abortion clinic can proceed with false advertising claims against for-profit ad agency and (in part) the anti-abortion "center" it touted

Four Women Health Servs., LLC v. Abundant Hope Pregnancy Resource Center, Inc., No. 1:24-cv-12283-JEK, 2026 WL 836424 (D. Mass. Mar. 26, 2026)

Four Women is a licensed healthcare clinic that provides reproductive healthcare, including abortion care, to its patients. Abundant Hope is a “nonprofit crisis pregnancy center” that opposes abortion operating in a neighboring building. Four Women sued for state and federal false advertising; the court dismissed the Massachusetts Chapter 93A claim against Abundant Hope but denied dismissal as to the Lanham Act claim. Four Women also stated a plausible Chapter 93A claim against CLM, “a for-profit entity paid by Abundant Hope to make allegedly misleading advertisements about the services provided at the Attleboro Women’s Health Center.” The other defendants weren’t reachable under Chapter 93A because “Abundant Hope is a nonprofit that did not charge for its services, which advanced its pro-life mission, and its officers furthered that charitable mission.”

In 2018, Abundant Hope relocated next door to Four Women and put the name “Attleboro Women’s Health Center,” or “AWHC” for short, on its office. AWHC purports to furnish patients with free medical services, including ultrasounds and pregnancy consultation, testing, and diagnoses, but “is not a separate corporate entity from Abundant Hope, nor is it a licensed medical provider.”

Abundant Hope hired CLM, a for-profit marketing agency in Missouri, to manage that website and place advertisements on Google promoting AWHC to women seeking abortion care. Abundant Hope approved the language drafted by CLM. CLM also provides Abundant Hope with the contact information of potential clients and describes the services that they are seeking based on forms that those “leads” completed on AWHC’s website or elsewhere.

The alleged falsities: On its website and in Google advertisements, AWHC is advertised as a “Women’s Health Center” that has performed hundreds of “medical” tests and appointments and that can furnish “medical services,” including pregnancy testing and ultrasounds. But AWHC does not employ an on-site licensed doctor or Advanced Practice Registered Nurse, and state law requires such licensed medical professionals to diagnose the viability and location of a fetus.

AWHC also allegedly encourages women to access its services by falsely representing on its website that an ultrasound and a determination regarding viability are necessary to obtain an abortion.

AWHC’s website misrepresents that AWHC provides abortion care by listing “abortion” first in the “Options” page and, on the “Abortion” page, urging women who are “thinking about abortion” to “MAKE AN APPOINTMENT.” The website also includes a client testimonial describing AWHC as a “[g]reat place for women considering abortion.” While other pages on AWHC’s website include a small disclaimer at the bottom that AWHC does not perform abortions, these pages and its other advertising contain no such disclosure. Google advertising further implies that AWHC performs abortions because AWHC appears among the first Google search results for “abortion near me attleboro ma,” with an advertisement for scheduling an appointment and links to “Abortion Cost,” “Abortion Pill Info,” “Abortion Clinic Info,” and “Abortion Info.”

Four Women alleged diversion: Between January 2023 and August 2024, 591 patients called both AWHC and Four Women. Many women “unknowingly provided their contact information to Abundant Hope through AWHC’s website or CLM’s Google advertising,” and AWHC allegedly schedules appointments with callers without informing them that it does not furnish abortion care and, once on-site, offers them pamphlets falsely stating that abortion is “dangerous” in order to deter them from going to Four Women.

Chapter 93A prohibits “an unfair or deceptive act or practice” between those “engage[d] in the conduct of any trade or commerce.” Abundant Hope and its officers weren’t engaged in “trade or commerce,” which the law defines, in relevant part, to “include the advertising, the offering for sale, rent or lease, the sale, rent, lease or distribution of any services.” This language “indicates an intent that the services be distributed in exchange for some consideration or that there must be other strong indications that the services are distributed in a business context.”

Using a for-profit marketing agency didn’t change that calculus; “[i]n most circumstances, a charitable institution will not be engaged in trade or commerce when it undertakes activities in furtherance of its core mission.”

