140 COLUMBIA JOURNAL OF GENDER AND LAW 39.2  

WHAT’S OLD IS NEW AGAIN: HOW STATE 

ATTORNEYS GENERAL CAN REINVIGORATE UDAP 

ENFORCEMENT TO COMBAT CRISIS PREGNANCY 

CENTER DECEPTION 
 

KATE VLACH 
 

INTRODUCTION 

 

For as long as public health and women’s rights advocates have fought to expand 

access to abortion services, opponents of abortion have tried to stop women from 

choosing this option—whether by taking aim at the procedure’s legal status or by steering 

women away from abortion even as it remains legal. Crisis pregnancy centers (CPCs) are 

proponents of this second approach. These anti-abortion centers are often set up to 

resemble legitimate reproductive health clinics but exist to dissuade women from 

obtaining abortions. Today, there are fewer than 1,000 abortion clinics nationwide1 but as 

many as 3,500 CPCs.2 In some states, CPCs outnumber abortion providers ten to one.3 

The problem with CPCs, however, is not that they advance an anti-abortion perspective. 

It is that many rely on deception to achieve their desired ends. 

 

In 1991 the medical director of a network of abortion providers testified before 

Congress during a hearing on CPC fraud and relayed the story of a patient he had spoken 

to in North Dakota a few weeks prior.4 A young woman in her early twenties had gone to 

a crisis pregnancy center for a pregnancy test and was told the results were negative: She 

 
1 Rachel K. Jones & Jenna Jerman, Abortion Incidence and Service Availability in the United States, 2014, 49 

PERSP. ON SEXUAL & REPROD. HEALTH 17, 20 tbl. 4 (2017). 

 
2 NARAL PRO-CHOICE AMERICA, THE TRUTH ABOUT CRISIS PREGNANCY CENTERS (2017), https://www. 

prochoiceamerica.org/wp-content/uploads/2016/12/6.-The-Truth-About-Crisis-Pregnancy-Centers.pdf 

[https://perma.cc/9SBS-RATT]. 

 
3 Teddy Wilson, ‘Completely Intentional’: Fake Clinics Outnumber Abortion Providers 10 to 1 in Texas, 

REWIRE NEWS (May 24, 2018, 5:23 PM), https://rewire.news/article/2018/05/24/completely-intentional-fake-

clinics-outnumber-abortion-providers-10-1-texas/ [https://perma.cc/8X38-NVZH]. 

 
4 Consumer Prot. & Patient Safety Issues Involving Bogus Abortion Clinics: Hearing Before the Subcomm. 

on Regulation, Bus. Opportunities & Energy of the H. Comm. on Small Bus., 102d Cong. 11 (1991) 

(statement of Ron Fitzsimmons, Exec. Dir, Nat’l Coal. of Abortion Providers). 



 

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wasn’t pregnant.5 After several weeks, she sought a second opinion at another facility 

that revealed she was nineteen weeks pregnant.6 

 

They computed that the first time she went to the [CPC] she was actually 

fourteen weeks pregnant. You wonder why [the CPC] would lie to her 

like this. Well, the answer is very simple. There are no abortion 

providers in that State that perform abortions after fifteen weeks. The 

idea was to prolong the pregnancy so the woman could not get an 

abortion in that State, and to that extent they succeeded, but the woman 

is still going to have an abortion; the only difference is, she is going to 

have to travel to another State at great cost.7 

 

In 2018, an emergency room physician in Connecticut recounted a similar tale of a 

young woman who faced deception-driven delays in accessing an abortion, this time with 

more severe consequences: 

 

She revealed to me that she was hiding her pregnancy from her family 

and had been seeing a women’s center, a crisis pregnancy center, in 

Hartford because she wanted a termination. She told me she had gone 

every few weeks for [the] last few months, but was not given any 

instructions on how to have an abortion yet. Performing her ultrasound, I 

was able to determine her fetus was [twenty-five] weeks and [four] days, 

past the legal limit for abortion. I had to tell her that even though she had 

clearly indicated her desire to terminate . . . months prior, now she had 

no choice in the matter[.]8 

 

These women sought time-sensitive reproductive health care from what they thought 

were legitimate medical providers. Instead, they were lied to about their bodies and 

misled about the laws in their states. The harm they suffered was pronounced—

potentially life-altering. And it risks repetition any time a woman, tricked into thinking 

 
5 Id.  

 
6 Id. 

 
7 Id. 

 
8 NARAL PRO-CHOICE CONN. FOUND., CRISIS PREGNANCY CENTERS: A THREAT TO REPRODUCTIVE FREEDOM 

35 (2018), https://connecticut.prochoiceamericaaffiliates.org/wp-content/uploads/sites/17/2018/03/2018-

CPC-Report.pdf [https://perma.cc/WK7C-6BKQ] [hereinafter NARAL, CT REPT.]. 



142 COLUMBIA JOURNAL OF GENDER AND LAW 39.2  

she is entering an abortion clinic, ends up at one of the nation’s crisis pregnancy centers 

instead. 

 

As the span of these stories demonstrates, the problem of CPC fraud has persisted for 

decades. Over the years, governmental response to this deception has proceeded at a low 

hum with two key periods of activity. One was centered primarily in the 1980s and 

1990s, when a handful of state attorneys general (AGs) used all-purpose consumer 

protection laws to launch investigations and lawsuits to uncover and enjoin CPCs’ 

harmful tactics.9 The other ran from 2009 to 2018, when interest in CPC-specific 

legislation eclipsed AG activity, and multiple city councils and state legislatures passed 

laws requiring CPCs to warn clients about the true nature of their services.10 

 

But in 2018, the Supreme Court dealt a blow to these more recent efforts to protect 

women from CPC fraud in National Institute of Family & Life Advocates v. Becerra, 

when it struck down California’s law requiring CPCs to post disclaimers in their waiting 

rooms and on their advertisements.11 In the wake of that decision, most regulations 

specifically aimed at CPCs are now invalid, leaving states and localities in need of new 

solutions to address the ongoing deception and delays in access to care that CPCs can 

cause. 

 

This Article argues that such a solution can be found by looking back to an existing 

set of consumer protection laws: state Unfair and Deceptive Acts and Practices statutes—

UDAP statutes for short—which have been on the books for decades. Designed to 

combat deceptive practices in the sale or offer of goods and services, it was to these laws 

 
9 See, e.g., Carr v. Axelrod, 798 F. Supp. 168, 176 (S.D.N.Y. 1992) (upholding the use of a UDAP statute to 

enjoin deceptive CPC practices); Mother & Unborn Baby Care, Inc. v. State, 749 S.W.2d 533, 540, 542 (Tex. 

App. 1988); Fargo Women’s Health Org. v. Larson, 391 N.W.2d 627, 629 (N.D. 1986); Jane Gross, 

Pregnancy Centers: Anti-Abortion Role Challenged, N.Y. TIMES (Jan. 23, 1987), https://www.nytimes.com/ 

1987/01/23/nyregion/pregnancy-centers-anti-abortion-role-challenged.html [https://perma.cc/TW2M-7Y8K]; 

Alan Johnson, Fisher Targets “Crisis Pregnancy Centers,” COLUMBUS DISPATCH, Feb. 25, 1993, at 5C; 

Sheryl Harris, Agency Fights Altering of Ads: Akron Pregnancy Services is Told by Ohio Attorney General to 

Stop Calling Itself “Abortion Service.” Agency Sues Lee Fisher’s Office, Citing a Limit to Free Speech, 

BEACON J., June 9, 1993, at D1; Alan Johnson, Fisher, Pregnancy Center Coalition Claim Victory, 

COLUMBUS DISPATCH, Dec. 2, 1993, at 8C [hereinafter Johnson, Victory]; State, Agency Settle Abortion Ad 

Dispute, CLEVELAND PLAIN DEALER, Nov. 19, 1993, at 1B; see also infra Part II.B. 

 
10 See, e.g., CARENET, NAT’L INST. OF FAMILY & LIFE ADVOCATES & HEARTBEAT INT’L, A PRO-ACTIVE 

STRATEGY TO DEFEND YOUR PREGNANCY CENTER AGAINST LEGISLATIVE ATTACKS 13–18 (2008), 

https://www.heartbeatinternational.org/pdf/A_Pro-Active_Strategy.pdf [https://perma.cc/Z5PM-MN2Y] 

[hereinafter CPC LEGISLATIVE REPORT]; see also infra Part II.B. 

 
11 Nat’l Inst. of Family & Life Advocates v. Becerra (NIFLA), 138 S. Ct. 2361 (2018). 



 

39.2 COLUMBIA JOURNAL OF GENDER AND LAW                         143 

 

 

 

that states first turned to curb CPCs’ deceptive tactics, almost always without 

constitutional impediment. Even though UDAP statutes cast state AGs in an active 

enforcement role and equipped them with powerful legal tools, public UDAP 

enforcement actions never reached their full potential. Rather, state UDAP investigations 

of and enforcements against deceptive CPCs were limited to a handful of states and fell 

out of favor in the 2000s as CPC disclaimer efforts took center stage.12 

 

Now, as state AGs rise to prominence on the nationwide policymaking scene, states 

should reinvigorate and update these all-purpose consumer protection tools. Through a 

coordinated campaign of AG enforcement that advances broad readings of current UDAP 

language, along with legislative amendments that clarify and expand the scope of UDAP 

statutes, states can press forward with tackling CPC fraud while avoiding the constraints 

imposed by the Supreme Court’s recent decision. 

 

Section I defines CPCs, describes some of their most dishonest tactics, and 

summarizes the impact of the Supreme Court’s recent ruling on legislation designed to 

curb CPC harm. Section II recommends UDAP statutes as an alternative tool for 

responding to CPC deception and reviews the advantages of a UDAP enforcement 

strategy led by state attorneys general. Section III grapples with and proposes arguments 

for overcoming the imperfect fit between UDAP laws, which typically apply to 

commercial actors, and the regulation of not-for-profit CPCs. Section IV explores 

whether a robust UDAP enforcement campaign can adequately address deception that 

robs individuals of critical decision-making opportunities and proposes a UDAP 

amendment that recognizes decision-making harms. Finally, the Article concludes by 

updating readers on recent CPC-related developments and by suggesting a wrap-around 

campaign of community partnerships and communications efforts to supplement AGs’ 

legal enforcement activities. 

