For Immediate Release: 9.12.22
Contact: Luz Ortiz, [email protected]
September 12, 2022
Attorney General Maura Healey
1 Ashburton Place
Boston, MA 02108
Sent via U.S. Mail and Email
Re: Civil Rights Protections of Pregnancy Resource Centers
Attorney General Healey:
First Liberty Institute is a non-profit law firm dedicated to defending and restoring religious liberty for all Americans. Massachusetts Family Institute is a nonpartisan public policy organization dedicated to strengthening families in Massachusetts. We represent a coalition of pregnancy resource centers in Massachusetts, including Boston Center for Pregnancy Choices, Abundant Hope Pregnancy Resource Center, Clearway Clinic, Bethlehem House, and Your Options Medical (collectively “PRCs”). Each of our clients are concerned by your office’s recent actions against pregnancy resource centers along with its refusal to enforce the law to protect these centers from the wave of criminal actions taken against them.
Specifically, your letter of July 19, 2022, suggests you may seek civil sanctions
against our clients. See Exhibit 1. As outlined below, any effort by your office to sanction the PRC’s as you described would violate the U.S. Constitution. Further, on July 6, 2022, you issued a “consumer advisory” warning against PRCs and encouraged consumers to file complaints with your office about their work. See Exhibit 2. We ask that you remove the “consumer advisory” you issued on July 6, 2022 and withdraw your letter of July 19, 2022. Further, we ask that you make clear what actions you are taking, or will take, to protect the PRCs. Please direct all communications regarding this issue to us.
Reproductive health facilities, like the PRC’s, provide essential services.
The PRCs’ religious beliefs motivate them to care for women facing unintended
pregnancies. They distribute free diapers, wipes, formula, baby food, blankets, and
clothing. Many offer parenting programs that help equip new parents facing the
important job of raising their children. Others offer free screenings for STD’s along with free pregnancy tests, medical consultations, and professional counseling. For those who respond negatively to their abortion experience, the PRCs provide supportive counseling and mentors. Some even recruit knitters throughout their community who knit sweaters, booties, and blankets that are given—free of charge—to women who request them for their babies.
As reproductive health facilities, our clients also provide essential professional
services. The Massachusetts Department of Public Health licenses at least two of the PRCs as medical clinics who provide medical services under the supervision of a medical doctor. Others employ licensed professional counselors to provide mental health care for women seeking to process their reproductive health decisions.
These are the groups you targeted with your letter: men and women, motivated by their faith to provide medical and professional counseling services and give away diapers, baby wipes, and hand-knitted baby booties to those in need. Rather than protect these faith-based organizations providing professional reproductive health services, as is the duty of your office, your letter has placed them in further jeopardy. More than one has faced violent threats and vandalism of their facilities such that women hoping to obtain free baby formula (in a time of its short supply) and a baby blanket are now scared to approach these reproductive health facilities.
For example, a group calling itself “Jane’s Revenge” violently attacked our client,
Clearway Clinic, the very night you issued your “consumer advisory” against PRCs causing significant economic damage and stoking fear. It was a clear attempt to intimidate and drive away this faith-based, nonprofit organization. This is a crime in the Commonwealth of Massachusetts. A picture of part of the damage is below.
Another facility, pictured below, found graffiti scrawled across their entrance. The phrase, “Not Real Abortion Clinic” unartfully echoes the allegations you, within days of this attack, leveled against the PRCs that provide counseling, medical services, STD screening, and free baby sweaters knitted by volunteers who love babies and their mothers.
Two other facilities we represent arrived to find their buildings splattered with red paint clearly intended to look like blood. Vandals, armed with spray paint, also scrawled threats to their physical security, “Jane’s Revenge,” and symbols for organizations who are known to fire-bomb buildings and physically assault private citizens. No arrests have been made. No criminal defendants identified. And, to our knowledge, you have taken no action to investigate and prosecute Jane’s Revenge or other anarchists.
We are deeply troubled by the hostility you have exhibited, and sanctioned,
towards our clients, all of whom are faith-based organizations simply seeking to live out their faith by serving pregnant women in desperate need of assistance. Instead of applauding the PRCs for the vital work they perform in their communities, your office maliciously accused these centers of posing a threat to “pregnant people” and that“pregnant people” should be warned against visiting them. You have also incorrectly stated that pregnancy resource centers use “deceptive and coercive tactics” when they provide their free, essential services. Even more concerning, you threatened legal action against at least one pregnancy resource center for allegedly interfering with access to abortion services.
Your office’s hostility against our clients’ religious beliefs raises serious concerns
that you intend to take legal action against our clients in violation of their constitutional rights. As detailed below, your threatened course of action likely violates both the Free Speech and Free Exercise Clauses of the First Amendment to the U.S. Constitution. Further, your failure to investigate the crimes committed against our clients and bring the culprits behind those crimes to justice demonstrates your refusal to provide equal protection under the law.
