National Institute of Family and Life Advocates v. Bonta, No. 2:24-CV-08468-HDV-(MARx), 2025 WL 1140450 (C.D. Cal. Mar. 6, 2025)
Not sure this one survives appellate review, but we’ll see.
NIFLA sued for injunctive relief against California AG Bonta over his public
statements and pending consumer protection lawsuit against third parties
involving abortion pill reversal (“APR”). APR is “a controversial and unproven
practice that attempts to ‘reverse’ a chemical abortion through the
administration of high doses of progesterone.” NIFLA alleged that his
statements and lawsuit chilled its First Amendment right to advertise the
practice using language that the AG considers false and misleading.
The court denied the motion, finding that plaintiffs were
engaging in commercial speech when they advertised medical services, for which
they had an economic incentive despite being nonprofits. The First Amendment
does not protect commercial speech that is inherently misleading. “APR has been
tested in the crucible of litigation by three separate federal courts, and in
all three cases the safety and efficacy of APR has been found wanting.” The
court also conducted its own independent review of the expert submissions, and found
“a dearth of credible scientific evidence supporting the APR-related statements
upon which Plaintiffs seek injunctive pre-clearance.” The plaintiffs were
entitled to their own religious beliefs, but not to their own facts. The court
couldn’t find likely success on the merits given the evidence.
Plaintiffs alleged that, as the result of the AG’s
statements and enforcement actions, California NIFLA members have canceled or
postponed plans to advertise about APR options, or to offer APR[.]” Their main
worry was a lawsuit the AG filed in late 2023, which is still pending, against
two anti-abortion nonprofits for alleged false and misleading statements about
the safety, efficacy, and impact of APR, alleging violation of the consumer
protection laws.
Plaintiffs accepted that, as a matter of state law, the
false advertising provisions invoked by the AG applied only to commercial
speech. That might be dispositive in a future enforcement action. “Preliminarily
enjoining the Attorney General from enforcing the state’s laws against speech
that the laws do not apply to is unnecessary at best and violative of
federalism at worst, as it would require the Court to assume that State
officials will improperly enforce state law in the future.”
Identifying commercial speech is fact-driven. “[S]trong
support that the speech should be characterized as commercial speech is found
where (a) the speech is an advertisement, (b) the speech refers to a particular
product, and (c) the speaker has an economic motivation.”
Plaintiffs conceded their intent to advertise, but argued
that only advertisements “in the context of commercial transactions” count as
commercial. Their speech couldn’t be commercial, they reasoned, because the APR
service providers do not charge for APR services. But First Resort, Inc. v.
Herrera, 860 F.3d 1263 (9th Cir. 2017), found that a nonprofit’s advertisements
to non-paying recipients were “advertisements” in the commercial sense because
they were about the provision of medical services rather than the “exchange of
ideas.” Such was also the case here.
Likewise, the speech referred to a particular product—a
medical treatment—also favoring commercial speech treatment. Finally, one of
the benefits that plaintiffs provide to members is advising them on APR, which
“is a powerful economic motivation since it is through their members that
Plaintiffs raise funds. And Plaintiffs do not dispute that they engage in grant
fundraising based, in part, on their APR advocacy and technical support.”
The court distinguished Bernardo v. Planned Parenthood
Federation of America, 115 Cal. App. 4th 322 (2004), which found that Planned
Parenthood’s statements about the lack of a link between abortion and breast
cancer weren’t commercial speech. In that case, though, PP had provided
summaries of and citations to research both supporting and challenging the existence
of a link, and even a caveat conceding that “abortion does not offer the same
protection against breast cancer as a full-term pregnancy.” “Thus, in Bernardo,
it was clear that defendant was presenting a position on a scientific debate
rather than promoting a particular treatment.”