 

Methodologically, this Article focuses on UDAP statutes and case law in the six 

states where governments have legislated to curb CPC deception, as these are the venues  

 
12 Several municipalities and states began passing disclaimer legislation at this time. See, e.g., BALT., MD., 

HEALTH CODE §§ 3-501–3-506 (2009); MONTGOMERY CTY., MD., COUNCIL RES. § 16-1252 (2010); N.Y.C. 

ADMIN. CODE §§ 20-815–20-816 (2011); AUSTIN, TEX., CITY CODE CH. § 10-10 (2012); S.F., CAL, ADMIN. 

CODE CH. §§ 93.1–93.5 (2011); CAL. HEALTH & SAFETY CODE §§ 123470–123473 (West 2015); OAKLAND 

ADMIN. CODE § 5.06.110 (2016); HAW. REV. STAT. § 321-561(b)–(c) (2018); HARTFORD, CONN. CODE §§ 

17.161–17.166 (2017). 



144 COLUMBIA JOURNAL OF GENDER AND LAW 39.2  

where state or local officials are likely to be in search of alternatives to disclosure laws.13 

At the same time, state courts also look to UDAP decisions outside their own 

jurisdictions in light of many UDAP statutes’ common origins in the Federal Trade 

Commission (FTC) Act and other model legislation.14 Thus this Article draws from 

UDAP jurisprudence more broadly when other states offer relevant examples. Although 

UDAP statutes vary considerably across jurisdictions, states that have not yet tackled 

CPC fraud will also find this Article of use. 

 

I. Crisis Pregnancy Centers and Efforts to Curb their Deception 

 

A. CPCs and Their Deceptive Practices 

 

CPCs are anti-abortion centers that often pose as reproductive health clinics but offer 

limited, if any, medical services. They frequently advertise free pregnancy tests, 

ultrasounds, and abortion-related services, but then try to prevent the women who visit 

from obtaining abortion care. Instead, CPC staff and volunteers use a variety of tactics to 

convince women to carry their pregnancies to term. While some CPCs may make their 

anti-abortion stance clear and provide appropriate assistance to women facing unintended 

pregnancies, many do not. In fact, one famous CPC advocate was recorded advising CPC 

operators to rely on concealment and misdirection: “We want to appear neutral on the 

outside. The best call, the best client you ever get is one that thinks they’re walking into 

an abortion clinic.”15 

 

Ninety percent of counties in the United States lack an abortion provider, and in some 

states CPCs outnumber abortion clinics ten to one.16 With free services that appeal to 

 
13 For more thorough treatment of the power of local—as opposed to state-wide—authorities to enforce their 

state’s UDAP regimes, see Kathleen S. Morris, Expanding Local Enforcement of State and Federal 

Consumer Protection Laws, 40 FORDHAM URB. L.J. 1903 (2013). 

 
14 See, e.g., Citaramanis v. Hallowell, 328 Md. 142, 155 (1992) (referring to consumer protection law in 

Massachusetts and Connecticut); ANDREW SERWIN ET AL., CAL. ANTI. & UNFAIR COMP. L. § 19.02, Westlaw 

(Thomas S. Hixson ed., 2017) (“[S]ince these statutes were largely derived from a common source, appellate 

decisions discussing such statutes may provide support for the interpretation of other similar statutory 

schemes . . . Most notable in terms of its extensive interpretative case law is the Texas [UDAP statute].”). 

 
15 Irin Carmon, Caught on Tape: Antiabortion Center Resorts to Scary, Dangerous Lies, SALON (June 25, 

2013, 8:45 PM), https://www.salon.com/2013/06/25/caught_on_tape_crisis_pregnancy_centers_false_ 

dangerous_advice/ [https://perma.cc/LMZ5-B4DD]. 

 
16 Jones & Jerman, supra note 1, at 20; Wilson, supra note 3. 



 

39.2 COLUMBIA JOURNAL OF GENDER AND LAW                         145 

 

 

 

marginalized populations uninitiated to the health systems they are navigating,17 and a 

track record of tricking clients about the services they will receive, deceptive CPCs can 

impose significant health- and autonomy-related costs on unwitting consumers. 

 

This Section summarizes findings from more than a decade’s worth of investigative 

reports, academic studies, news accounts, and law review articles, which suggest that a 

significant number of CPCs engage in some form of deception as part of their operational 

models. For example, in 2006 Congress produced a report detailing the misinformation 

that CPCs distributed about abortion and birth control; it found that eighty-seven percent 

of surveyed centers provided false or misleading information.18 Abortion-rights 

organizations have conducted undercover investigations of CPCs across the country and, 

since 2008, have released comprehensive reports of their findings in at least eleven states: 

From North Carolina to Ohio and New York to California, majorities or significant 

pluralities of CPCs were shown to have lied about abortion risks or the legal and medical 

constraints on abortion access.19 Public health scholars have also surveyed the landscape, 

finding in Georgia, for instance, that fifty-eight percent of the state’s CPCs implied that 

they provided abortions but failed to disclose that this was not the case, and fifty-three 

percent made at least one false or misleading health statement on their websites.20 

 

Collectively, this body of evidence indicates that CPCs engage in multiple types of 

deception and misdirection. These centers often advertise to look like abortion clinics, 

concealing their anti-abortion agenda and the limited nature of their services for as long 

as possible during a patient’s visit.21 Typically, volunteer counselors distribute 

 
17 See Laura S. Hussey, Crisis Pregnancy Centers, Poverty, and the Expanding Frontiers of American 

Abortion Politics, 41 POL. & POL’Y 985, 986 (2013). 

 
18 MINORITY STAFF OF H.R. COMM. ON GOV’T REFORM SPECIAL INVESTIGATIONS DIV., 109TH CONG., FALSE 

AND MISLEADING HEALTH INFORMATION PROVIDED BY FEDERALLY FUNDED PREGNANCY RESOURCE CENTERS 

(2006) (prepared for Rep. Henry Waxman). 

 
19 States with these reports are California, Connecticut, Maryland, Massachusetts, Minnesota, Missouri, 

Montana, New York, North Carolina, Ohio, and Virginia. See NARAL PRO-CHOICE AM., CRISIS PREGNANCY 

CENTERS LIE: THE INSIDIOUS THREAT TO REPRODUCTIVE FREEDOM (2015), https://www.prochoiceamerica.org/ 

wp-content/uploads/2017/04/cpc-report-2015.pdf [https://perma.cc/LRM7-EJ4N] [hereinafter NARAL, 

CPCS LIE]; NARAL, CT REPT., supra note 8, at 2. 

 
20 Andrea Swartzendruber et al., Sexual and Reproductive Health Services and Related Health Information on 

Pregnancy Resource Center Websites: A Statewide Content Analysis, 28 WOMEN’S HEALTH ISSUES 14, 16, 17 

tbl.2 (2018); see also Amy G. Bryant & Erika E. Levi, Abortion Misinformation from Crisis Pregnancy 

Centers in North Carolina, 86 CONTRACEPTION 752, 753 (2012). 

 
21 See, e.g., NARAL, CPCS LIE, supra note 19, at 4–6. 



146 COLUMBIA JOURNAL OF GENDER AND LAW 39.2  

misinformation about the risks of abortion and the efficacy of birth control to scare 

women out of considering either.22 Many CPCs are not staffed by medical professionals, 

although centers increasingly offer keepsake-style ultrasounds to clients as a way of 

conferring legitimacy on their operations and as a means of influencing women’s 

decisions.23 And some CPCs use these ultrasounds to downplay the necessity of taking 

medical action by deceiving women about how far along they are in their pregnancies and 

when abortion is available in their state.24 

 

While these acts cannot all be said to be “lies” in the traditional sense of the word, 

nearly all of them fall somewhere along the deception spectrum. The range of deceptive 

practices embraced by CPCs includes falsehoods by implication, presenting discredited 

scientific opinion as fact, and outright lies.25 Of this array of practices, this Article 

concerns itself primarily with three types: (1) misrepresentations about which services 

CPCs offer (that abortions are available at CPCs when they are not); (2) lies about the 

state of a client’s own body (that she is not pregnant when in fact she is,26 or that she is 

 
22 See, e.g., id. at 8–11. 

 
23 See, e.g., id. at 15. 

 
24 See Part I.A.3. Journalists have corroborated these findings in interviews with women and clinicians. See, 

e.g., Meaghan Winter, “I Felt Set Up”: Why More Women Seeking Abortions Are Ending Up at Anti-

Abortion Pregnancy Centers, COSMOPOLITAN (Dec. 17, 2015), https://www.cosmopolitan.com/politics/news/ 

a50961/medical-crisis-pregnancy-centers/ [https://perma.cc/J245-6YMS]. Congress has also conducted a 

hearing detailing CPCs’ deceptive tactics. Consumer Prot. & Patient Safety Issues Involving Bogus Abortion 

Clinics, supra note 7. 

 
25 See Molly Duane, The Disclaimer Dichotomy: A First Amendment Analysis of Compelled Speech in 

Disclosure Ordinances Governing Crisis Pregnancy Centers and Laws Mandating Biased Physician 

Counseling, 35 CARDOZO L. REV. 349, 355–58 (2013) (describing health-related claims that are entirely 

unsubstantiated or that rely on discredited studies); Beth Holtzman, Have Crisis Pregnancy Centers Finally 

Met Their Match: California’s Reproductive FACT Act, 12 NW. J.L. & SOC. POL’Y 78, 84–87 (2017) (listing 

misinformation about abortion risks and efficacy of contraception, as well as co-location and branding 

strategies that conflate CPCs with abortion clinics). Other falsehoods include inaccurate claims of health risks 

relating to abortion and birth control (that abortion causes breast cancer, infertility, or mental illness or that 

birth control is ineffective and leads to cancer), inaccurate fetal development models, and scare tactics 

involving gory photos and films. See Duane, supra note 25, at 355–58. 

 
26 See Consumer Prot. & Patient Safety Issues Involving Bogus Abortion Clinics, supra note 7, at 251–52 

(declaration of Terri Byrne) (declaring that a CPC told her she was not pregnant when in fact she was); see 

also id. at 384 (statement of Luther Sheets, Dir. Pub. Affairs, Family Health Council, Inc.) (“Of far more 

serious concern to us are those patients, usually young women or teens, who have been told they are not 

pregnant based on the test ‘results’ from a pregnancy test at a fake clinic. They come to one of our clinics 

thinking they have a gynecological problem only to discover that they are, in fact, pregnant and have delayed 

seeking pregnancy care based on their contact with a ‘crisis pregnancy center.’”). 



