California argues two antiabortion organizations misled more than 1,000 pregnant women into undergoing an unproven treatment, setting up a consequential test of free speech protections and consumer protection laws.
On Sept. 17, following nearly three years of litigation and a six-week trial, California’s Department of Justice delivered its closing arguments in a landmark case against RealOptions Obria and Heartbeat International, seeking to stop their use of “false and misleading claims to advertise abortion pill reversal” (APR), as Attorney General Rob Bonta described it in a press release.
APR is the unproven and potentially dangerous flooding of the body with a high dosage of progesterone after taking mifepristone, the first pill in the FDA-approved medication abortion protocol, but before taking misoprostol, the second approved pill in the sequence.
Critically, as Jennifer McKenna and Carrie N. Baker stress in their 2023 Ms. article on this case:
“The American College of Obstetricians and Gynecologists (ACOG) calls APR ‘unethical” and ‘not based on science.’ Preeminent reproductive health researchers in The New England Journal of Medicine call APR ‘unproven’ and ‘an unmonitored research experiment.’ on pregnant people. The only controlled clinical study of the efficacy and safety of APR was halted in 2019 due to safety concerns after three of the first 12 women enrolled suffered severe hemorrhage requiring ambulance transport to hospital. … The American Medical Association, Society for Maternal-Fetal Medicine and Society for Family Planning have also publicly debunked APR and called for action to protect pregnant people from deceptive and dangerous claims about ‘abortion reversal.’”
APR has become an increasingly central tactic in CPCs’ relentless post-Dobbs efforts to persuade what they call “abortion-vulnerable” pregnant women to carry their pregnancies to term.
Although CPCs commonly present themselves as small, independent reproductive health clinics, most are actually part of “a sophisticated global network led by international, national and regional antiabortion organizations,” according to “Designed to Deceive,” a report by The Alliance: State Advocates for Women’s Rights and Gender Equality (“The Alliance”). Most advance a conservative Christian ideology that opposes abortion, supports traditional gender and family roles, and encourages proselytizing to convert CPC clients. Many are overtly connected with evangelical Christian and Catholic institutions, while others have ties to white Christian nationalism.
CPCs are often backed by powerful conservative Christian legal organizations, such as the Alliance Defending Freedom and the Thomas More Society, which is representing HBI and RealOptions in the current case.
While CPCs also typically pose as health clinics, most are not classified as medical facilities—so they are exempt from the regulations and oversight bodies that medical practices are subject to. For example, although CPCs collect and store highly personal information about the individuals they serve, including“sexual and reproductive histories, test results [and] ultrasound photos,” according to TIME, they are not bound by HIPPA’s privacy protections, like an actual medical practice would be.
Courts have also been sympathetic to CPCs’ claims that state efforts to regulate their false or misleading statements about abortion violate their First Amendment rights to freedom of speech and, potentially, religion. These statements include claims that abortion causes breast cancer or emotional trauma, or that medication abortion can be reversed.
Notably, in the 2018 case of NIFLA v. Becerra, the Supreme Court struck down California’s Reproductive Freedom, Accountability, Comprehensive Care and Transparency Act (better known as the FACT Act) on free speech grounds.
California enacted the FACT Act following a yearlong undercover investigation by NARAL Pro-Choice California that exposed widespread deception at CPCs across the state. Investigators visited 45 centers and found that 91 percent falsely linked abortion to breast cancer, infertility, miscarriage or depression. As Jenny Kutner reported for Salon, the centers also used “slut-shaming, fear-mongering, misinformation and straight-up manipulation” to discourage pregnant women from having abortions.
Seeking to rein in these practices, the FACT Act required licensed facilities to inform clients about abortion and birth control options and unlicensed centers to disclose that they were not medical facilities. Writing for the NIFLA majority, Justice Thomas declared that the “forced-disclosure” imposed by the law’s “government-scripted” speech impermissibly infringed upon the protected free speech rights of CPCs, thereby greenlighting the continued dissemination of misleading and disingenuous representations about APR.
Recognizing that the decision “complicates California’s efforts to empower women with information about their healthcare,” then-Attorney General Xavier Becerra (now governor) pledged the state would nonetheless continue its work to ensure that “all California women– regardless of their economic background or zip code” have access to the needed “critical and non-biased information to make their own informed decisions.”
Upholding this commitment, in September 2023, Bonta filed the current lawsuit against HBI and RealOptions to “put a stop to their predatory and unlawful behavior” under the state’s False Advertising Law (FAL) and Unfair Competition Law (UCL). As we will see, this strategic framing of the case brings it within the well-established commercial speech exception to the first amendment— thus hopefully placing it outside the harmful reach of the NIFLA decision.
