VICTORY: Appeals Court upholds free speech for New York pregnancy centers

(Liberty Counsel) [On December 1], the U.S. Second Circuit Court of Appeals unanimously upheld the free speech rights of 51 New York pro-life pregnancy centers to inform pregnant women about the abortion pill reversal (APR) protocol. The ruling keeps a preliminary injunction from a lower court in place that blocks New York Attorney General Letitia James from using business fraud laws to target pro-life pregnancy centers for informing women that an abortion in progress can be safely reversed. The three-judge panel stated that the pregnancy centers are “likely to succeed on their First Amendment claim” and the case can now proceed in the lower court toward a permanent injunction.

In National Institute of Family and Life Advocates v. James, the National Institute of Family and Life Advocates (NIFLA), which has a network of 51 New York pregnancy centers, sued AG James for illegally “targeting” pregnancy centers to censor pro-life viewpoints she disfavors, such as informing women about progesterone treatment that can potentially reverse the effects of the abortion drug Mifepristone. The lawsuit is a countersuit after AG James sued 11 other pregnancy centers to silence them from advertising progesterone therapy under laws governing fraudulent business practices.

Liberty Counsel filed an amicus brief in the case arguing that the “weaponization” of fraud statutes to censor pregnancy centers is viewpoint-based discrimination and an unconstitutional restriction on free speech. Liberty Counsel, which has represented other pro-life pregnancy centers in different cases, submitted the brief to help these organizations retain the freedom and autonomy to offer life-saving medical aid for children in the womb, including the right to speak and promote APR.

Despite many pregnancy centers offering the APR protocol for free, AG James argued that “someone must bear the cost,” and therefore, speech involving APR is commercial speech which can be regulated by business laws. However, the Second Circuit panel rejected that argument finding NIFLA’s promotion of APR was “noncommercial” because it is informational, religiously motivated, and not driven by financial gain.

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Circuit Judge Joseph Bianco, authoring the panel’s decision, wrote that with “these combined elements,” the speech from the pro-life pregnancy centers “does not transform into commercial speech for First Amendment purposes.” 

Circuit Judge Bianco also stated that AG James had failed to show the state’s compelling need to restrict speech whereby NIFLA had “likely” suffered a “constitutional injury” from the state’s actions.

“Here, the preliminary injunction serves to secure the First Amendment rights of the NIFLA plaintiffs by allowing them to make religiously and morally motivated statements that provide information about APR to women who may wish to attempt to counteract the effects of an abortion initiated by oral medication,” wrote Circuit Judge Bianco.

Ultimately, the Second Circuit noted that AG James did not present any “constitutional alternatives” for regulating APR-related statements, so the “preliminary injunction is in the public interest,” concluded the Court. 

The APR protocol uses progesterone, a safe and naturally occurring hormone that has been used safely and effectively for decades to prevent miscarriage and preterm labor. Progesterone can potentially reverse the effects of the abortion pill Mifepristone if a woman changes her mind within 72 hours after taking the drug. Mifepristone starves the baby to death by blocking progesterone that helps a woman’s body sustain the baby. The APR protocol consists of giving extra progesterone within 72 hours to “outnumber and outcompete” the abortion drug so the baby can survive.

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More information about reversing the abortion pill can be viewed here. 

Liberty Counsel Founder and Chairman Mat Staver said, “The ruling by the U.S. Second Circuit Court is a victory for women and unborn children. New York’s attempt to censor life-saving treatment by weaponizing business fraud laws is blatantly unconstitutional. The abortion pill reversal protocol gives a woman a chance to save her unborn baby by safely reversing an abortion. The government does not have the power to chill the free speech of pregnancy center staff and take away a woman’s option to safely stop an abortion.”