 

39.2 COLUMBIA JOURNAL OF GENDER AND LAW                         147 

 

 

 

only a few weeks pregnant rather than many);27 and (3) distortions of the legal and 

medical contexts that affect the timing of health care decisions (that abortion is legal until 

very late in pregnancy, or that miscarriage is a likely outcome that should be awaited in 

lieu of medical intervention).28 

 

These three types of practices were chosen because they do not consist of matters of 

opinion or ideological perspectives likely to be protected on free speech or free exercise 

grounds. Rather, they represent an operational model of outright and implied falsehoods, 

deployed to attract customers and adversely affect their decisions—the very types of 

practices UDAP laws were designed to address. 

 

1. Misrepresentations About What Services CPCs Offer 

 

A typical CPC advertisement is not literally false but implies a meaning that is not 

true. For example, the website of a CPC in Maryland features an image of a woman 

superimposed with the following text: “Pregnant? Don’t Want to be? Make an 

appointment.”29 The ad appears below an on-screen menu featuring such options as 

 
27 See Winter, supra note 24. This article gives a real life example of this kind of deception: 

 

When her ultrasound wasn’t conclusive, [CPC] staff did not refer her to a physician or 

another provider, Alison says. Instead, they scheduled her for a second appointment the 

following week . . . Alison came back for two more appointments, until she says center 

staff told her the fetus was older than they had first anticipated. 

 

Id. Because of the misdating and delay, Alison was unable to receive the medication-based, nonsurgical 

abortion she had hoped for. Id. Rather, once she reached a legitimate abortion provider, her only resort was a 

more expensive and more invasive surgical procedure. Id. 

 
28 See Swartzendruber et al., supra note 20, at 18 (“What do you mean that I ‘may not need an abortion’? 

How can you tell? Many women can avoid having to decide what to do with their unintended pregnancy, 

because 1 in 5 of all pregnancies end naturally. Pregnancies that end naturally are not viable, and result in 

what are called miscarriages. Who wants to go through the pain, cost and risk of an abortion if it’s not 

necessary?”). 

 
29 ROCKVILLE WOMEN’S CTR., https://rockvillewomenscenter.com [https://perma.cc/7AT9-5HYU]. Note also 

that during a recent legal challenge to a CPC ordinance in Maryland, lawyers presented evidence that at least 

fifteen women were confused by a Baltimore CPC’s ad campaign and called the center seeking abortion 

services. Petition for Writ of Certiorari at 3–5, Mayor of Balt. v. Greater Balt. Ctr. for Pregnancy Concerns, 

Inc., 138 S. Ct. 2710 (2018) (No. 17-1369). Describing consumers’ confusion, a CPC staffer said they “were 

under the impression from the bus advertisements that we assisted in paying for abortions.” Id. at 11. This 

staffer gave the example of a client who did not seem to understand “abortion alternatives” and wanted to 

schedule an abortion. Id. Not wanting to disabuse women of their misimpressions about the services CPCs 

offer, the CPC director admitted that such advertising was “purposely vague.” Id. at 4, 11. 



148 COLUMBIA JOURNAL OF GENDER AND LAW 39.2  

“Considering abortion?,” “Abortion costs,” “Abortion Pill,” and a list of “Medical 

Services” that includes “Complete Pregnancy and Abortion Options Consultation.”30 In 

context, the ad invites the reader to fill in the gaps: Don’t want to be pregnant, medical 

services, abortion options and costs? This must be an abortion clinic. 

 

2. Lies About Whether a Woman is Pregnant 

 

This Article opens with the story of a woman who was told by a CPC that she was 

not pregnant when, in fact, she was.31 Numerous other women and medical professionals 

have recounted the lies CPCs have told clients about whether they were pregnant and by 

how many weeks.32 Among other accounts is a documentary that shows a woman 

learning that she is several weeks further into her pregnancy than the CPC’s ultrasound 

operator had reported. The director of a legitimate abortion clinic gives her an accurate 

gestational reading and explains that the CPC frequently underestimates the dates of 

women’s pregnancies; the director suspects the CPC does this to delay women past the 

point when abortion is available in their county or state.33 

 

3. Lies About the Decision-Making Context 

 

CPCs have also been shown to lie about the legal and medical context in which a 

woman must make her abortion decision. Some CPCs lie about abortion laws and 

availability: At a CPC in New York City, an investigator posing as a pregnant client was 

told that “in this country you can get an abortion up to nine months” so “you’ve got time 

to think about it.”34 A CPC staffer in Maryland advised a woman not to panic because 

“[a]bortion is legal through all nine months of pregnancy, so you have plenty of time to 

make a decision.”35 But abortion is legal in New York only through the twenty-fourth 

 
30 ROCKVILLE WOMEN’S CTR., supra note 29. 

 
31 See supra notes 4–7 and accompanying text. 

 
32 See Consumer Prot. & Patient Safety Issues Involving Bogus Abortion Clinics, supra note 7, at 251–52 

(declaration of Terri Byrne) (declaring that CPC told her she was not pregnant when in fact she was); see also 

supra note 26. 

 
33 12TH & DELAWARE (HBO Films 2010) at 1:03–1:06, https://vimeo.com/38508436 [https://perma.cc/YK44-

RGW6]. 

 
34 NARAL, CPCS LIE, supra note 19, at 12. 

 
35 Id. 



 

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week of pregnancy,36 and nationwide, abortion access is protected only up to the point of 

viability with rare exceptions for the health of the pregnant woman.37  

 

Other CPCs have misstated the likelihood of miscarriage and the necessity of 

returning for repeat visits, giving women a false impression of the medical reality they 

are confronting. Many CPCs use exaggerated statistics about miscarriage, with some 

citing it as affecting as many as thirty or forty percent of pregnancies;38 the true rate is 

just ten percent.39 For example, a CPC in Nevada reassures potential clients that “you 

may not need an abortion!” and encourages them to wait and “see if you are a candidate 

for a natural pregnancy termination,”40 while a CPC in Maryland promises “if the 

pregnancy isn’t viable, you do not need to go to the expense of the medical procedure.”41 

Finally, by telling women to return for repeat appointments over the course of weeks and 

months, CPCs misrepresent the necessity of these visits while isolating clients from 

legitimate medical help where they might learn the truth about abortion laws and 

miscarriage rates.42 

 
36 N.Y. PENAL LAW § 125.05(3) (McKinney 2018). 

 
37 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992) (affirming states’ “power to restrict 

abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life 

or health”). 

 
38 See NARAL, CPCS LIE, supra note 19, at 12 (claiming a thirty percent miscarriage rate); WOMEN’S CARE 

CENTER, http://www.womenscarecenter.org [https://perma.cc/T58T-6MLD] (claiming a forty percent 

miscarriage rate). 

 
39 See AMER. COLL. OF OBSTETRICIANS & GYNECOLOGISTS, NO. 200, ACOG PRACTICE BULLETIN: EARLY 

PREGNANCY LOSS e197 (2018), https://www.acog.org/-/media/Practice-Bulletins/Committee-on-Practice-

Bulletins----Gynecology/Public/pb200.pdf? dmc=1&ts=20181207T1637252429 [https://perma.cc/32WV-

PC9D] [hereinafter ACOG PRACTICE BULLETIN]. 

 
40 Questions, FIRST CHOICE PREGNANCY SERV., http://www.firstchoicelv.org/questions/abortion/ [https:// 

perma.cc/AV6U-ABJX]. 

 
41 Gestational Age Determination, ROCKVILLE WOMEN’S CTR., https://rockvillewomenscenter.com/ 

gestational-age-determination/ [https://perma.cc/GQ2C-3RJ2]. This is yet another falsehood given that 

incomplete miscarriages often require medical intervention. See ACOG PRACTICE BULLETIN, supra note 39, 

at e197–e202. 

 
42 See NARAL, CT REPT., supra note 8, at 35 (telling the story of a woman who returned to a CPC for 

appointments over several months before visiting a hospital for help); Bill Wallace, S.F. ‘Birth-Control 

Agency’ Probed in Teenager’s Case, S.F. CHRON., June 23, 1986, at 1, NEWSBANK, INC. [hereinafter Wallace, 

Agency Probed] (noting that a teenager was scheduled for repeat appointments over several months); 

NARAL, CPCS LIE, supra note 19, at 13 (describing an investigation of CPCs in Minnesota that found that 



150 COLUMBIA JOURNAL OF GENDER AND LAW 39.2  

B. Thwarted Attempts to Use Disclosure Laws to Prevent Deception 

 

Advocates of reproductive rights and women’s autonomy for years have tried to curb 

the harmful practices of CPCs. One approach popularized in the past decade has been 

CPC disclosure laws. Enacted mostly at the city or county level, disclosure laws require 

CPCs to post signs in their waiting rooms or include disclaimers in their advertisements 

warning clients that CPCs do not offer abortion services or are not licensed medical 

providers. While some scholars have questioned the efficacy of mandating disclosures in 

other consumer settings,43 seven municipalities and two states have passed some type of 

CPC disclosure legislation: Baltimore City and Montgomery County, Maryland; New 

York, New York; Austin, Texas; San Francisco and Oakland, California; Hartford, 

Connecticut; Hawaii; and California.44 

 

All of these laws have faced legal opposition from CPCs and affiliated organizations, 

and most have been enjoined.45 Most prominent among them is California’s Reproductive 

Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act. Enacted 

in 2015, the FACT Act required any CPC in California that operated under a medical 

license to post a sign declaring that the state offers free medical services including 

abortion and any unlicensed CPC had to disclose its lack of licensure.46 A CPC trade 

association known as the National Institute of Family and Life Advocacy (NIFLA) 

 
fifty-three percent of CPCs investigated used tactics like advising women to wait a month before taking 

another pregnancy test). 

 
43 See Omri Ben-Shahar & Carl Schneider, The Failure of Mandated Disclosure, 159 U. PA. L. REV. 647, 709 

(2011) (“[M]andated disclosure cannot reliably improve people’s decisions and thus cannot be a dependable 

regulatory mechanism.”). The authors’ critiques of consumers’ difficulties with spotting and heeding fine-

print disclosures may hold in some settings, but it seems these informational challenges would not extend to a 

simple sign warning women that no trained medical professionals are on staff at the CPC. 