As McKenna and Baker wrote, the complaint filed by Bonta on behalf of the people of California included “an exhaustive review of the well-established research on the safety and efficacy of medication abortion and the antiabortion movement’s advocacy to stigmatize medical abortion (called ‘chemical abortion’ in antiabortion messaging), to mainstream false claims that many women regret taking the first medical abortion pill and that women can safely stop the abortion in process with the high-progesterone APR ‘treatment.'”
Nearly three years after filing the lawsuit, California argued in its post-trial brief that six weeks of testimony from 25 witnesses and nearly 200 exhibits had exposed widespread misrepresentations about APR by Heartbeat International and RealOptions. According to the state, the defendants’ advertising had misled more than 1,000 Californians into undergoing the unproven treatment.
At the heart of the state’s case were claims that APR is an “effective process,” has a reported 64-68 percent success rate and, according to Heartbeat International, has saved “thousands of lives.” California argued that none of these claims was supported by credible scientific evidence.
In particular, the state challenged the studies the defendants cited as proof of APR’s effectiveness. The advertised success rate came from selected methods of administering progesterone in a 2018 study, rather than the study’s overall findings. Moreover, the figures failed to account for pregnancies that might have continued without any intervention. The state argued that such precise percentages were especially misleading because they suggested a level of scientific certainty the research did not support.
California also challenged Heartbeat International’s claim that APR had saved thousands of lives. Without reliable evidence establishing that the treatment works, the state argued, there was no basis for concluding that it had saved any lives. The brief also questioned Heartbeat International’s method of calculating its reported successes, which included estimates for patients whose pregnancy outcomes were unknown.
Equally important was the state’s legal strategy. Rather than seeking to regulate CPCs’ speech more broadly, as California had attempted with the FACT Act, Bonta framed this case as a challenge to false and misleading commercial advertising. Under established First Amendment precedent, objectively false or inherently misleading commercial speech is not constitutionally protected and may be prohibited.
California argued that the defendants were engaged in commercial speech by promoting APR through websites, hotlines and other advertising channels—not simply expressing their opposition to abortion. RealOptions, for example, used search engine optimization and blog posts to direct prospective patients to its APR services.
Heartbeat International, meanwhile, operates the Abortion Pill Rescue Network, which connects pregnant women seeking APR with participating medical providers. According to California’s post-trial brief, the network’s website directly appeals to women who have taken the first abortion pill:
“Have you taken the first dose of the abortion pill…? Do you regret your decision and wish you could reverse the effects of the abortion pill? We’re here for you!”
The website then promises to connect women with nearby medical professionals who can help them reverse the effects of the pill, ending with an urgent appeal: “Time is precious, and so is your baby – call us today.”
This advertising does more than promote an unproven treatment. It also reinforces the deeply stigmatizing narrative of abortion regret, which has become a central strategy of the antiabortion movement. In our 2019 book, Abortion Regret: The New Attack on Reproductive Freedom, Alesha E. Doan and I examine how antiabortion activists have positioned women who have abortions as victims in need of protection, while portraying themselves as the true defenders of women’s rights and well-being.
Yet research tells a very different story. A 2020 study by researchers at the University of California, San Francisco found that more than 95 percent of women surveyed said their abortion was the right decision five years later, including those who initially struggled with the decision.
Returning to the First Amendment question, California’s post-trial brief emphasized that the lawsuit did not seek to prohibit the defendants from discussing APR or offering the procedure. Rather, it challenged specific advertising claims that the state argued were false or misleading.
The defendants dispute the state’s characterization of their advertising, maintaining that scientific evidence supports APR and that their communications are constitutionally protected.
California also rejected the defendants’ argument that the lawsuit discriminated against them because of their religious beliefs. The state maintained that its False Advertising Law and Unfair Competition Law apply equally to religious and secular organizations, and that the attorney general’s office regularly enforces these laws against secular businesses.
The distinction is critical: California is asking the court to recognize that the First Amendment does not give CPCs a license to mislead pregnant women about medical treatments. Whether the court agrees could have significant implications for future efforts to regulate deceptive advertising by CPCs.
The trial court is expected to issue its ruling by Dec. 16, within the 90-day period allotted under California law. Given the evidence presented at trial, a ruling in California’s favor could mark a significant victory in efforts to hold CPCs accountable for promoting false and misleading claims about a procedure that the American College of Obstetricians and Gynecologists has denounced as “unproven and unethical.” Such a decision would also send a powerful message: The First Amendment does not give organizations a free pass to mislead pregnant women about their medical care.
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A note from Ms. editors: We want to hear from you for The Majority, a new campaign collecting stories about how reproductive freedom has enabled readers to build the lives they want and need.
Poll after poll shows a majority of Americans support reproductive healthcare access. Yet public debate overlooks the lives shaped by abortion access, contraception, IVF, miscarriage care, maternal healthcare or comprehensive sex education—countless women who chose to pursue an education, have children, not have children, protect their health and chart their own future. What’s your reproductive freedom story? Add your voice. Together, these stories will help show not only why reproductive freedom remains a majority value, but also what it makes possible.
