Oakland Seeks to Ban False Advertising by Anti-Abortion Clinics

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Oakland City Hall.  (MIke Linksvayer via Flickr)

Update -- July 5, 2016:

The ordinance to fine pregnancy centers that claim to offer abortion services, but don't, was passed unanimously by the Oakland City Council's Life Enrichment Committee on June 28. The full City Council will hear the measure tonight. If it passes, it must be heard again in two weeks.

Original post:

Oakland officials are considering an ordinance that would allow the city to fine pregnancy centers that claim to offer abortion services, but do not.

Officials say some anti-abortion groups' internet advertising and mass transit billboards are misleading, and intended to lure pregnant women in for counseling against abortion.

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“We believe women who need care should not be lied to,” said Annie Campbell Washington, vice mayor of Oakland and a proponent of the ordinance.

Oakland officials are particularly concerned about search advertising. For example, typing "abortion services" into a Google or Yahoo search engine can bring up links to nearby crisis pregnancy centers that do not offer abortion.

These pregnancy centers buy the search ads for terms like "abortion" or "pregnancy test" so links for their clinics will appear on users' screens when they enter searches for those terms. Their websites often say they offer "abortion information" or "counseling for women seeking abortion."

Oakland officials want to prohibit them from doing this. Fines would range from $50 to $500 per violation.

"When a woman is misled into believing that a clinic offers services that it does not in fact offer, she loses time crucial to her decision-making process," Washington says.

Washington says delays in care can mean women may have to get a more invasive, more expensive procedure, or may lose her right to terminate the pregnancy at all, because too much time has passed and her pregnancy is too far along to lawfully terminate.

“We want to send a clear message that false advertising is not acceptable in the city of Oakland,” she said.

Up until a few months ago, if iPhone users asked Siri to locate a nearby abortion clinic, the voice assistant would return a list of adoption agencies.

Apple, which is responsible for Siri search results, said it was aware of the glitch right after Siri debuted in 2011, but it was not fixed until January, 2016. The company told Tech Crunch that it has been "updating its search results over time."

Crisis pregnancy centers say the marketing and counseling they do is not false advertising. It's free speech. They say this kind of ordinance is an attack on their first amendment rights.

“Using search terms to make women aware of your ministry and the services you provide, with regards to pregnancy alternatives, is very legitimate and would be foolhardy not to be utilized,” said Brad Dacus, an attorney with the Pacific Justice Institute, a nonprofit law firm that defends religious freedom.

Staff at crisis pregnancy centers do not lie, he said, adding, it’s "insulting to women" to assume they don't have the ability to ask questions before making an appointment to make sure the services they want are available.

“It’s also very presumptive to believe that those who use search terms such as ‘abortion’ are presumably seeking just an abortion," he said. "They may also be open, and possibly yearning, for other options."

Some crisis pregnancy centers challenged a similar false advertising law in San Francisco, which took effect in late 2011. Last year, a district judge upheld the law, saying false and misleading commercial speech is not protected by the First Amendment.

The Oakland ordinance builds on a new statewide law that was signed by Gov. Jerry Brown last fall, the Reproductive FACT Act.  It requires crisis pregnancy centers to notify their clients if they are not medically licensed.

In addition, clinics that are medically licensed are required to post a notice in their waiting room -- or let patients know when they check in for an appointment -- that there is financial assistance available for family planning services and abortion. They must also provide the phone number for the local county health department.

The Pacific Justice Institute has filed one of several lawsuits challenging the state law. It is currently under review by the 9th Circuit Court of Appeals. Dacus says if the law is upheld, his group will appeal to the U.S. Supreme Court.

The state law did not cover issues of false advertising.

Oakland’s ordinance goes before the city's Life Enrichment Committee for a vote on Tuesday, then will be reviewed and voted on by the full City Council twice in July.