However, defendant CLM was a for-profit entity that has been paid “substantial sums” by Abundant Hope to advertise AWHC’s services. “CLM is therefore operating in a business context by receiving payment for its advertising services, and its activities fall squarely within the definition of ‘trade or commerce’ under Chapter 93A.” It wasn’t immunized just because its profit-making activities could be said to further the core mission of a nonprofit organization.

CLM also argued that, since Abundant Hope couldn’t be held liable under Chapter 93A, it couldn’t be held liable for what was essentially aiding and abetting. “But under Massachusetts law, one entity’s participation in another’s tortious conduct can lead to liability under Chapter 93A, even if the other entity is not subject to Chapter 93A liability.”

And its conduct in advertising/running the website was plausibly misleading, even if everything it produced was literally true. It was also plausible that the deception injured Four Women by diverting patients. Four Women alleged multiple specific instances in which women sought abortion care at Four Women but, as a result of confusion, ended up at AWHC.

Lanham Act: Why a different result for Abundant Hope on “commercial advertising or promotion”? The complaint adequately alleged that the defendants had an economic motive and thus engaged in commercial speech. Even though Abundant Hope is a nonprofit organization that provides free services at AWHC, “as a for-profit business, CLM has a clear economic incentive and is paid to promote AWHC’s services.” Nor was AWHC’s provision of free services and its status as a nonprofit organization dispositive. A nonprofit organization’s promotional advertising of services can directly relate to its “ability to fundraise and, in turn, to buy more advertisements.”

Abundant Hope’s paid promotion of its services included $38,846, or nearly 17% of its total functional expenses, in 2022 alone. And Abundant Hope “promotes its diversion of patients from Four Women and AWHC’s provision of free services in its fundraising.” Because Abundant Hope “has a direct economic stake in the provision of its ... service[s]” and advertises those services “in the hopes of realizing an economic gain” through fundraising “rather than merely informing the public or pursuing its ideological views, it may reasonably be viewed as economically motivated.”  

Four Women also adequately alleged that the defendants’ representations were made with the intent of influencing potential customers to purchase the services offered at AWHC; “purchase” here doesn’t require an exchange of money. [Probably more to the point, the word “purchase” in the Gordon & Breach test isn’t part of the statute, and we should be reasoning about what “commercial advertising or promotion” means rather than what a word from Gordon & Breach means.] And [although Lexmark should have abrogated this element], the complaint plausibly alleged commercial competition in the market for reproductive health care.

Materiality: Defendants admitted that AWHC is not “a licensed medical provider” or “facility” and “has never been licensed by the Massachusetts Department of Public Health to provide medical care,” but  they identify AWHC as Abundant Hope’s “medical” arm that furnishes “medical” services; promote AWHC as providing “medical appointments and medical tests” on its website; and advertise elsewhere, including on Abundant Hope’s website, that AWHC provides “medical” services to women, including pregnancy testing and ultrasounds. “These statements give the mistaken impression that AWHC is a medical provider that lawfully performs the identified medical procedures.” Likewise, misleadingly suggesting that an ultrasound and a determination regarding viability are necessary preconditions to obtaining an abortion, and misleadingly suggesting that AWHC provides abortion care, were plausibly material for the same reasons they were plausibly misleading. The complaint also provided examples of actually deceived consumers, giving rise to an inference of materiality.

First Amendment: Four Women’s claims do not target any speech the defendants wish to make, or have made, about their pro-life viewpoint or any of their views about the propriety of abortion. Rather, the claims are narrowly addressed to AWHC’s advertisements and website content that, as alleged, contain false or misleading information and divert women seeking abortion care from Four Women. Where, as here, a plaintiff plausibly alleges that the defendant engaged in commercial speech through false or misleading advertisements, the First Amendment does not provide refuge from claims under the Lanham Act or Chapter 93A.

Cases like NIFLA weren’t apposite, because Four Women wasn’t a government actor and it was challenging only false or misleading advertising, not seeking to compel speech. [Yeah, good luck with that on appeal.]