Rogue crisis pregnancy agencies are an anti-choice guerrilla strategy. They are generally not medical facilities, but rather Christian ministries which attempt to dissuade women from obtaining an abortion. They attempt to obstruct or delay women’s access to abortion through misinformation. Although Irish law closely regulates abortion service provision and counselling (including payments to counsellors under s. 25, HRPTA), rogue crisis pregnancy agencies are not regulated or criminalised in the same way, in part because they do not receive public funding. They have never been legally required to provide non-directive counselling. It is a crime to “aid, abet, counsel or procure a pregnant woman” to obtain an illegal abortion (s. 23, HRTPA). The Minister for Health explained that this provision is intended to prevent coerced illegal abortion (though its application is much broader than that). By contrast, it is not a specific offence under the HRTPA to mislead or intimidate an individual in order to obstruct their access to an illegal abortion.
Registered counsellors are now regulated under the Health and Social Care Professionals Act 2005, and many crisis pregnancy counsellors are members of other registered professions. A person who is not a registered counsellor for the purposes of the 2005 Act commits an offence under s.79(4) if s/he uses that title with intent to deceive another person. Crisis pregnancy centres whose staff do not claim membership of any registered professions are not affected by this Act.
There are three main approaches to regulating anti-choice crisis pregnancy agencies:
- The state could create a general offence of obstructing access to legal abortion, like those in South Africa or France, which could cover many of the activities of anti-choice crisis pregnancy agencies.
- The state could specifically prohibit dissemination of misleading or false information in a crisis pregnancy context. The remit of the Advertising Standards Authority in Ireland is confined to commercial activities. Complaints about rogue crisis pregnancy services have been upheld by the UK Advertising Standards Authority. It is possible to draft legislation which would promote transparency in the advertising of pregnancy counselling services. An example provision is s. 5 of the Pregnancy Counselling (Truth in Advertising) Bill 2006. This Bill failed to pass in Australia for want of political support. Another possibility, demonstrated by model legislation from the American Public Leadership Institute, is to criminalise the behaviour of some rogue crisis pregnancy agencies as fraud. General consumer protection law e.g. the Consumer Protection Act 2007, is of no use here because it only applies to ‘commercial practices’ carried out in the course of a business, trade or profession, and rogue counsellors are not run for profit.
- The state could use a mandatory disclosure law to regulate counsellors or persons holding themselves out as counsellors, and offering crisis pregnancy services. Laws of this kind require anti-choice agencies to disclose their anti-abortion status directly to clients, using a statement like: “This service does not provide referrals for terminations of pregnancy”. This could be done on websites, leaflets or in clinic premises. An example provision is s. 6 of the Australian Pregnancy Counselling (Truth in Advertising) Bill 2006. Some cities in the United States have also attempted to require rogue clinics to inform patients of the availability of other services, but these laws have had little success before the courts. Recently, in National Family and Life Institutes v. Berecca, a bare majority of the United States Supreme Court held that it was unconstitutional for a state to require anti-choice clinics to publish specific notices (i) informing clients that they did not provide abortion care and (ii) telling them about state services for termination of pregnancy for low-income women. This was in part because the state did not make any similar requirements of pro-choice clinics, and did not take full advantage of other options for advertising its services to women. Although laws of this kind have had little success in the United States, given its stringent protection of free speech and lack of attention to the rights of pregnant people, they may have more success in Ireland.
It is ultimately the state’s responsibility to ensure that women have access to clear, objective and truthful information on abortion. However, anti-abortion activists can readily circumvent government information campaigns. Careful and legal grassroots documentation of these practices, such as https://www.exposefakeclinics.com/ may also be valuable tools in the battle against misinformation.
This note was prepared by Mairead Enright. It is a work in progress. Corrections/additions are welcome.