By contrast, plaintiffs “are encouraging the proliferation
of a specific medical intervention.” Indeed, instead of encouraging consumers
to contact a “qualified medical provider for personal medical evaluation and
services” as in Bernardo, plaintiffs direct the public to contact
providers of APR or conduits thereto. For example: “Contact your Medical
Director and other physicians and providers in your community to let them know
of the successful abortion pill reversal rates...[and] [u]rge these medical
professionals to review the research article offer [sic] this protocol as part
of their practices.” In Bernardo, PP provided information for “personal
education, but nothing on [its sites] constitutes a recommendation for medical
care.” “The opposite is true here.”
Because the speech was commercial, Central Hudson
applied. There’s no protection for false or misleading commercial
speech—except! “Inherently misleading” commercial speech may be banned
outright, but if the speech is only “potentially misleading,” it’s protected
when the “information may be presented in a way that is not deceptive.” On this
record, the statements that plaintiffs wanted to make were inherently false and
misleading. In very brief, “reversal” is false because even taken on its own
terms, APR is just adding a higher concentration of progesterone, “ostensibly
to better the odds that these molecules ‘outcompete’ the mifepristone in
binding to the progesterone receptors,” which in theory would then increase the
chance of continued pregnancy (if the patient hasn’t already taken the second
pill—this only works even in theory if only the first pill has been taken).
Also, there’s no credible scientific evidence that APR is
safe. The American College of Obstetricians and Gynecologists and others warn
of an increased risk of hemorrhage or serious complications. In one especially
telling detail, plaintiffs’ expert opined that progesterone can be used safely
based in part on a study finding “no statistically significant difference [in
preterm delivery or birth defects] compared to the general population” in cases
where mifepristone was unsuccessful in terminating the pregnancy. As the court
noted, that study nowhere even asked whether the women were ok.
And there’s no credible scientific evidence that APR is
effective.
Even if the statements were only potentially misleading, Central
Hudson analysis applied, and California has a substantial interest in
protecting consumers from misleading advertising by medical professionals. “While
the advertising at issue here is not strictly by medical professionals, it is
about medical treatment purportedly carrying the weight of medical
authorities—which is the principal concern underpinning the state’s interest.”
The state also had the burden to show that the regulation directly advances the
asserted government interest, and the fit between interest and regulation must
be reasonable/narrowly tailored to achieve the ultimate goal. That test was
satisfied: the fit between consumer protection and enforcing against false
advertising for a medical procedure was “more than reasonable.” (For what it’s
worth, I think this is a weird application of the difference between inherently
and potentially misleading, which I understand to mandate, for the latter, a
requirement to let the speaker to try again with a more nuanced version of the
claim. But given the procedural posture, it may not make any more sense to ask
whether there are some pro-APR claims that could be clarified enough to be
nonmisleading; I would think plaintiffs would have to identify qualified claims
they wanted to make, which they didn’t.
Nor would enforcement against plaintiffs constitute
viewpoint discrimination. The government is presumed to be acting
unconstitutionally when enforcing laws against speech if “the specific
motivating ideology or the opinion or perspective of the speaker is the
rationale for the [enforcement].” This requires a showing of both
discriminatory purpose and discriminatory effect. But there was insufficient
evidence of a “policy plan, or pervasive pattern” of enforcement sufficient to
merit an injunction. The AG filed a grand total of one enforcement action on this
topic; that case was scheduled for trial this year. Two press releases and a
few public appearances on the matter didn’t override 18 months without a second
action. “Indeed, perhaps the strongest evidence that Plaintiffs themselves are
not concerned about a ‘pervasive pattern’ or ‘plan’ is the fact that this
motion for injunctive relief was filed nearly a year after the state court
proceedings were initiated.”
Plaintiffs complained that the AG was going after them and
not after Planned Parenthood, but what distinguished the two was “the
undeniable fact that California’s law enforcement officer views the APR
statements as false and injurious to public health (again, correctly in all
likelihood based on the submitted evidence). That should be the end of the
analysis.” There was no nonenforcement against a pro-choice center making the
same inherently false claims.