The Second Circuit’s decision came just a day before the U.S. Supreme Court heard oral arguments in a similar case involving another government attempt to silence and intimidate pro-life ministries.
On Monday, the U.S. Court of Appeals for the Second Circuit ruled that New York Attorney General Letitia James cannot stop pro-life pregnancy centers within the state from speaking about abortion pill reversal (APR).
ADF Senior Counsel Caroline Lindsay, who argued before the court on behalf of three pro-life pregnancy care organizations, celebrated the ruling, stating, “The court is correct to affirm that women in New York have the right to access information about safe and effective supplemental progesterone through their local pregnancy centers, regardless of what the attorney general may personally believe. The First Amendment clearly protects the right to speak and hear about this potentially life-saving option.”
The case goes back to May 2024, when James announced that she was suing Heartbeat International, a group of pro-life pregnancy care centers that provide referrals for women seeking APR, along with 11 other New York crisis pregnancy centers. James claimed that APR is unproven and unsafe and wanted to block the centers from advertising its availability or discussing it with women.
While disputed by pro-abortion organizations and like-minded government officials, advocates say that APR can save the lives of children who would otherwise be killed through chemical abortion.
In a chemical abortion, a woman first takes mifepristone, which blocks the hormone progesterone from reaching the fetus, which eventually kills him or her. To complete the abortion, the woman takes a second pill, misopristol, several days later, which forces the uterus to contract and expel the dead baby.
Advocates of APR say that women who take mifepristone and then change their mind can be given copious amounts of progesterone within 24-72 hours, which counteracts the medication.
They also argue that the administration of progesterone, a naturally occurring hormone in women, is not harmful to the mother or the baby; the same treatment has been used for decades in women who at risk of going into early labor.
Supporters say APR has a 64 to 68 percent success rate and that more than 7,000 babies have been saved through the process.
As a result of James’s stated intent to go after pro-life groups in state court, several pro-life organizations filed lawsuits against James in federal court, claiming that she was attempting to violate their First Amendment right to free speech.
These involved a lawsuit filed by Thomas More Society on behalf of several of the clinics, and another suit filed by ADF on behalf of the National Institute of Family and Life Advocates (NIFLA), Gianna’s House, and Options Care Center.
In the latter case, U.S. District Court Judge John Sinatra Jr. sided with the pro-life centers, arguing that James was trying to stifle speech with which she disagreed. He ruled that because the speech was not made for a commercial reason, James could not censor it.
James then filed an appeal to the Second Circuit.
On December 1, the appellate court upheld Sinatra Jr.’s ruling, stating that the determination of whether speech is commercial hinges on whether the speaker “has an economic motive.”
The pro-life clinics do not prescribe APR. They only provide referrals to those who do offer it, and they receive no financial benefit in doing so. Their motives, far from being economic, are religious and moral.
As such, the Second Circuit found that their speech was informational, not commercial.
“To hold otherwise could potentially subject a sweeping range of non-profits to regulation of their speech for providing the public with information and resources concerning critical services,” the court ruled.
This represents only the latest instance in which James’s censorship efforts have been thwarted by the courts.
In September 2024, another U.S. district court judge blocked James from silencing the aforementioned plaintiffs represented by Thomas More Society.
In fact, the effort by progressive governments to demonize the work of pro-life pregnancy has resulted in crowded federal court dockets, including at the U.S. Supreme Court, which yesterday heard oral arguments in the case of First Choice Women’s Resource Center v. Platkin.
In 2023, New Jersey Attorney General Matthew Platkin accused First Choice of engaging in deceptive business practices and opened an investigation into its operations, even though no complaints had been made against the ministry. His office then sent a subpoena demanding the release of scores of documents dating back years, including the names, addresses, phone numbers, and employers of all donors, and threatening to hold the ministry in contempt if it didn’t comply.
First Choice then filed a lawsuit against Platkin, claiming that the attorney general is motivated by animus towards pro-life centers, not because there was any actual legal basis for his actions. It argued that he is violating the First Amendment rights of both the pro-life center and its donors.
During yesterday’s oral arguments, the Supreme Court justices seemed to express doubt that Platkin had any real justification for the investigations beyond his own opposition to the centers’ work — even though the constitutional question at hand is whether the case should be adjudicated in a federal court rather than a state court since it involves the possibility of chilling free speech.
Pro-abortion attorneys general and representatives keep targeting pro-life pregnancy based on one ideological basis: These centers don’t believe in abortion. And so these government officials have unleashed every lawfare weapon in their arsenal to try to silence the offending organizations and even to shut them down.
They accuse pro-life pregnancy centers of lying, of misleading women, of engaging in deceptive business practices, of failing to offer “comprehensive care,” meaning abortion, and of actually harming the physical and mental health of women.
The only problem is it’s not true. In case after case, the decision to go after these centers is based on nothing other than conjecture. This fact was deftly pointed out by Justice Clarence Thomas during Tuesday’s oral arguments in a single devastating exchange with Sundeep Iyer, the chief counsel trying to defend New Jersey’s position in the First Choice case.
In other words, the legal efforts have been little more than fishing expeditions and the new laws are a baseless attempt to proactively handcuff and destroy these centers and their pro-life services.
It’s sneaky, and it’s also highly unconstitutional. Which is why progressive AGs keep losing in court — and getting humiliated in the process.
James used the threat of lawsuits and investigations to stop organizations from telling women about APR but has now been slapped down by three different courts.
Colorado tried to do the same thing, even going so far as to pass a law that criminalized offering APR. It too lost in court.
Vermont passed a law that claimed pro-life clinics are engaging in deceptive business practices because they don’t provide abortions. The law limited what services these centers could provide and what statements they could make in advertisements. It also lost in court and were forced to change the law to dismiss a lawsuit.
Illinois Attorney General Kwame Raoul proposed and helped pass legislation that banned pro-life centers from speaking about the harms of abortion and required them to speak government-mandated messages that push abortion, while also threatening to hit them with fines for deceiving clients.
U.S. District Judge Iain Johnston quickly ruled that the law was “painfully and blatantly a violation of the First Amendment” and blocked it. Raoul later agreed not to enforce it.
This past summer, Delaware passed a law that requires crisis pregnancy centers to post government-mandated messages about abortion — despite the fact that the Supreme Court already ruled in NIFLA v. Becerra that state governments cannot compel pro-life centers to advertise abortion.
Of course, as the courts have consistently found, all of these efforts violate the First Amendment rights of freedom of speech and the free exercise of religion.
In each case, pro-abortion officials have targeted pro-life centers despite a lack of complaints or evidence of harm while largely turning a blind eye to abortion clinics, which have been accused of all manner of deception, wrongdoing, illegality, and harm.
Rather than try to compete in the arena of ideas — or simply be grateful that there are charity clinics are willing to provide mothers and families with free car seats, diapers, parenting classes, and emotional support — pro-abortion government officials try to silence pro-life pregnancy centers through the force of law or open-ended investigations that intimidate donors and disrupt operations.
And that is about as unconstitutional as it gets. As Judge Johnston stated in issuing his injunction against the Illinois law:
“There’s no doubt who the Attorney General wants to win or lose in the marketplace of ideas, but the government doesn’t get to decide that. The people do.”
Numerous district courts and the Second Circuit Court of Appeals have since weighed in and come away with the same conclusion.
Given all the wasted time and taxpayer money that progressive states have spent waging their Quixotic war on non-profit pregnancy centers, it would be helpful to everyone if the U.S. Supreme Court would use the First Choice case to send a strong warning that this type of unconstitutional behavior will not be tolerated.
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