Walkway outside Bethlehem House crisis pregnancy center in Easthampton, Massachusetts, which was vandalized in August 2022.
The Cambridge City Council has approved an ordinance banning what it calls “deceptive advertising practices” at crisis pregnancy centers that threatens a $300-a-day fine from the city’s licensing commission.
The council voted 9-0 on Monday, January 9 in favor of the measure.
The ordinance defines “deceptive advertising practice” as “any statement, including but not limited to false and misleading advertising, with a tendency to deceive that could cause an individual to act differently than they would have acted and is used to solicit patronage of a crisis pregnancy center.”
Another portion of the ordinance says crisis pregnancy centers can’t make a public statement “that is a Deceptive Advertising Practice, whether by statement or omission, and that a Crisis Pregnancy Center knows or reasonably should know to be a Deceptive Advertising Practice.”
The proposal began life as a measure called “Banning Limited Services Pregnancy Centers.”
Cambridge has no crisis pregnancy centers currently.
City councilors abandoned the idea of banning crisis pregnancy centers after hearing legal advice in September that it would violate the federal constitution and state constitution.
The Ordinance Committee is a subcommittee of the city council consisting of all members of the city council.
City officials made changes to the proposed ordinance highlighting what they call “deceptive practices” and then considered it again.
The vice mayor, Alanna Mallon, said during a city Ordinance Committee meeting on December 6, 2022 (at 16:56 of the video):
“What we’re doing here today is not banning crisis pregnancy centers in the city of Cambridge. As we heard pretty extensively through our first ordinance committee hearing, that would be against the First Amendment. However, what we’re doing is defining crisis pregnancy centers, through our ordinance. We are defining what a deceptive practice means and looks like. We are defining who will adjudicate those matters. And we are saying to potential crisis pregnancy centers: If you do want to open up shop here in Cambridge and participate in deceptive practices, you will be paying a fine, and there will be injunctive relief that will be sought.”
Five people spoke during public comment at the Ordinance Committee meeting on December 6. One questioned the need for the ordinance, while implying that she supports abortion. Four opposed the ordinance.
Diane O’Toole, executive director of Boston Center for Pregnancy Choices, a pro-life crisis pregnancy center in the Leather District of Boston, told the committee that city officials need to define deceptive practices more closely.
She said her organization does not engage in deception.
“We provide information about abortion. It’s educational about abortion. And it’s not deceptive in any way,” O’Toole said.
Owen Smitherman, a law school student at Harvard Law School and president of Harvard Law Students for Life, said (at 22:08 of the video) that even the watered-down version of the crisis pregnancy centers ordinance contains what he called “multiple First Amendment defects.” He called it “clearly underinclusive” because it regulates only pro-life organizations. He also called it “an unconstitutional example of viewpoint discrimination,” and said it is “unconstitutionally vague and chills speech.”
“It applies to deceptive advertising practices, but does not provide a good definition of what these practices are,” Smitherman said.
City councilor Patricia Nolan said (at 39:35 of the video) said the ordinance is necessary because pro-life crisis pregnancy centers don’t offer women choices:
These centers do not provide a choice, and do not provide accurate information about all the choices before you. And that is why this is necessary for us, to ensure that any center that starts in Cambridge must absolutely follow what we have stood very firmly on – which is you’ve a right to say things, but you don’t have a right to say something that flies in the face of medical information and medical facts, and of the full range of choices before people in this situation. So let’s not have the narrative be that this is squashing speech of people who want to give people choices. This is ensuring that people actually have accurate information about the choices before them. Any information about abortion must be inclusive. It must be accurate. And people deserve solid information.
Nolan’s comment prompted another city councilor, Paul Toner, to ask the city solicitor, Nancy Glowa, to clarify what crisis pregnancy centers can and can’t do under the new measure. (A back-and-forth begins at 43:14 of the video.)
“These centers, I think I read it, said that they are able to counsel against abortion. But to meet this new statute do they have to counsel that abortions are available? Is that one of the factors, that they need to state clearly ‘abortion is available,’ but then they can counsel against it as part of their practice?” Toner said.
Glowa replied:
I think it’s a little bit more nuanced than that. As defined in the case law, a deceptive practice means “any statement, including but not limited to false and misleading advertising, with a tendency to deceive that could cause an individual to act differently than they would have acted and is used to solicit patronage of a crisis pregnancy center.”
