nonprofits' promotion of "abortion reversal" services was commercial speech

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.