Abortion and deceptive advertising

Crisis pregnancy centers exist to discourage women from abortion. They therefore compete with and attempt to divert women from abortion providers. Sometimes this crosses the line into bait-and-switch advertising and promises of services they can't actually provide. Eliot Spitzer reached agreements to prevent this with several crisis pregnancy centers.

Now crisis pregnancy centers are turning the same reasoning on abortion clinics: If they're commercial competitors with abortion providers, they can sue for false advertising. (Defendant's site.) As far as I can tell, the claim is that the clinic advertises under the heading "Abortion Alternatives" as well as "Abortion Providers." I have not seen a copy of the complaint.

These are all state-law claims. It's not entirely clear that either side would have standing under the Lanham Act, since they aren't competitors in the sense of providing the same services, which is the usual Lanham Act scenario. Abortion services and prenatal care are substitutes, but so are bicycles substitutes for cars, and we don't necessarily want to put bicycle makers into the strict-liability, preponderance of the evidence regime of the Lanham Act when they advertise that bike riding is better for the environment than driving a car. Courts have used standing as a way to limit the situations in which this problem arises. The free speech reasons for limiting standing this way are even clearer in the abortion context -- but in that case, using state law doesn't avoid the potential First Amendment problems.

It may be possible to distinguish bait-and-switch (a class of false representations into which trademark infringement falls) from other types of misrepresentations (say, about the safety of abortion). See Birthright v. Birthright, Inc., 827 F. Supp. 1114 (D.N.J. 1993) (applying the Lanham Act to a dispute between two crisis pregnancy organizations, the smaller of which had disaffiliated with the larger but continued to use the same name). So a crisis pregnancy center might not be allowed to advertise as an "Abortion Provider," but if a woman wants to discuss alternatives to abortion, its statements can only be regulated to the same extent as other noncommercial speech -- which, if the center is dispensing medical advice, might or might not allow a fair amount of regulation. Given how much leeway states have to regulate speech by abortion providers, because it's associated with a medical procedure, they might also have plenty of leeway to regulate speech about childbirth, or about the relative risks associated with childbirth and abortion. But if the centers don't provide medical services, we may be back in the pure advocacy/fully protected category -- even as the deceptiveness of the message "abortion alternatives" substantially increases when the centers don't offer prenatal care or other medical care.

On a larger scale, I'm not sure the distinction between bait-and-switch and other misrepresentations can work. For one thing, as the link above indicates, consumers may be misled by ambiguous statements like "Pregnant? Need help?" or even "Abortion Alternatives." If we call that bait-and-switch, we've already decided to regulate a fair amount of what could be deemed persuasive speech.

I suspect many people will find something fundamendally disquieting about thinking of crisis pregnancy centers and abortion clinics as commercial competitors. But we don't have a very good way of talking about businesses with a mission in advertising law.