At a minimum, we ask that you outline the actions you have taken and intend to take to protect these PRCs. Has your office directed law enforcement to investigate the violent acts against the PRCs? Have you written a letter to the leadership of “Jane’s Revenge” informing them of the criminal and civil penalties your office may seek for their acts of vandalism and trespass against our clients? Are you pursuing civil sanctions against those interfering with access to reproductive health services, destroying or damaging a reproductive health facility, and intimidating and interfering with persons seeking or providing reproductive health services at these PRCs? Please respond with detailed actions taken by your office—or that your office intends to take—to protect the citizens of your state who work and volunteer at these PRCs to love, counsel, feed, and clothe mothers and their babies at their reproductive health facilities.
We remind you that, as an officer of the Commonwealth of Massachusetts, you
have a duty to all citizens of Massachusetts, including those with whom you may
politically disagree as they knit baby blankets and distribute baby food.
An Attorney General may not target speech she dislikes, nor enforce viewpoints she prefers.
In your July 19 letter, you threaten enforcement action against the PRCs despite the fact that they are engaged in constitutionally protected speech and exercise. Any such enforcement would likely discriminate on the basis of content and viewpoint in violation of the Free Speech Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. “Content-based regulations target speech based on its communicative content” and “are presumptively unconstitutional.” Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 138 S. Ct. 2361, 2371 (2018). Courts heavily scrutinize such government action because “the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dep’t of City of Chi. v. Mosley, 408 U.S. 92, 95 (1972); see also Plyler v. Doe, 457 U.S. 202, 216 (1982) (“The Equal Protection Clause directs that all persons similarly circumstanced shall be treated alike.”).
Thus, while you may disagree with the PRCs’ speech, “the government may not selectively shield the public from some kinds of speech on the ground that they are more offensive than others.” McCullen v. Coakley, 573 U.S. 464, 477 (2014). Your threatened enforcement actions single out entities that discuss the topic of pregnancy, a contentbased distinction that violates the U.S. Constitution.
Further, your threatened enforcement actions discriminate against facilities that hold a viewpoint against abortion. The Supreme Court of the United States has repeatedly made clear that such viewpoint discrimination by the government is strictly prohibited. See Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 811 (1985) (holding that the government violates the First Amendment when it suppresses the viewpoint espoused); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983) (holding that viewpoint discrimination is prohibited regardless of forum).
The government violates the law when it suppresses or excludes private speech
simply because the speech expresses a religious viewpoint. See Shurtleff v. City of Boston, 142 S. Ct. 1583, 1593 (2022) (holding the exclusion of a Christian flag from Boston’s flagraising program is unconstitutional viewpoint discrimination); Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001) (holding that the exclusion of a religious club’s use of school property because it was religious constitutes viewpoint discrimination.); Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) (finding that viewpoint discrimination violates the First Amendment, fosters hostility toward religion, and undermines state neutrality toward religion); Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993) (holding that a government actor may not favor one viewpoint at the expense of another); Widmar v. Vincent, 454 U.S. 263 (1981) (rejecting a college’s exclusion of a religious group’s access to facilities because its policy excluded based upon the viewpoint of the club’s speech).
The Supreme Court of the United States characterizes unlawful viewpoint
discrimination as “an egregious form of content discrimination.” Rosenberger, 515 U.S. at 829; see also id. at 828 (finding “[i]t is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys”); id. at 829 (“The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.”); Cornelius, 473 U.S. at 806 (“[T]he government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject.”); Perry Educ. Ass’n, 460 U.S. at 46 (government may not “suppress expression merely because public officials oppose the speaker’s view”). Our clients emphatically deny and oppose your erroneous comments regarding the vital services they provide to their communities. Your attempts to use the bully pulpit and Massachusetts law as a means to intimidate and silence our clients, though not rising to the level of the vandalism and physical threats they have already faced, expose your hostility to their religious viewpoints. Your office may not require the PRCs to espouse
your preferred viewpoint. To do so is to violate the U.S. Constitution: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
Rather than expend further efforts to prescribe your preferred orthodoxy on the PRCs, we ask that you identify the measures you have taken, or are taking, to ensure their physical safety and maximize the space for the PRCs to advocate for their viewpoints on this important issue.
The Free Exercise Clause protects the PRCs against your threatened
The Free Exercise Clause guarantees to all Americans the “right to believe and profess whatever religious doctrine [they] desire[ ],” even doctrines out of favor with a majority of fellow citizens. Employment Div. v. Smith, 494 U.S. 872, 877 (1990). These beliefs “need not be acceptable, logical, consistent, or comprehensible to others in order to merit . . . protection.” Thomas v. Review Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 714 (1981). Nor is it the role of government to determine whether an adherent has “correctly perceived” the commandments of his religion. Thomas, 450 U.S. at 716. The First Amendment protects not only “the right to harbor religious beliefs inwardly and secretly” but also “does perhaps its most important work by protecting the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through the performance of (or abstention from) physical acts.” Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2421 (2022). Thus, public officials may not act “in a manner intolerant of religious beliefs or restrict practices because of their religious nature.” Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1877 (2021). Nor may they “act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices.” Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm’n, 138 S. Ct. 1719, 1731 (2018). Instead, “[t]he Constitution commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures.” Id.
