NICOLE PORTNOV – The Mexico City Policy, first put in place from 1985 to 1993, stipulated that non-governmental organizations abroad receiving U.S. assistance could not use separately obtained funds to educate the public, or the government in their countries of operation, on the need to make safe abortion available, advocate for the provision of legal abortion services, or provide information on where to get an abortion.[i] This policy was appropriately, and widely known as the Global Gag Rule.[ii] On March 25 of 2016, Governor Rick Scott signed into law HB 1411, a targeted regulation of abortion providers (“TRAP” law).[iii] Several portions of the law, including a ban on the use of state funds for other healthcare services provided by facilities that perform abortions, have already been declared unconstitutional in a ruling by Judge Robert Hinkle.[iv] However, the law contains additional provision – specifically the registration requirement for abortion referral and counseling agencies – which may, in effect, chill speech around abortion and reduce referrals, thus operating like Florida’s version of the gag rule. Laws that chill speech around abortion will have a particularly damaging effect for low-income women, women of color, and young women.[v]
While the legislation did not include a section addressing legislative intent, it appears that HB 1411 is meant to enable the state to more effectively enforce the requirement that abortion counseling and referral agencies make a “good faith effort” to notify parents of minors seeking an abortion.[vi] The actual parental notice requirement was part of 1991 legislation, currently codified in Fla. Stat. 390.025(2).[vii] The updated version of the statute, which goes into effect in January of 2017, requires that abortion referral or counseling agencies register with the state, place their registration number on all of their published materials, and pay a biannual registration or renewal fee.[viii] However, what makes this legislation vexing is that the definition of “abortion referral and counseling agencies” is incredibly vague and overbroad, including “any person, group or organization… that provides advice or help to persons in obtaining abortions.”[ix] The legislation also provides either a wholesale or qualified exemption from registration for the entire medical profession[x]; but only where these professionals work in certain contexts. In medical practices, hospitals and clinics, exemption from the registration requirement is provided[xi], but where the medical or mental health professional is employed at, for example, a school, as a guidance counselor or school nurse, there is no exemption. The same is true for individuals; the definition of abortion referral or counseling agency includes “persons”[xii] and thus could be interpreted to mandate registration for any individual who provides counsel to anyone seeking an abortion, from friends, coworkers, or family members, to rape crisis hotlines, clergy, [xiii] guidance counselors, teachers, social workers, and potentially even the interns and paralegals at law school clinics that provide assistance to a minor in seeking a judicial bypass.
The registration requirement appears to indicate that any of these individuals, or perhaps the organizations for which they work, would have to register with the Florida Agency for Healthcare Administration just to provide information on, and answer questions about abortion from anyone.[xiv] This is Florida’s version of the Gag Rule, excising a crucial source of counsel and information from women in crisis by chilling speech around this issue.[xv] Why liken the registration requirement to the Global Gag Rule? The comparison appears hyperbolic, but consider the consequences of counseling a minor without notifying her parents; non-compliance is a first-degree misdemeanor with a penalty of up to one year in prison and/or a fine of up to one thousand dollars.[xvi] That penalty, in combination with the vague, and overbroad definitions within the law, and the registration requirement, may lead those who might otherwise offer valuable information and critical support in decision making, and access to care[xvii] – teachers, counselors, school nurses, health educators and social workers – to stay quiet.[xviii] Additionally, if the registration requirement is put into effect, there will be both a cost to register[xix] and possibly a fine associated with operating outside of professional registration requirement. The registration information could also be used in a later attempt to defund entirely any of the referral organizations currently receiving state aid.
The proposed regulations around this legislation refer to “publications” and “premises” which must contain notice of the organization’s registration number.[xx] So, for argument’s sake, we will assume that the registration requirement does not include private speech, though it is otherwise not indicated in any exempted category.[xxi] That leaves at least the other aforementioned organization-types which might counsel young women on abortion: domestic violence shelters, rape crisis hotlines, schools, and legal and advocacy organizations involved in judicial bypass work. The failure to exempt legal organizations such as non-profit law clinics may create a clear conflict between the notice requirement and the ethical requirements of privilege and confidentiality.