 
44 BALT., MD., HEALTH CODE §§ 3-501–3-506 (2009); MONTGOMERY CTY., MD., COUNCIL RES. § 16-1252 

(2010); N.Y.C. ADMIN. CODE §§ 20-815–20-816 (2011); AUSTIN, TEX., CITY CODE CH. § 10-10 (2012); S.F., 

CAL, ADMIN. CODE CH. §§ 93.1–93.5 (2011); CAL. HEALTH & SAFETY CODE §§ 123470–123473 (West 2015); 

OAKLAND ADMIN. CODE § 5.06.110 (2016); HAW. REV. STAT. § 321-561(b)–(c) (2018); HARTFORD, CONN. 

CODE §§ 17.161–17.166 (2017). 

 
45 See, e.g., Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Coun. of Balt., 879 F.3d 101, 

113 (4th Cir. 2018). Notably, however, San Francisco’s law has withstood challenge because it imposes 

disclosure requirements only remedially if a particular center has been found to violate the ordinance. See 

First Resort, Inc. v. Herrera, 860 F.3d 1263, 1276 (9th Cir. 2017). Oakland’s ordinance is similarly patterned 

and thus resistant to challenge. OAKLAND ADMIN. CODE § 5.06.110(3) (2016). 

 
46 CAL. HEALTH & SAFETY CODE §§ 123470–73 (West 2015). 



 

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challenged these disclosure requirements, and in 2018 the Supreme Court ruled them 

unconstitutional in National Institute of Family & Life Advocates v. Becerra (NIFLA).47 

The NIFLA Court held 5–4 that the FACT Act’s disclosures violated the First 

Amendment by compelling speech on content-based grounds.48 The majority decided that 

the waiting-room disclosures for licensed CPCs impermissibly altered the content of the 

centers’ usual abortion-related communications, and that the advertising disclosures for 

unlicensed centers unduly burdened speech because the state-mandated text threatened to 

drown out CPCs’ own messages.49 The dissent pointed out that the Court historically has 

upheld speech regulations on public health grounds—including laws that compel abortion 

providers to deliver state-scripted patient counseling50—but the majority distinguished 

CPCs as occupying a space that was neither truly commercial nor fully medical, meaning 

the state had to clear a higher bar if it wanted to categorically regulate CPC speech.51  

 

NIFLA’s consequences have rippled through the regulatory landscape. California’s 

FACT Act is halted in its tracks. Two days after issuing the NIFLA decision, the Court 

declined to hear a similar case out of Baltimore, thereby cementing the permanent 

injunction of that city’s disclosure ordinance.52 And Hawaii has agreed to a permanent 

injunction of its CPC disclosure law in light of NIFLA.53 It seems safe to say that 

disclosure ordinances will no longer be the weapon of choice for most advocates seeking 

to combat confusion about reproductive health services.54 

 
47 Nat’l Inst. of Family & Life Advocates v. Becerra (NIFLA), 138 S. Ct. 2361 (2018). 

 
48 Id. at 2378. 

 
49 Id. 

 
50 Id. at 2385 (Breyer, J., dissenting), 2372. 

 
51 Id. at 2371. 

 
52 Mayor of Balt. v. Greater Balt. Ctr. for Pregnancy Concerns, Inc., 879 F.3d 101 (2018), cert. denied, 138 S. 

Ct. 2710 (2018). 

 
53 Calvary Chapel Pearl Harbor v. Suzuki, No. 17-00326-DKW-KSC (D. Haw. Sept. 20, 2018) (“In light of 

the United States Supreme Court’s decision in Nat’l Inst. of Family & Life Advocates v. Becerra and the 

parties’ Stipulation For Entry of Permanent Injunction and Final Judgment in Favor of Plaintiffs, it is hereby 

ORDERED [that Hawaii’s CPC statute be permanently enjoined.]”). 

 
54 Notable exceptions to this assertion are the San Francisco and Oakland laws, the former of which has 

withstood challenge due to its distinctive formulation and the latter of which is similarly patterned and thus 

resistant to free speech claims. These ordinances escape the reach of NIFLA’s reasoning because, rather than 

requiring all CPCs to post signs, they mandate disclosure only as a remedy for centers found in violation of 



152 COLUMBIA JOURNAL OF GENDER AND LAW 39.2  

II. UDAP Statutes and Attorneys General: The Case for Public Enforcement of 

Longstanding Consumer Protection Law in the CPC Context 

 

Because deception is key to many CPCs’ business models, it makes sense to respond 

with UDAP statutes—laws explicitly designed to fight deception. And since UDAP 

statutes were initially designed with state attorneys general as their primary enforcers and 

still come with significant enforcement advantages for these officials, AGs in states with 

thwarted CPC disclosure laws should now consider UDAP actions instead. Although a 

robust constitutional analysis of public UDAP enforcement is outside the scope of this 

Article, it is important to mention from the outset that a significant advantage of UDAP 

laws as a solution to CPC fraud is their avoidance of the types of constitutional objections 

raised by the NIFLA Court. Indeed, many AGs who pursued UDAP cases when 

responding to CPC fraud in the 1980s and 90s prevailed in the face of First Amendment 

and Due Process challenges.55 For instance, a New York CPC facing an AG-initiated 

UDAP action claimed that the UDAP statute was “overbroad, vague, improperly applied 

and unrelated to any valid legislative purpose.”56 The CPC operator also sought 

compensation for the “chilling effect” the enforcement had on his First Amendment 

rights.57 The federal court dismissed the First Amendment claim, noting the lack of any 

evidence that “the enforcement action[] is motivated . . . by a purpose to retaliate against 

or deter the plaintiff’s exercise of his right to speak against abortion.”58 The case was 

 
the law’s truth-in-advertising provisions. This model resembles a local UDAP ordinance that penalizes CPCs 

only if they run afoul of non-deceptive activity laws. See First Resort, Inc. v. Herrera, 860 F.3d 1263, 1276 

(9th Cir. 2017); S.F. ADMIN. CODE § 93.5(b)(2) (2011); OAKLAND ADMIN. CODE § 5.06.110(3) (2016). 

 
55 Carr v. Axelrod, 798 F. Supp. 168, 176 (S.D.N.Y. 1992); Mother & Unborn Baby Care, Inc. v. State, 749 

S.W.2d 533, 540, 542 (Tex. App. 1988) (finding Texas’s UDAP statute “was not applied to appellants 

specifically to penalize any speech or conduct protected by the [F]irst [A]mendment,” and that “[p]rotecting 

the innocent public from those deliberately engaging in deceptive practices is a justifiable compelling state 

interest”); Fargo Women’s Health Org. v. Larson, 391 N.W.2d 627, 629 (N.D. 1986) (“We further concluded 

that the preliminary injunction did not unconstitutionally infringe upon the Help Clinic’s First Amendment 

rights.”). 

 
56 Carr, 798 F. Supp. at 174. 

 
57 Id. 

 
58 Id. at 174–76 (“Indeed, the correspondence between the plaintiff and the Assistant Attorney General . . . 

indicate that the State was attempting to modify how the clinics solicited and conducted business and did not 

intend to interfere with any speech.”). However, in 2017, a New York court placed some limits on the AG’s 

powers to investigate CPC misconduct, deciding that that AG could subpoena only those CPC records 

reasonably related to the charges brought as opposed to the wide array of documents the AG originally 

sought. Evergreen Ass’n, Inc. v. Schneiderman, 153 A.D.3d 87, 98 (N.Y. App. Div. 2017). 



 

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remanded to state court,59 where ultimately the AG’s office won an injunction prohibiting 

the deceptive behavior.60 Similar results were obtained in Texas and North Dakota.61 

 

The hope and expectation are that the enforcement of UDAP laws against CPCs will 

fare differently than the disclosure requirement struck down in NIFLA. First, the 

challenged disclosure law at issue in NIFLA regulated all CPCs ex ante without regard to 

whether their advertisements or other speech were false.62 In contrast, UDAP statutes’ 

penalties are imposed ex post, based on particularized findings that an organization has 

engaged in deception. Second, although constitutional jurisprudence has granted more 

protections to false speech in the years since AGs first took on CPC fraud, the Supreme 

Court’s 2012 decision in United States v. Alvarez has established the centrality of harm to 

the analysis of whether falsehoods are protected.63 This suggests that, where cognizable 

harm can be demonstrated, protection is diminished. Thus, whereas the NIFLA Court 

objected that disclosures were required of every CPC without adequate substantiation that 

harm had occurred,64 a UDAP action based on evidence that a CPC’s lies have caused 

confusion and delays constitutes permissible regulation of false, harmful—and therefore 

unprotected—speech.65 

 

This Section introduces UDAP statutes and describes attributes of these laws that 

could be brought to bear on deceptive CPCs. It then explores the central role of state AGs 

 
59 Carr, 798 F. Supp. at 176. 

 
60 According to an AG representative, the CPC was required “to stop soliciting women for counseling through 

fraud and to make clear to potential clients that [the CPC was] an anti-abortion advocacy group.” Molly Maeve 

Eagan, Like a Prayer: God & Abortion at the Pregnancy Support Center, CHRONOGRAM (June 1, 2004), 

https://www.chronogram.com/hudsonvalley/like-a-prayer-god-and-abortion-at-the-pregnancy-support-

center/Content?oid=2172410&showFullText=true [https://perma.cc/7WNH-PFXR]. 

 
61 Fargo Women’s Health Org. v. Larson, 391 N.W.2d 627, 629 (N.D. 1986); Mother & Unborn Baby Care, 

Inc. v. State, 749 S.W.2d 533, 540, 542 (Tex. App. 1988). 

 
62 NIFLA, 138 S. Ct. at 2377 (critiquing the requirement of disclosures for CPCs “no matter what the 

facilities say on site or in their advertisement”). 

 
63 567 U.S. 709, 719 (2012). 

 
64 NIFLA, 138 S. Ct. at 2377 (“California has not demonstrated any justification for the unlicensed notice that 

is more than ‘purely hypothetical.’”). 

 
65 Alvarez, 567 U.S. at 719. Further, because UDAP laws are not viewpoint-specific, applying instead to a 

broad range of deceptive practices that affect consumers, an AG’s enforcement efforts would not be 

vulnerable to the same type of sweeping facial challenge as was launched in NIFLA. 