Here, your office has exhibited alarming hostility towards our clients and their
religious beliefs. On multiple occasions you publicly demeaned the religious beliefs of the PRCs regarding the sanctity of human life. You incorrectly describe them as using “deceptive and coercive” tactics when serving their constituents and state they “provide inaccurate and misleading information” regarding abortion. Such comments are troubling not only because they impermissibly pass judgment on our clients’ religious beliefs, but also attempt to persuade the public that our clients’ religious beliefs are somehow incorrect and dangerous. See id. at 1731; see also Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 725 (2014) (stating it is not the government’s role “to say that . . . religious beliefs are mistaken”). These comments are “inappropriate for [an official] charged with the solemn responsibility of fair and neutral enforcement of [Massachusetts] law” and “cast doubt on the fairness and impartiality of” your office in any legal action it is considering against our clients. Masterpiece Cakeshop, 138 S. Ct. at 1729–31.
The Free Exercise Clause “forbids subtle departures from neutrality” and “covert
suppression of particular religious beliefs.” Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993). Therefore, any government action that creates “even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices” will be “set aside” by courts. Lukumi, 508 U.S. at 547. Your office’s overt animosity towards our clients’ religious beliefs goes far beyond a subtle departure from neutrality. You have placed a finger on the scale, tipping it toward the political position you prefer to be believed and followed. We urge you, instead, to remember your duty to serve Bay Staters of all faiths and to protect the rights of the PRCs
as secured by the U.S. Constitution.
Your office must protect the PRC’s—even if it disagrees with them.
As a civil rights attorney, in private practice you defended buffer zones to protect women from harassment at reproductive health facilities. The PRCs are reproductive health facilities protected by law. See Greenhut v. Hand, 996 F. Supp. 372, 375 (D.N.J. 1998) (“Congress obviously recognized, as does this court, that a woman’s reproductive health encompasses much more than access to a medical or surgical procedure . . . [the Freedom of Access to Clinic Entrances Act (“FACE”)] also applies to facilities offering pregnant women counseling about alternatives to abortion.”); Terry v. Reno, 101 F.3d 1412, 1419 (D.C.Cir.1996) (noting that FACE protects “facilities providing pre-pregnancy and pregnancy counseling services, as well as facilities counseling alternatives to abortion”).
Women are seeking the reproductive health services provided by the PRCs and, as described above, are facing intimidation and harassment—often violent and meant to intimidate access to the reproductive health services they offer. Yet, rather than bring the full weight of your office to bear upon those who commit crimes against reproductive health facilities in your state, you threaten to enforce civil sanctions against our clients
because you disagree with their otherwise protected speech and religious exercise.
It is no defense to dismiss the crimes committed against our clients as protected speech. “The First Amendment does not protect violence.” NAACP v. Claiborne
Hardware Co., 458 U.S. 886, 916 (1982) see also Samuels v. Mackell, 401 U.S. 66, 75, (1971) (Douglas, J., concurring) (“Certainly violence has no sanctuary in the First Amendment, and the use of weapons, gunpowder, and gasoline may not constitutionally masquerade under the guise of ‘advocacy.’”). Your letter and “consumer advisory,” threatening civil sanctions against otherwise protected Constitutional rights, paints with too broad a brush, “broadly curtailing group activity leading to litigation [that] may easily become a weapon of oppression, however evenhanded its terms appear.” NAACP v. Button, 371 U.S. 415, 435–36 (1963). We, therefore, request that you provide what steps you have taken, or will take, to protect the PRCs against the crimes that have been committed against them.
Reproductive health is a subject fraught with emotions and vast areas of disagreement. Our nation has long permitted the space for neighbors to disagree with one another. Much of that is owed to elected officials, like you, who “pause to remember [your] own high duty to the Constitution and to the rights it secures.” Masterpiece Cakeshop, 138 S. Ct. at 1731. This duty includes providing equal protection under the law to all people regardless of their viewpoints or religions. We ask that you respond, in writing within 14 days, to the requests made herein: of removing your July 6, 2022 “consumer advisory,” withdrawing your letter of July 19, 2022, and articulating how you have acted to protect, or will act to protect, our clients.
Thank you for your attention to this matter. If we may be of further service, please do not hesitate to call ( ) or email ().
Jeremy Dys., Senior Counsel Andrew Beckwith, President
Ryan Gardner, Counsel. Sam Whiting, Staff Attorney
First Liberty Institute. Massachusetts Family Institute