Where there is no guarantee of confidentiality in counseling relationships or where confidentiality is mitigated by mandated reporting requirements,[xxii] the notice requirement may be enforceable. Schools and similar organizations – where social workers, teachers, guidance counselors, school nurses, and health educators should make themselves accessible as resources for young women seeking counsel – might institute policies to restrict speech around abortion as a result of HB 1411’s registration and notice requirements. There is a good indication that, in the tradition of the Global Gag Rule[xxiii], and other restrictions around abortion[xxiv], organizations will overestimate their liability, and interpret regulations conservatively.[xxv] There has also been a measureable “chilling effect” on speech around abortion where new regulations are enacted.[xxvi]
All this said, if Florida lawmakers were truly invested in reducing teen pregnancy, abortions, and improving family relationships, and outcomes for Florida’s youth, HB 1411 would be replaced with legislation mandating statewide, comprehensive, medically accurate sex education.[xxvii]
[i] Center for Health and Gender Equity. The Global Gag Rule. 2002-2016. http://www.genderhealth.org/the_issues/us_foreign_policy/global_gag_rule/ October 8, 2016.
[v] Nathalie Prouvez, Committee on the Elimination of Racial Discrimination, Supplementary Information on the United States, CERD Committee’s 72nd Session. Center for Reproductive Rights (2007) (Young women of color already “lack medically accurate sexuality education… [and] the highest risk group for unintended pregnancy—women of color who are also poor, young, and single—is the same population for whom the consequences of unwanted births are the most severe.”); See also Pamela Kohler, et al., “Abstinence-Only and Comprehensive Sex Education and the Initiation of Sexual Activity and Teen Pregnancy,” Journal of Adolescent Health 42.4 (March 2008); 344–351. (“Young people who received no sex education tended to be black, from low-income non-intact families, and rural areas.”)
[vi]Florida Bill Regarding the Termination of Pregnancies, Rewire.com (2016), https://rewire.news/legislative-tracker/law/florida-bill-regarding-the-termination-of-pregnancies-hb-1411/; Monivette Cordero, Florida’s latest anti-abortion law snares women and clinics in ever-tighter restrictions, Orlando Weekly (April 13, 2016) http://www.orlandoweekly.com/orlando/floridas-latest-anti-abortion-law-snares-women-and-clinics-in-ever-tighter-restrictions-and-is-a-classic-example-of-targeted-regulation/Content?oid=2483734.
[vii] 1991 Fla. Stat. § 390.025(2).
[viii] 2016 Fla. Stat. § 390.025(3).
[ix] 2016 Fla. Stat. § 390.025(1).
[x] 2016 Fla. Stat. § 390.025(4).
[xi] 2016 Fla. Stat. § 390.025(4)(a).
[xii] 2016 Fla. Stat. § 390.025(1).
[xiii] ACLU of Florida Urges Rejection of Harmful Abortion Bills, Statement from Michelle Richardson, ACLU of Florida’s Director of Public Policy, Capital Soup, (February 9, 2016), http://capitalsoup.com/2016/02/09/aclu-statement-on-cs-hb-1411/.
[xiv] 2016 Fla. Stat. § 390.025(1).
[xv] Deborah Rogow, MPH, STRENGTHENING ABORTION REFERRALS: Best Practices, Competencies, and Recommendations for Training Health and Social Service Professionals, Provide, http://provideaccess.org/referralscurriculum/wp-content/uploads/2014/12/Abortion-Referrals-Literature-Review.pdf (Reporting that several studies on unintended pregnancies find that awareness of services and an involvement in referring or providing services – including abortion – is an essential component to reproductive health care); Simmonds, K. and Likis, F. E. (2011), Caring for Women with Unintended Pregnancies. Journal of Obstetric, Gynecologic, & Neonatal Nursing, 40: 794–807.
[xvi] 2016 Fla. Stat. § 390.025(6); Fla. Stat. § 775.082(4)(a); Fla. Stat. § 775.083(1)(d).
[xvii] Referrals for Unintended Pregnancy: A Curriculum for Health and Social Service Providers, Provide, Inc. (2014), http://provideaccess.org/referralscurriculum/. (“[S]ocial service providers… often serve as a critical link to getting women quality… reproductive health care”).
[xviii] See Daniel A. Farber, Commentary, Free Speech Without Romance: Public Choice and the First Amendment, 105 HARV. L. REV. 554, 568 (1991); see also United States v. Williams, 553 U.S. 285, 292 (2008) (“[T]he threat of enforcement of an overbroad law deters people from engaging in constitutionally protected speech, inhibiting the free exchange of ideas.”).
[xix] The Professional Staff of the Committee on Health Policy, Bill Analysis and Fiscal Impact Statement, 9, The Florida Senate (January 20, 2016), https://www.flsenate.gov/Session/Bill/2016/1722/Analyses/2016s1722.hp.PDF. (“The bill will likely have a negative fiscal impact on abortion referral and counseling agencies due to the requirement to register with the AHCA and pay a registration fee.”)