154 COLUMBIA JOURNAL OF GENDER AND LAW 39.2  

in UDAP enforcement and the powerful tools that UDAP statutes offer to state officials 

before reviewing major AG UDAP actions from the first wave of response to CPC fraud 

as a means of demonstrating the potential these laws hold for combatting CPC deception 

today.  

 

A. Unfair and Deceptive Practices as They Apply to CPCs 

 

UDAP statutes are state laws that define and prohibit unfair or deceptive practices 

and provide for enforcement and remedies.66 These statutes vary in form and scope. Some 

include detailed lists of prohibited practices, while others use broader language, leaving 

courts or state agencies (or both) to flesh out their meaning. Some define false advertising 

as a type of deceptive practice while others have adjunct statutes that ban false 

advertising as a separate offense. All statutory schemes provide for public enforcement, 

often through the state attorney general.67 

 

In understanding how UDAP statutes apply to CPCs, as with any project in statutory 

construction, the text itself is the primary guide. And, because of their common origins in 

the federal FTC Act, most UDAP laws can be interpreted with reference to one another.68 

Courts have also looked to policy concerns that informed the adoption of UDAP 

legislation or engrafted common law elements onto these statutes.69 

 
66 This Article refers to state consumer protection laws as Unfair and Deceptive Acts or Practices laws or 

UDAP laws, even if the statute bears a different title in that state. Most states’ UDAP provisions cover unfair 

and deceptive trade practices including false advertising within a single chapter in the state’s code and 

provide public and private remedies under the same chapter. But in a few states—most notably New York 

and California—relevant provisions are spread across multiple articles of the code. Unfair practices may be 

prohibited in one chapter and false advertising in another. Private remedies might be codified in the consumer 

law code while public enforcement is authorized in the business code. Nevertheless, these multiple statutes 

have been treated as falling under the singular UDAP umbrella. 

 
67 See Dee Pridgen, The Dynamic Duo of Consumer Protection: State and Private Enforcement of Unfair and 

Deceptive Trade Practices Laws, 81 ANTITRUST L.J. 911, 915 (2017). 

 
68 In fact, California, Hawaii, Maryland, and Texas (as well as twenty-nine other states and the District of 

Columbia) share the approach of enumerating specific practices by way of defining what is “deceptive.” See 

SERWIN ET AL., supra note 14, at § 19.02. 

 
69 See the following sources for examples of courts reading into UDAP statutes elements not enumerated in 

the text: James P. Nehf, Textualism in the Lower Courts: Lessons From Judges Interpreting Consumer 

Legislation, 26 RUTGERS L.J. 1, 38–39 (1994); DEE PRIDGEN & RICHARD M. ALDERMAN, CONSUMER 

PROTECTION AND THE LAW § 3.2 (2019) (“A few courts seem to read a requirement of intent to deceive or 

something like it into their consumer protection statutes.”); id. at 3.5 (“A number of courts still cling to the 

old notions of justifiable reliance.”); id. at 3.6 (“In many states, consumers may not bring a private suit unless 



 

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A typical UDAP statute reads: “False, misleading, or deceptive acts or practices in 

the conduct of any trade or commerce are hereby declared unlawful” and goes on to 

define the prohibited acts either categorically or with a laundry list approach.70 

California, Hawaii, Maryland, and Texas share the approach of enumerating a laundry list 

of deceptive practices rather than attempting a conceptual definition of “deceptive.”71 

New York’s UDAP statute broadly outlaws “deceptive practices” without much 

additional elaboration, and Connecticut leaves it to its regulatory authority and the courts 

to interpret what constitutes deception.72 But no matter how these terms are defined, some 

aspect of CPC conduct is bound to satisfy the deceptive or unfair element of the statute. 

 

Whether spelled out in the text or interpreted by agencies and courts, UDAP-

prohibited practices that would reach a CPC’s conduct include: (1) making false 

representations about the quality or nature of services, (2) making false or misleading 

statements in any advertisement, and (3) withholding relevant information if the 

nondisclosure is designed to influence the transaction.73 California, Texas, and Hawaii’s 

laundry list UDAP laws proscribe representing that services have characteristics or 

benefits that they do not have or are of a standard or quality that they are not.74 As to 

false advertising, Connecticut prohibits advertisements that contain misrepresentations 

about a service’s “nature, characteristics, . . . benefits, . . . or qualities,”75 while other 

states like New York and California ban deceptive advertising more broadly.76 Hawaii 

also includes a catch-all category for activity likely to create confusion or 

 
they show they have been injured . . . In effect, this requires private plaintiffs to prove that they actually 

relied on the alleged misrepresentation.”). 

 
70 See, e.g., TEX. BUS. & COM. CODE ANN. § 17.46 (West 2019); KY. REV. STAT. ANN. § 367.170 (West 

2020). 

 
71 SERWIN ET AL., supra note 14, at § 19.02. 

 
72 N.Y. PENAL LAW § 190.20 (McKinney 2018); CONN. GEN. STAT. § 42-110b (2019). 

 
73 See, e.g., TEX. BUS. & COM. CODE ANN. § 17.46(24) (West 2019); N.Y. PENAL LAW § 190.20 (McKinney 

2018). 

 
74 CAL. CIV. CODE § 1770 (West 2018) (defining transaction as the making of and performance pursuant to an 

agreement, whether or not it is a contract); TEX. BUS. & COM. CODE ANN. § 17.46(5), (7) (West 2018); HAW. 

REV. STAT. § 481A-3 (2018). 

 
75 CONN. AGENCIES REGS. 42-110b-18 (1989). 

 
76 N.Y. PENAL LAW § 190.20 (McKinney 2018); CAL. BUS. & PROF. CODE § 17500 (West 2018). 



156 COLUMBIA JOURNAL OF GENDER AND LAW 39.2  

misunderstanding.77 And in a very loose reading of deceptive acts and practices, 

California’s courts have proclaimed that, to bring a UDAP claim, “one need only show 

that ‘members of the public are likely to be deceived.’”78 

 

That UDAP laws often extend to failure to disclose and implied misrepresentations is 

particularly apt in the CPC context. Texas includes as a deceptive practice the failure to 

disclose information about a service if that failure is intended to induce a transaction the 

consumer otherwise would have avoided.79 And California’s UDAP statute has been 

found to apply to “a perfectly true statement couched in such a manner that it is likely to 

mislead or deceive the consumer, such as by failure to disclose other relevant 

information.”80  

 

Some courts have found that a UDAP violation for failure to disclose occurs as soon 

as a consumer is led by a deceptive advertisement to contact an organization—even if 

subsequent curative disclosures are made and even if no sale or exchange occurs.81 Take 

for instance, the following discussion of a misleading ad run by a car dealership: 

 

The theory . . . is that the consumer, supplied with sufficient and accurate 

information . . . [can] make an intelligent, rational decision and that the 

advertiser should supply the information . . . . If the consumer must go to 

the business premises of the dealer for the [omitted information], the 

consumer is put in a position in which the retailer may exert pressure, . . . 

and the consumer cannot reflect or make comparisons.82 

 

 
77 HAW. REV. STAT. § 481A-3 (2018). 

 
78 Bank of the West v. Superior Court, 833 P.2d 545, 553 (Cal. 1992). 

 
79 TEX. BUS. & COM. CODE ANN. § 17.46(24) (West 2018). 

 
80 A UDAP action “may be based on representations to the public which are untrue, and also those which 

may be accurate on some level, but will nonetheless tend to mislead or deceive . . . A perfectly true statement 

couched in such a manner that it is likely to mislead or deceive the consumer, such as by failure to disclose 

other relevant information, is actionable under the UCL.” Paduano v. Am. Honda Motor Co., 88 Cal. Rptr. 3d 

90, 103–04 (Ct. App. 2009) (quoting Linear Technology Corp. v. Applied Materials, Inc., 61 Cal. Rptr. 3d 

221, 236 (Ct. App. 2007)) (internal citations omitted). 

 
81 State v. Amoco Oil Co., 293 N.W.2d 487, 493 (Wis. 1980) (citing Ohralik v. Ohio Bar Assn., 436 U.S. 

447, 457 (1978)). 

 
82 Id. 



 

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Whether or not this theory’s premise is accurate—that consumers will see and read 

disclaimers—its underlying rationale applies equally to a woman seeking to secure 

abortion services as it does to someone looking to buy a new car. If the consumer initially 

does not have “sufficient and accurate information” about the nature of the business she 

is patronizing, learning the truth upon reaching the CPC will not cure the decision-

making harm. Instead, the “consumer is put in a position in which the [CPC] may exert 

pressure” and she “cannot reflect or make comparisons” about her options.83 

 

Finally, where UDAP laws refer to unfair or unconscionable practices, courts will 

deem the behavior a UDAP violation if an individual or a business unfairly takes 

advantage of a client. This includes abusing a position of trust to influence a consumer’s 

decisions. For example, a Texas attorney who represented two clients with conflicting 

interests was found in violation of that state’s UDAP statute because he used this position 

of trust to unfairly persuade one client to settle her claim for less than she otherwise 

would have.84 

 

Given the examples of misleading promotional materials that imply that CPCs 

provide abortion services, the lies about a woman’s pregnancy status and duration, and 

the falsehoods about abortion laws and miscarriage rates, UDAP statutes seem a natural 

place to start curbing deception. 

 

B. The Role and History of Attorneys General in Enforcing UDAP Laws to 

Fight CPC Deception 

 

Existing consumer protection law and state AGs go hand in hand. Section II.B. 

argues that the immense legal and logistical enforcement advantages that UDAP statutes 

afford AGs uniquely position these officials to tackle the problem of CPC deception, a 

problem that might go unaddressed if consumers had to bring suits on their own. Further, 

the recent ascendance of state AGs as arbiters of national policy priorities offers those 

interested in combatting CPC fraud the opportunity to put this problem and its once-

popular solution back on the agenda. 