So what that means is that if you indicate something that is not true, such as saying “Abortions aren’t available,” or “This is the best way to deal with such-and-such, or the only way to deal with such-and-such” – you have to look at what the statement is in order to really be able to definitively say whether it’s false or deceptive. But I think that the definition provides sufficient guidance to what is false or deceptive that the average person reading the ordinance should be able to discern what false or deceptive means.
Toner (at 46:02) said to the city solicitor: “As long as they’re not suggesting or advertising that they provide abortion services as part of their work, then they won’t trip a deceptive practice. Is that my understanding, Counselor Glowa?
A transcript of the back-and-forth after that follows, with each speaker making references to the chairman to follow procedural rules:
City Solicitor Nancy Glowa: Through you, Mr. Chair:
I don’t mean to be unhelpful.
There could be a false or deceptive statement to induce someone to come into such an establishment, thinking that they were going to be given a broad range of possibilities to consider. But then when they enter the doors, the person could be told, “Oh, no, there really isn’t a broad range. We’re only here to talk about A or B.” And that could well be construed as false or deceptive. So again, it really depends upon what is being stated, and whether it’s being done in order to induce somebody to act in a way that they would not have acted had they not been given that misleading statement.”
Councilor Paul Toner: Thank you. Through you, Mr. Chair: I think I understand. As long as they say “We only do A or B,” they’ll stay out of trouble. But if they falsely or somehow portray themselves as offering more than that to trick people into their center, that is what would trip some liability.”
City Solicitor Nancy Glowa: Probably that’s true. Through you, Mr. Chair: Again, you have to look at what it is that they’re saying, in the context of, ahh – if it’s false or misleading, it’s not permitted. If it’s not false or misleading, it’s O.K.. So, rather than try to think of an example that would or wouldn’t work without having all the facts — that’s very difficult.
Mallon, the vice mayor, said (at 48:06 of the video) what she called “pregnant people” have a short window of time to decide whether to keep the baby, put the baby up for adoption, or get an abortion.
“If I could just add to that: If you think about pregnant people in this situation, it’s time-limited. You have a very short window to figure out what to do, and examine all of those broad ranges of possibilities that are available to pregnant people,” Mallon said.
She envisioned a scenario in which a pregnant woman visits a pro-life crisis pregnancy center and finds out it doesn’t provide abortion.
“If you go to a center that’s telling you they have A, B, or C, they don’t have C, you maybe have wasted a whole bunch of time, as well. And you don’t get that back,” Mallon said. “So, in the cases around contraceptive, abortion, reproductive justice, and health, that time-limited period I think is where – I just want to stress that today that, you know, sometimes I feel like we’re in here talking about widgets. We’re not talking about widgets. We’re talking about a very specific moment in time in a pregnant person’s life, that we have to consider what it would mean if they went somewhere and thought that they were getting a broad range of options, and they weren’t. And what happens when you run out of time.”
Abortion is legal in Massachusetts until 24 weeks.
The Ordinance Committee on December 6 gave the measure a favorable recommendation to the full city council, on a 9-0 vote. That led to the final 9-0 city council vote on Monday, January 9 approving the ordinance.
At least five other Massachusetts municipalities have considered similar measures during the past year.
On July 19, 2022, the city council in Worcester voted 6-5 to ask the city solicitor to draft an ordinance prohibiting “deceptive advertising practices of limited pregnancy centers.” The matter has not come before the city council since then.
On October 19, 2022, the city council of Easthampton voted to drop a proposed ban on so-called deceptive advertising of crisis pregnancy centers. The council discussed the matter briefly that night. The councilor who proposed the ordinance, Owen Zaret, noted in a letter to the council that opponents of the proposal repeatedly brought up Bethlehem House Inc. Pregnancy Care Center, a crisis pregnancy center in Easthampton that sustained significant damage in a vandalism attack on August 18, 2022. Zaret said Bethlehem House was not a target of his proposed ordinance. He said in the letter that he plans “to follow up with language that considers all the feedback and research we have obtained in this process,” though he did not say when.
In November 2022 a subcommittee of the Framingham City Council considered a similar ordinance. It has not come up for a vote by the full city council.
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Walkway outside Bethlehem House crisis pregnancy center in Easthampton, Massachusetts, which was vandalized in August 2022. 
