whereas the gender-affirming care for minors that Tennessee has banned is the current standard of care. And as Professor Lewis Grossman explains in a forthcoming law review article, there is a very longstanding American tradition of permitting doctors to prescribe standard-of-care medicine, contrasting sharply with the legitimate regulation of idiosyncratic medical practices like progesterone for APR.
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Perhaps one day rigorous studies and clinical trials will show that progesterone supplementation is a safe and effective means of reversing the effects of mifepristone for those patients, however few there are, who change their minds about wanting an abortion only after taking mifepristone. If so, at that point, the state would have no good reason to prevent patients from taking progesterone for that purpose or blocking efforts by the likes of NIFLA and its members to advertise and promote APR in a non-coercive manner.
For now, however, promotion of APR as a legitimate medical treatment amounts to false advertising from which the attorney general is entitled to protect New Yorkers. When she inevitably seeks review of Judge Sinatra’s ruling in the U.S. Court of Appeals for the Second Circuit, that court should reverse his abortion-reversal decision.