 

Finally, Section II.B. traces the history of AGs’ response to CPC fraud using various 

powers granted by UDAP laws—including investigations, settlement agreements, and 

lawsuits—to demonstrate a viable path forward for combatting deceptive interference 

with women’s health care decisions. The bulk of public UDAP enforcement against 

 
83 Id. 

 
84 Bellows v. San Miguel, No. 14-00-00071-CV, 2002 WL 835667 (Tex. App. May 2, 2002). 



158 COLUMBIA JOURNAL OF GENDER AND LAW 39.2  

deceptive CPCs was concentrated in the 1980s and mid-90s, when states ranging from 

California to Texas and Ohio to New York brought consumer protection suits in 

relatively quick succession.85 Part of this coincidence of timing was surely tied to the 

proliferation of CPCs during that period as the anti-abortion movement formalized its 

operations.86 And some was likely attributable to pro-choice organizations’ coordinated 

campaigns to spur AG action.87 But part of this clustering of UDAP action is no doubt 

due to state-to-state transmission of a viable legal solution for tackling a very public and 

politicized problem. Although it is not entirely clear why states pivoted away from 

enforcing UDAP statutes, evidence suggests that abortion rights groups began 

encouraging states to introduce CPC disclosure requirements as early as 2000, and by the 

mid-2000s, CPC-specific legislation seems to have eclipsed UDAP statute enforcement 

as the predominant remedy for CPC fraud.88  

 

This rise and fall of UDAP statute enforcement as the preferred response to deceptive 

CPCs suggests that state policy makers—whether in the legislative, executive, or, as 

some might argue, judicial branch—are not immune to policy zeitgeists.89 This is why 

 
85 See, e.g., Carr v. Axelrod, 798 F. Supp. 168, 176 (S.D.N.Y. 1992); Mother & Unborn Baby Care, Inc. v. 

State, 749 S.W.2d 533, 540, 542 (Tex App. 1988); Fargo Women’s Health Org. v. Larson, 391 N.W.2d 627, 

629 (N.D. 1986). 

 
86 See Holtzman, supra note 25, at 81 (“Throughout the 1980s and 1990s, CPCs continued to grow, due in 

part to financial support from pro-life institutions, including the Christian Action Council (now known as 

‘Care Net’) and NIFLA.”). 

 
87 See Consumer Prot. & Patient Safety Issues Involving Bogus Abortion Clinics, supra note 7, at 365–66 

(statement of Betty Menear, State Coordinator, Ohio Religious Coal. for Abortion Rights) (“[W]e worked 

with a coalition of pro-choice organizations, continuing to collect affidavits and testimony from women all 

over Ohio who had gone to these bogus clinics.”); id. at 35 (statement of Deanna Duby, Deputy Legal Dir., 

People for the Am. Way) (“Our investigation culminated with the filing of a complaint in July 1991 with the 

Consumer Protection Division of the office of the Maryland attorney general. We alleged numerous 

violations of the State’s Consumer Protection Act.”). 

 
88 By way of example, a 2008 report issued by three national CPC organizations indicates that abortion rights 

group NARAL Pro-Choice America suggested in a toolkit published in 2000 that states introduce “anti-

pregnancy center” legislation. CPC LEGISLATIVE REPORT, supra note 10, at 13–18. The CPC organizations’ 

report also asserts that least five states considered bills regulating CPCs in 2006 and 2007, and the report 

advised continued vigilance to defeat CPC legislation in the future. Id. In contrast, the report’s treatment of 

attorneys general investigations suggested that CPCs considered ongoing UDAP statute enforcement to be a 

realistic possibility only in New York. Id. 

 
89 Political scientist John Kingdon offers a model that explains how an issue’s time arises based on the 

convergence of three agenda-setting processes: (1) problem recognition, (2) policy proposals, and (3) political 

forces. When all three align, the confluence creates a policy window—a moment of opportunity when 



 

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now, as AGs are collectively establishing themselves as the “fourth branch of 

government,” an intentional project of renewed UDAP enforcement could set off a chain 

reaction, inspiring other states to join the effort.90 Ultimately, by bringing CPC fraud into 

national focus, these actions might inspire legislators and judges to assist in the effort of 

updating UDAP statutes to address ongoing harms (as discussed in Sections III.B. & 

III.D.). 

 

1. Why Attorneys General? 

 

Consumer protection law has long cast state attorneys general as its central figures. 

Congress authorized the FTC to enforce consumer protection laws at the federal level, but 

this lone agency lacked the capacity to tackle the full breadth of fraudulent and harmful 

activity. When states took up the charge and created their own versions of the FTC Act, 

or UDAP laws, they relied almost exclusively on public agents, typically the AG, to carry 

them out.  

 

As such, these statutes often grant AGs powerful and effective enforcement tools 

unavailable to any other party. As one state’s high court put it: “The very purpose of the 

Attorney General’s involvement is to provide an efficient, inexpensive, prompt and broad 

solution to the alleged wrong.”91 For instance, the early UDAP powers of Massachusetts’ 

AG “were sweeping, including the right to issue regulations defining unfair and deceptive 

practices.”92 Many AGs were also empowered to bring class actions on behalf of 

consumers. Despite the addition of citizen’s suit provisions in subsequent years, state 

attorneys general still enjoy legal, practical, and symbolic advantages in enforcing these 

laws that were originally designed with their offices in mind. The following sections 

address these three types of advantages—legal, practical, and symbolic—in turn. 

 

 

 

 
government focuses its attention on the issue. When these forces are out of alignment, the idea fails to catch on 

in the first place or retain its hold if it ever achieved prominence. JOHN KINGDON, AGENDAS, ALTERNATIVES, 

AND PUBLIC POLICY 165–72 (2d ed. 1995). 

 

90 See Alexander Burns, How Attorneys General Became Democrats’ Bulwark Against Trump, N.Y. TIMES 

(Feb. 6, 2017), https://www.nytimes.com/2017/02/06/us/attorneys-general-democrats-trump-travel-ban.html 

[https://perma.cc/6EGW-XN3M]. 

 
91 Pridgen, supra note 67, at 916. 

 
92 Id. 



160 COLUMBIA JOURNAL OF GENDER AND LAW 39.2  

a. Legal Advantages 

 

AGs can avoid many of the procedural barriers that keep private plaintiffs out of 

court. The first such barrier is standing. As in any civil suit, courts often find that private 

UDAP plaintiffs who are unable to demonstrate injury-in-fact lack standing and cannot 

sue.93 Second, even though UDAP legislation was designed to eliminate the constraints of 

common law torts,94 in some states, elements such as intent to deceive and justifiable 

reliance have crept back into private plaintiffs’ proceedings. Consumer law expert Dee 

Pridgen has collected multiple examples of private consumer protection actions where 

courts have engrafted tort elements onto the UDAP statute.95 In Maryland, for instance, it 

appears that as the case law has evolved, consumers bringing private enforcement actions 

often must prove reliance.96  

 

Third, some states, such as California, restrict private enforcement action to 

consumers who have “lost money or property.”97 As the National Consumer Law Center 

puts it, under UDAP laws like these “consumers who have suffered an intangible injury 

such as invasion of privacy or who seek injunctive relief to prevent threatened harm are 

left out.”98 Similar issues plague the citizen enforcement provisions in Connecticut.99 As 

discussed below, clients who are lured to CPCs under false pretenses may be able to 

show at least nominal financial harm for misspent bus fare or a few hours’ lost wages, but 

it is more direct and comprehensive for AGs to bring suits for injunctive relief and to 

 
93 In Kjolsrud v. MKB Mgmt. Corp., 669 N.W.2d 82 (N.D. 2003), an anti-abortion advocate sued an abortion 

clinic under North Dakota’s UDAP law for distributing brochures that she saw as deceptive because they 

rejected a long-debunked link between abortion and breast cancer. The court dismissed her suit for lack of 

standing because the woman had not actually read the brochures before filing suit and therefore had suffered 

no injury in fact. Id.; see also Daniel J. Faria, Advertising for Life: CPC Posting Laws and the Case of 

Baltimore City Ordinance 09-252, 45 COLUM. J.L. & SOC. PROBS. 379 (2012) (providing further discussion of 

barriers to private citizen suits). 

 
94 Pridgen, supra note 67, at 917. 

 
95 See, e.g., PRIDGEN & ALDERMAN, supra note 69. 

 
96 See CAROLYN L. CARTER ET AL., NAT’L CONSUMER LAW CTR., CONSUMER PROTECTION IN THE STATES: A 

50-STATE EVALUATION OF UNFAIR AND DECEPTIVE PRACTICES LAWS 17 (2018), https://www.nclc.org/issues/ 

how-well-do-states-protect-consumers.html [https://perma.cc/B5G4-LGN3] [hereinafter CARTER OVERVIEW]. 

 
97 CAL. BUS. & PROF. CODE § 17535 (West 2018). 

 
98 CARTER OVERVIEW, supra note 96, at 54. 

 
99 See id. 



 

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punish harm to the public than for individual plaintiffs to use these minimal financial 

damages as a foot in the courtroom door. 

 

AGs, in distinction, do not need to prove standing and, most importantly for putting a 

stop to CPC deception, face less demanding thresholds for enjoining harmful behavior. 

An AG can obtain a court injunction by showing that it is needed to protect the public 

interest, a standard more easily met than the demonstration of irreparable harm required 

of private plaintiffs.100 The divergent outcomes of two lawsuits against the same Texas 

CPC—one brought in 1985 by women who had been misled and the other brought by the 

state AG shortly after the first suit failed—demonstrate the consequences of these 

different standards. In the private enforcement action in 1985, Mother & Unborn Baby 

Care, Inc. v. Doe, three women brought UDAP claims against a CPC in Fort Worth that 

advertised in the phonebook as a medical clinic offering abortion information and 

services.101 The women visited the CPC expecting to terminate their pregnancies but were 

instead given pregnancy tests, questioned about their sexual histories, and subjected to a 

film about the dangers of abortion.102 Although a lower court issued a temporary 

injunction that barred the CPC from advertising abortion services, a Texas appellate court 

reversed, holding that the women did not face an ongoing threat of irreparable injury 

from the CPC (what damage had been done was done) and thus could not satisfy the legal 

standard for an injunction. The appeals court stated that although they sympathized with 

the women’s plight, “that cannot change our opinion that . . . appellees have no 

standing.”103 In contrast, in the public enforcement action that followed and survived 

appeal in 1988, Mother & Unborn Baby Care, Inc. v. State, the Texas AG’s office sued 

under the same UDAP provisions, obtaining a judgment against the CPC for multiple 

violations.104 The appeals court upheld the lower court’s remedies, which included 

mandating disclosures in future CPC advertising, assessing civil penalties for violations 

of the UDAP and the temporary injunction, and levying of attorney’s fees.105 

 

 
100 See Pridgen, supra note 67, at 920 n.44. 

 
101 689 S.W.2d 336 (Tex. App. 1985). 

