Worcester Can Regulate Anti-Abortion Centers, New Legal Opinion Says

WORCESTER, MA — An independent attorney believes Worcester can pass a law regulating so-called crisis pregnancy centers (CPCs) without violating the Constitution, according to a new legal opinion delivered recently to city officials — a stark contrast to an opinion on the issue given to councilors by City Solicitor Michael Traynor.

The pro-bono opinion from Stephanie Toti, an attorney with the nonprofit The Lawyering Project, follows more than a year of resistance by top city officials to creating a law regulating CPCs, which Nguyen initially asked City Manager Eric Batista for in July 2022. In September, Nguyen asked Batista to provide an independent opinion on the issue, saying Traynor's opinion on the matter was not objective.

Batista and Traynor delayed action on Nguyen's request for about a year, with Traynor seeking advice from a lawyer in the state Attorney General's office about how to avoid the issue. Traynor eventually sent the council two proposed ordinances to regulate CPCs over the summer, accompanied by a legal opinion saying the ordinances would be unconstitutional.

CPCs mimic the language and services of abortion clinics like Planned Parenthood, but attempt to steer people away from abortion care, sometimes with harmful consequences. A local woman is suing Worcester's Clearway Clinic CPC for misdiagnosing a life-threatening ectopic pregnancy.

"Clearway engages in deceptive advertising, as it does not make clear that its true goal is to dissuade women from terminating their pregnancies, rather than providing them with the range of medically appropriate options," the lawsuit, filed in June, said.

Traynor said the two other cities in Massachusetts that have passed laws regulating CPCs — Somerville and Cambridge — differ from Worcester because they do not have any CPCs within their borders.

"In my opinion, the deceptive advertising ordinance would not survive a First Amendment challenge," Traynor said.

Toti, who has argued cases on reproductive rights in front of the U.S. Supreme Court, delivered her opinion to the city on Friday. In her opinion, Toti said the federal U.S. Court of Appeals For the Ninth Circuit upheld a San Francisco law on CPCs. In that cases, the court held that commercial speech that is false is not protected by the First Amendment.

Toti also said the U.S. Supreme Court case involving a Massachusetts law creating buffer zones around abortion clinics applied to Worcester's situation. Traynor had said in his opinion that a Worcester regulation would unfairly target CPCs. Although the Supreme Court unanimously ruled the Massachusetts law was unconstitutional, the majority opinion said the law was content-neutral because it was location-based, not speech-based.

Traynor's opinion said CPC regulations in Connecticut and Illinois "have not been successful." Connecticut was sued by an anti-abortion group over a state law regulating CPCs, but the state's attorney general settled the matter by agreeing not to enforce the law. A judge never ruled on the constitutionality of the law, and it's still on the books. Somerville used the Connecticut law as a model as did Easthampton, whose ordinance failed after a mayoral veto over the summer. In Illinois, a federal judge blocked the state's new law regulating CPCs, but the legal case hasn't played out yet, Toti said in her opinion.

"In my opinion, given that the city has compelling interests in preventing consumer deception and safeguarding access to time-sensitive reproductive healthcare, the deceptive advertising ordinance is narrowly tailored to address a specific and well-documented problem; and the deceptive advertising ordinance regulating false and misleading commercial speech, which is not entitled to First Amendment protection ... does not raise any serious constitutional concerns," Toti said.

The Worcester City Council could vote on ordinances regulating CPCs at the Oct. 17 meeting. The proposed ordinances were tabled at a previous meeting with the intention of taking an up or down vote once an outside legal opinion was available. Nguyen had asked for the issue to be sent to the council's Municipal and Legislative Operations subcommittee for a broader discussion.

On top of Toti's opinion, Nguyen compiled a 50-page packet of research on problems caused by CPCs mimicking abortion clinics, including a letter from a former Worcester Planned Parenthood nurse urging the city to pass an ordinance.

Sarah Bodah said Planned Parenthood clients would often accidentally go to the Problem Pregnancy CPC along Pleasant Street because of how similarly the two practices look. That led to some women receiving false information about abortion care, or not receiving information at all, she said.

"We need a city ordinance that makes it clear that businesses cannot falsely claim to be referring people for abortion, or giving pregnancy consultations that exclude all the options available," Bodah wrote.

Read Toti's full opinion here:

Correction: An earlier version of this story incorrectly described the outcome of the U.S. Supreme Court case McCullen v Coakley.