California, NJ Get Green Light to Advance Abortion Probes (1)

Faith-based anti-abortion health centers in California and New Jersey can’t avoid state actions questioning their promotion of a highly controversial method for “reversing” abortions following two federal court rulings.

Judge Gonzalo P. Curiel, of the US District Court for the Southern District of California, dismissed Culture of Life Family Services Inc.'s suit against Attorney General Rob Bonta (D) on Tuesday, saying the group hadn’t shown its free-speech rights were injured by legal actions he filed against two like-minded groups.

And Judge Michael A. Shipp, of the District of New Jersey, refused First Choice Women’s Resource Center Inc.'s request to halt Attorney General Matthew Platkin’s (D) enforcement of investigative subpoenas seeking information about whether it engaged in misleading conduct.

Both cases involve a method touted by anti-abortion groups that allegedly allows pregnant women to “reverse” pill-induced abortions by taking the hormone progesterone after ingesting the first drug. Attorneys general in several state have been investigating the groups and, in some cases, filed suits against them for violating false advertising and consumer protection laws by misleading people about the method’s safety and effectiveness.

So far, Colorado is the only state to have outlawed abortion reversal advertisements, but its law is currently on hold.

Free Treatment

Culture of Life, located in San Diego County, provides free treatment to people who’ve had second thoughts after taking the first of two abortion-inducing pills. The progesterone used in the procedure counteracts the mifepristone, and the procedure itself is “indubitably safe,” it says. The group admits that at least one study has shown the method to be ineffective, but says the study was funded by the pill’s maker.

Culture of Life brought this action against Bonta after he sued international anti-abortion trade group Heartbeat International and RealOptions Inc. in California state court. Bonta alleged the groups violated state consumer protection and false advertising laws, and his complaint identified eight statements in their advertising and other communications that allegedly were false and misleading. The groups’ statements weren’t backed up by credible scientific evidence, Bonta said.

In the current federal lawsuit, Culture of Life said Bonta was motivated by “retaliatory animus” against all anti-abortion groups. The enforcement action against Heartbeat and RealOptions constituted a content-based attack on their abortion reversal speech, it said.

The action, moreover, chilled Culture of Life’s ability to counsel its own patients about abortion reversal and therefore violated its free speech rights under the First Amendment, it said.

But Culture of Life didn’t show it had a “realistic danger” of being injured by Bonta’s actions, Curiel said. Bonta hasn’t sued Culture of Life and his suit against Heartbeat targeted eight allegedly false and misleading statements, not its anti-abortion advocacy generally, the judge said. Curiel said he wouldn’t delve into the merits of whether the statements actually were false and misleading or protected by the First Amendment in order to decide on Culture of Life’s standing.

Curiel gave Culture of Life seven days to amend its complaint to demonstrate standing.

‘Procedural Labyrinth’

The New Jersey case stemmed from a civil investigative subpoena Platkin served on First Choice for about 10 years’ worth of information allegedly relevant to a probe under the New Jersey Consumer Fraud Act, the Charitable Registration and Investigation Act, and his power to investigate corporations. First Choice sued the state attorney general in federal court to quash the subpoena.

But the subpoena wasn’t self-executing, and Platkin hadn’t yet brought state-court proceedings to enforce it, Shipp said in an opinion dismissing the case in January. The US Court of Appeals for the Third Circuit reversed that decision in July, after a state court held the subpoena enforceable. In a subsequent opinion, the state-court judge put her enforcement order into abeyance pending a decision by a state appeals court regarding her earlier decision, Shipp said.

Stepping into this “procedural labyrinth” of parallel state and federal court proceedings, Shipp said First Choice hadn’t demonstrated that its request to halt the subpoena was ripe for review. Whether First Choice will be compelled to disclose information it says is constitutionally protected is still “an open question,” he said.

First Choice’s alleged constitutional injury won’t become imminent and nonspeculative until all New Jersey proceedings—including appeals—have been resolved in Platkin’s favor, Shipp said. Unless and until a state court has issued an enforcement order, the current case isn’t ripe, he said in the unpublished opinion.

LiMandri & Jonna LLP and the Thomas More Society represent Culture of Life. The California Attorney General’s Office represents Bonta.

The New Jersey Attorney General’s Office represents the state. Alliance Defending Freedom represents First Choice.

The cases are Culture of Life Family Servs., Inc. v. Bonta, S.D. Cal., No. 24-cv-1338, 11/12/24; First Choice Women’s Res. Ctrs., Inc. v. Platkin, D.N.J., No. 23-cv-23076, unpublished 11/12/24.