 
102 Id. at 337. 

 
103 Id. at 339 (“There is no question that appellant’s employees purposefully attracted pregnant women to 

their facility by disseminating information which could lead these women to believe that abortions were 

available there.”). 

 
104 749 S.W.2d 533, 536 (Tex. App. 1988). 

 
105 Id. 



162 COLUMBIA JOURNAL OF GENDER AND LAW 39.2  

b. Practical Advantages 

 

Besides the advantageous legal standards, AGs are preferred UDAP enforcers for a 

number of practical and logistical reasons. Costs and intimidation mean that chances are 

slim that any individual woman who is tricked by a CPC will independently bring a 

lawsuit. Many individuals in need of the free services CPCs promise are teenagers or 

low-income people unfamiliar with navigating the legal system and unable to afford 

expert legal advice.106 On top of that, a woman who has sought a sensitive health service 

may hesitate to expose herself to public scrutiny as the named plaintiff in a lawsuit. AGs, 

in contrast, offer the power of the state and the ability to bring action on behalf of 

multiple individuals. They can address standalone complaints backed by the power of the 

state but are also positioned to identify patterns of violations and build stronger cases 

with evidence gathered from multiple consumer perspectives. 

 

c. Symbolic Advantages 

 

In this moment, state AGs are a true locus of power in modern civil rights causes, and 

their collective enforcement of UDAP statutes to combat CPC deception would send a 

powerful message. Scholars have documented the increasing prominence of state AGs as 

policy makers, with AG activity markedly intensifying in 2017 after having already risen 

sharply during the Obama presidency.107 In one famous recent example, numerous 

attorneys general challenged the Trump administration’s travel ban that closed our 

borders to individuals from Muslim-majority countries. AGs in New York, 

Massachusetts, and Virginia intervened on behalf of individuals stopped at airports, and 

the AGs of Washington, Minnesota, and Hawaii sued on their states’ behalves.108 Many 

more filed amicus briefs.109 New Mexico’s attorney general observed of this coordinated 

effort that AGs “are becoming, potentially, the fourth branch of government.”110 

 

 
106 Upfront legal costs are prohibitive even if attorney’s fees might be recouped should the plaintiff prevail. 

Of course, reproductive rights and consumer protection legal advocacy organizations might be willing to take 

on such cases but connecting plaintiffs with these organizations is likely more easily accomplished through a 

public, state-wide effort. 

 
107 See Paul Nolette & Colin Provost, Change and Continuity in the Role of State Attorneys General, in the 

Obama and Trump Administrations, 48 PUBLIUS 469, 470 (2018). 

 
108 See Burns, supra note 90. 

 
109 See id. 

 
110 Id. 



 

39.2 COLUMBIA JOURNAL OF GENDER AND LAW                         163 

 

 

 

Just as some attorneys general fought to overturn a Department of Education rule 

granting transgender students access to school bathrooms and others are now banding 

together to regulate fossil fuels and protect health insurance coverage,111 so too could they 

place a spotlight on UDAP enforcement efforts against CPCs. When dozens of state AGs 

joined forces to bring UDAP cases against tobacco companies and opioid manufacturers, 

these efforts became a national focal point.112 Granted, there are significant differences 

between the central issues and defendants in those cases as compared to CPCs—not 

nearly as many states would join an effort connected to abortion, and CPC enforcement 

actions could not be combined into a single multistate suit as was done against Big 

Tobacco and Purdue Pharma.113 But at least among states with the political appetite to 

tackle CPC fraud post-NIFLA,114 a coordinated UDAP enforcement campaign launched 

by five states’ AGs could send a powerful message about the importance of combatting 

deception in reproductive health care and reinvigorate a viable legal option that has lain 

dormant for many years. 

 

2. AGs’ UDAP Arsenal: Enforcement History Offers a Playbook for 

Today  

 

Perhaps the most significant advantage is the wide array of enforcement tools 

available to AGs. In most states, these include investigating consumer complaints 

complete with subpoena power, negotiating voluntary assurances of compliance, seeking 

injunctions, and obtaining restitution both in and out of court.115 In about half of all 

states, attorneys general or partner agencies can issue regulations or interpretive opinions 

specifying which activities qualify as deceptive or unfair.  

 

This Section explores the history of state AGs’ UDAP enforcement choices in 

response to CPC deception to offer a roadmap of what has worked in the past and to 

suggest what is possible today under state UDAP laws as they are currently drafted. Later 

 
111 See Rachel M. Cohen, The Hour of the Attorneys General, AMER. PROSPECT (Mar. 22, 2017), 

http://prospect.org/article/hour-attorneys-general [https://perma.cc/4KVA-4LAV]. 

 
112 See Colin Provost, State Attorneys General, Entrepreneurship, and Consumer Protection in the New 

Federalism, 33 PUBLIUS 37, 44 (2003); Pridgen, supra note 67, at 922–23. 

 
113 See Provost, supra note 112, at 44; Pridgen, supra note 67, at 922–23. 

 
114 The political nature of high-profile consumer protection cases has been shown to correlate with AGs’ 

decisions to undertake certain litigation. See Provost, supra note 112, at 42. 

 
115 See Pridgen, supra note 67, at 915–16. 



164 COLUMBIA JOURNAL OF GENDER AND LAW 39.2  

sections discuss the possibility of amending these laws to better empower AGs. Starting 

in the 1980s, states like New York and Ohio conducted robust investigations of crisis 

pregnancy centers and used their subpoena power to leverage settlement agreements with 

offending CPCs.116 Around the same time, states’ attorneys in California and Texas 

pursued UDAP complaints in court and achieved significant court-ordered injunctions of 

harmful behavior as well as a hefty fee against the CPC and its owner/operator in the 

Texas case.117 And while no AGs appear to have used their rulemaking powers to rein in 

CPCs’ deceptive practices, regulatory action in this space could be a powerful adjunct to 

these other approaches. 

 

a. Investigations and Compliance Negotiations 

 

State AGs’ offices and consumer protection agencies can use the investigative 

powers granted to them by most UDAP statutes to subpoena evidence or issue civil 

investigative demands.118 Not only does this approach help identify wrongdoing in the 

first place, but it also opens the door to negotiations with entities to change their 

practices. While these investigations may lead to the courtroom, they need not; settlement 

agreements can often achieve desired results extrajudicially. New York and Ohio’s AGs 

have translated UDAP investigations into settlements that curbed CPC deception.119  

 
116 See Jane Gross, Pregnancy Centers: Anti-Abortion Role Challenged, N.Y. TIMES (Jan. 23, 1987), 

https://www.nytimes.com/ 1987/01/23/nyregion/pregnancy-centers-anti-abortion-role-challenged.html 

[https://perma.cc/TW2M-7Y8K]; Alan Johnson, Fisher Targets “Crisis Pregnancy Centers,” COLUMBUS 

DISPATCH, Feb. 25, 1993, at 5C; Sheryl Harris, Agency Fights Altering of Ads: Akron Pregnancy Services is 

Told by Ohio Attorney General to Stop Calling Itself “Abortion Service.” Agency Sues Lee Fisher’s Office, 

Citing a Limit to Free Speech, BEACON J., June 9, 1993, at D1; Alan Johnson, Fisher, Pregnancy Center 

Coalition Claim Victory, COLUMBUS DISPATCH, Dec. 2, 1993, at 8C [hereinafter Johnson Victory]; State, 

Agency Settle Abortion Ad Dispute, CLEVELAND PLAIN DEALER, Nov. 19, 1993, at 1B. 

 
117 See Gross, supra note 116; District Attorney Sues Anti-Abortion Center, ASSOCIATED PRESS, July 18, 

1986, LEXISNEXIS; Wallace, Agency Probed, supra note 42; Bill Wallace, S.F. Sues Abortion Foes for 

Arranging Adoption, S.F. CHRON., July 18, 1986, at 1, NEWSBANK, INC. [hereinafter Wallace, Adoption]; Halt 

Ploy, Abortion Foes Told, SAN JOSE MERCURY NEWS, Dec. 8, 1988, at 1A; Mother & Unborn Baby Care, 689 

S.W.2d at 337; Mother & Unborn Baby Care, 749 S.W.2d at 536. 

 
118 See PRIDGEN & ALDERMAN, supra note 69, at § 7.1. 

 
119 Other states have dabbled in investigation but produced few results. See, e.g., New Illinois Attorney 

General Targets Crisis Pregnancy Centers, PRO-LIFE ACTION LEAGUE (Dec. 14, 2002), https://prolifeaction. 

org/2002/2002v21n3madigan/ [https://perma.cc/6NJS-JN37] (explaining newly elected Attorney General 

Lisa Madigan’s campaign promise to crack down on “phony” clinics); CPC LEGISLATIVE REPORT, supra note 

10, at 15, 17 (noting that the Illinois and Maryland Attorney Generals’ offices instituted informal 

investigations and inquiries into pregnancy centers during this time). 



 

39.2 COLUMBIA JOURNAL OF GENDER AND LAW                         165 

 

 

 

New York has been a leader in Attorney General enforcement of consumer protection 

law against CPCs’ deceptive practices. As early as 1987, the state AG began 

investigating three New York City CPCs based on affidavits from unwitting consumers 

and volunteer investigators from abortion-rights groups.120 Describing the AG’s 

enforcement approach, a representative of the office explained: “Our position is not that 

they can’t attempt to talk people out of abortion. Our position is they can’t do that if they 

entice people by misrepresentation.”121 Following investigations of other CPCs in the 

state, the AG issued consent letters that addressed the centers’ advertising as well as 

internal activities like administering pregnancy tests and screening graphic anti-abortion 

slide shows; one letter even asked a CPC to change its name.122 Although the AG 

achieved consent agreements in some instances,123 he ultimately sued a Dutchess County 

CPC that refused to fully comply with the AG’s terms. Notably, this UDAP enforcement 

action survived a First Amendment challenge.124  

 

A decade later, then-Attorney General Elliot Spitzer launched another CPC 

investigation, issuing subpoenas based on concerns that certain CPCs’ advertising and 

 
120 See Gross, supra note 116. 

 
121 Id. 

 
122 See Carr v. Axelrod, 798 F. Supp. 168, 176 (S.D.N.Y. 1992) (noting that in a letter, a clinic agreed to 

advise clients that they may refuse to see or may stop watching an anti-abortion slide show at any time). 