[xx] Jessica Munn; Elizabeth Dudek, Abortion Referral or Counseling Agency Registration, FL ADC 59A-9.035. Proposed Rules (August 12, 2016), https://www.flrules.org/gateway/ruleno.asp?id=59A-9.035.
[xxi] Fla. Stat. § 390.025(4) (“The following are exempt from the requirement to register … (a) [Abortion clinics] licensed pursuant to this chapter , chapter 395 [hospitals], chapter 400 [nursing homes and related care facilities], or chapter 408 [health care administration]; (b) Facilities that are exempt from licensure as a clinic under s. 400.9905(4) [hospitals (395), birth centers (383), abortion clinics (390), adult and adolescent mental health service providers (394), substance abuse services (397), assisted living facilities (429), optometry practices (463), pharmacies (465), dental practices (466), Electrolysis (478), clinical laboratories (483), optical services (484), continuing care providers (651), end-stage renal disease providers authorized under 42 C.F.R. part 405, subpart U; and any entity that provides neonatal or pediatric hospital based health care licensed under 395] and that refer five or fewer patients for abortions per month; and (c) Health care practitioners, as defined in s. 456.001, who, in the course of their practice outside of a facility licensed pursuant to this chapter (390), chapter 395, chapter 400, or chapter 408, refer five or fewer patients for abortions each month.”)
[xxii] Child Welfare Information Gateway. Penalties for Failure to Report and False Reporting of Child Abuse and Neglect, 2. Washington, DC: U.S. Department of Health and Human Services, Children’s Bureau (2016), https://www.childwelfare.gov/pubPDFs/report.pdf. (“In Florida, a mandatory reporter who fails to report as required by law can be charged with a felony.”); Child Welfare Information Gateway, Mandatory Reporters of Child Abuse and Neglect, 2 (2016), https://www.childwelfare.gov/pubPDFs/manda.pdf. (“[Florida is one of] 16 states [that]… specify certain professionals who must report, but also require all persons to report suspected abuse or neglect, regardless of profession.”); See also, Fla. Ann. Stat. § 39.201, Fla. Ann. Stat. § 39.201; Fla. Ann. Stat. § 39.204 (“Only attorney-client and clergy-penitent privileges are permitted.”)
[xxiii] Jill Filopovic, Al Jazeera, America. In Global Health, Abortion Bears the Scarlet A (April, 2014), http://america.aljazeera.com/opinions/2014/4/abortion-stigma-globalmaternalhealthfundingusaid.html. (“In 1994, the Leahy Amendment sought to clarify U.S. funding policies under Helms, stating that the Helms provision against motivating abortion “shall not be construed to prohibit the provision, consistent with local law, of information or counseling about all pregnancy options”… USAID-funded groups are permitted to inform women of all their legal reproductive options — including abortion. Unfortunately, the Leahy Amendment is largely ignored.”)
[xxiv] Jeannie I. Rosoff, Pregnancy Counseling and Abortion Referral for Patients In Federally Funded Family Planning Programs. Family Planning Perspectives, Vol. 8, No. 1 (Jan. – Feb., 1976), pp. 43-46. (“Organized family planning programs funded under Title X of the Public Health Service Act and Title V of the Social Security Act, may feel constrained from making abortion referrals because of the prohibition in the Title X law and Title V against use of federal funds to pay for abortion as a family planning method.”)
[xxv] Brandice Canes-Wrone and Michael C. Dorf. Measuring the Chilling Effect, N.Y.U. L.R., vol. 90, 1095 (2015), http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-90-4-Canes-Wrone_Dorf_0.pdf. (Reporting “a statistically significant correlation between laws forbidding late-term abortions and the reduction of not only late-term but also “near-late-term” abortions… [evidencing that] laws can chill the exercise of constitutional rights beyond their literal coverage.”).
[xxvi] Id. at 1096. (“An individual speaker… does not capture all of the value of speaking, and so she typically will not risk incurring a substantial legal sanction in order to reap the modest reward that comes to her from her speech.”); See also supra, note xvii, Williams, 553 U.S. 285, 292 (2008).
[xxvii] Supra note v Pamela Kohler, et al., 344–351. (“Young people who received comprehensive sex education were significantly less likely to report a teen pregnancy compared to those who received no sex education. In comparing abstinence-only programs with comprehensive sex education, comprehensive sex education was associated with a 50% lower risk of teen pregnancy.”)