 
123 See, e.g., New York Attorney General Subpoenas Crisis Pregnancy Center Leader, LIFE SITE NEWS (May 

29, 2013, 8:05 PM), https://www.lifesitenews.com/news/crisis-pregnancy-center-liberals-want-to-get-the-

christians-out-of-health-c [https://perma.cc/3LQ6-LXD7] [hereinafter LIFE SITE]. 

 
124 Carr, 798 F. Supp. at 171, 176. The court explained the events leading up to the suit against the Dutchess 

County CPC: 

 

On November 27, 1991, the Attorney General, as required by state statute, mailed a 

‘Notice of Proposed Litigation’ to APC charging it with a variety of allegedly fraudulent 

and deceptive practices in connection with their operation of the pregnancy center . . . . A 

meeting took place on December 17, 1991 . . . . APC responded, by letter, on December 

31, 1991, agreeing to alter some of its practices as suggested by the Attorney General’s 

office but refused to change the name of its organization or the content of its advertising, 

and declined to pay any civil penalties. 

 

Carr, 798 F. Supp. at 171, 176. Note that the original case may be found at this citation by contacting the 

court clerk’s office: People v. N. Westchester Putnam Assistance to Mother & Unborn Child, No. 92-135 

(Sup. Ct. Dutchess Co.). 



166 COLUMBIA JOURNAL OF GENDER AND LAW 39.2  

business practices could mislead women about the nature of the centers’ services.125 The 

subpoenas spurred at least one consent decree with a CPC that agreed to “clearly inform[] 

persons who inquire about abortion or birth control that it does not provide those 

services.”126 The subpoenas also encouraged settlement discussions with several other 

CPCs.127 Years later, in 2013, the state AG’s office again leveraged its subpoena power to 

hold a CPC accountable for violating a consent decree obtained in the first round of 

investigations in the 1980s.128 

 

Ohio, a state now known for its repeated attempts to ban abortion as early as six 

weeks, was also an early enforcer of its UDAP law to curb CPC deception. In the 1990s 

Ohio’s Attorney General Lee Fisher used investigative powers granted him under Ohio’s 

UDAP statute129 to issue substantiation requests to CPCs that advertised under 

phonebook headings like “Clinic” and “Abortion Services.”130 Recipients of a 

substantiation request must submit to the AG “documentation, tests, studies, reports, or 

other data” to show that there were adequate grounds for the representations made in their 

advertisements.131 Upon reviewing the substantiation submissions, the AG concluded that 

five CPCs had “violate[d] the law by advertising themselves as clinics when they are not 

medical facilities, provide no medical services and have no doctors on staff.”132 He 

ordered them to stop advertising under inappropriate phonebook headings and to inform 

clients that the CPCs do not provide abortions or other medical services.133 After a CPC 

 
125 See NARAL PRO-CHOICE N.Y. FOUND. & NAT’L INST. FOR REPROD. HEALTH, “SHE SAID ABORTION COULD 

CAUSE BREAST CANCER:” A REPORT ON THE LIES, MANIPULATIONS, AND PRIVACY VIOLATIONS OF CRISIS 

PREGNANCY CENTERS 3 (2010), https://www.scribd.com/document/39342502/Cpc-Report-2010 

[https://perma.cc/QW8N-246U]. 

 
126 Press Release, N.Y. Att’y Gen., Spitzer Reaches Agreement with Upstate Crisis Pregnancy Center (Feb. 

28, 2002), https://web.archive.org/web/20160914212822/https://ag.ny.gov/press-release/spitzer-reaches-

agreement-upstate-crisis-pregnancy-center [https://perma.cc/5WDA-YAAL]. 

 
127 See id. 

 
128 See LIFE SITE, supra note 123. 

 
129 OHIO ADMIN. CODE § 109:4-3-10 (2018). 

 
130 See Ohio Summit Cty. Crisis Pregnancy Ctr. v. Fisher, 830 F. Supp. 1029, 1031 (D. Ohio 1993). 

 
131 OHIO ADMIN. CODE § 109:4-3-10 (2018). 

 
132 Johnson, Fisher Targets “Crisis Pregnancy Centers,” supra note 9. 

 
133 See Harris, supra note 9; Johnson Fisher Targets “Crisis Pregnancy Centers,” supra note 9. 



 

39.2 COLUMBIA JOURNAL OF GENDER AND LAW                         167 

 

 

 

in Akron filed a suit challenging this compliance request on First Amendment and due 

process grounds, the Attorney General settled, requiring the CPC to disclose in its 

advertising that it was not a medical facility and did not provide abortions.134 The other 

CPCs not party to the suit agreed to similar terms.135 

 

Of course, a successful UDAP enforcement strategy requires a level of institutional 

commitment and resources that may not be present in every office. Attorneys General in 

states like Illinois136 and Maryland137 have undertaken at least informal investigations, but 

there is limited evidence of their having achieved compliance agreements or settlements. 

In other states, AGs have declined to investigate complaints altogether.138 In Kentucky, a 

consumer complained to the state AG’s office about a misleading CPC ad, but was told 

that Consumer Fraud division did not have enough staff to investigate.139 And in 

Missouri, a patient seeking an abortion who unwittingly contacted a CPC alleged that 

“despite receiving complaints about the methods of fake abortion clinics” including the 

one she visited, “the Missouri Attorney General encouraged [the CPCs] by publicly 

announcing that their advertising did not constitute misrepresentation” and by “refusing 

 
134 See Johnson, Victory, supra note 9; State, Agency Settle Abortion Ad Dispute, supra note 9. 

 
135 See Johnson, Victory, supra note 9. 

 
136 In 2002, crisis pregnancy centers in Illinois braced for investigations promised by newly elected Attorney 

General Lisa Madigan, following her campaign promise to crack down on “phony” clinics. See New Illinois 

Attorney General Targets Crisis Pregnancy Centers, supra note 119. A 2008 report by three national CPC 

networks suggests there was at least some follow through, noting “[i]n prior years, the Illinois Attorney 

General’s office has instituted informal investigations and inquiries into pregnancy centers.” CPC 

LEGISLATIVE REPORT, supra note 10, at 17. 

 
137 “In 2002 and 1991, the Maryland Attorney General initiated informal investigations into Maryland centers 

by requesting information on the centers. A response was provided and no formal investigation ensued.” CPC 

LEGISLATIVE REPORT, supra note 10, at 15; see also Kate Shatzkin, Inquiry Sought for Pregnancy Crisis 

Sites, BALT. SUN (Aug. 17, 2002), http://articles. baltimoresun.com/2002-08-17/news/0208170017_1_crisis-

pregnancy-centers-abortion-attorney-general-office [https://perma.cc/79BC-MJKG]. 

 
138 In Minnesota, the Attorney General declined to investigate multiple complaints from women in 2005, 

instead issuing letters that claimed “such issues are in the jurisdiction of state agencies and not [the AG’s] 

office.” Rachel E. Stassen-Berger, More Than a Street Divides Clinic, Center, ST. PAUL PIONEER PRESS, Apr. 

10, 2005, at A11. The state’s Department of Health promised a review following the release of a new 

investigative report issued seven years later, but it is unclear whether a state inquiry came to pass. See Jeremy 

Olson, Pregnancy Centers Come Under Fire for Abortion Info, STAR TRIBUNE (Jan. 18, 2012), http://www. 

startribune.com/pregnancy-centers-come-under-fire-for-abortion-info/137538788/ [https://perma.cc/3TNC-

FHYB]. 

 
139 See Consumer Prot. & Patient Safety Issues Involving Bogus Abortion Clinics, supra note 7, at 136–37. 



168 COLUMBIA JOURNAL OF GENDER AND LAW 39.2  

to invoke broad state statutory and common law remedies available to prevent the use of 

deceptive advertising practices.”140 

 

b. Public Enforcement Lawsuits and Injunctive Relief 

 

State AGs can also sue to secure injunctive relief from deceptive practices, restitution 

for injured parties, or the imposition of civil penalties that punish and deter future bad 

conduct. “Usually these injunctions are broad, to not only put an end to current unfair or 

deceptive activities but also to prevent future similar violations. Such injunctions can be 

quite creative and far-reaching.”141 While the traditional concept of restitution—depriving 

the deceptive party of ill-gotten gains142—may not apply directly to CPCs offering free 

services, compensating victims for financial harm is highly relevant and might be 

awarded as equitable relief even if not statutorily specified. Further, levying civil 

penalties against UDAP violators acts as a deterrent and sends a message about behaviors 

the state finds particularly intolerable.143 For these reasons, judicial remedies might be 

preferable to out-of-court compliance agreements. 

 

California and Texas are among the states whose attorneys have used UDAP laws to 

achieve court-ordered remedies to CPC deception and thus provide strong examples for 

other states to follow. In California, where city and county attorneys have UDAP-

enforcement power, San Francisco’s District Attorney brought UDAP charges against a 

CPC that posed as a medical center and conducted repeated consultations with a fourteen-

year-old girl, delaying her access to a legitimate health care provider for so long that she 

could no longer obtain an abortion.144 The District Attorney won a temporary restraining 

order that barred the CPC from purchasing misleading ads in an upcoming version of the 

phonebook145 and secured a permanent injunction prohibiting the center from engaging in 

“any conduct likely to deceive the public regarding abortions,” including CPC names, 

 
140 Lewis v. Pearson Found., Inc., 908 F.2d 318, 319–20 (8th Cir. 1990). 

 
141 Pridgen, supra note 67, at 920. 

 
142 See PRIDGEN & ALDERMAN, supra note 69, at § 7:13. 

 
143 See Monica Schurtman & Monique Lillard, Remedial and Preventive Responses to the Unauthorized 

Practice of Immigration Law, 20 TEX. HISP. J.L. & POL’Y 47, 79 (2014). 

 
144 District Attorney Sues Anti-Abortion Center, supra note 117; Wallace, Agency Probed, supra note 42. 

 
145 See Wallace, Adoption, supra note 117, at 1. 



 

39.2 COLUMBIA JOURNAL OF GENDER AND LAW                         169 

 

 

 

advertising, and statements to clients.146 The injunction further restricted the CPC from 

showing an anti-abortion slide show unless it included medically accurate information 

like the fact that abortion has few physical or psychological side effects.147 

 

In Mother & Unborn Baby Care, Inc. v. State, Texas’s AG brought a UDAP lawsuit 

to obtain injunctive relief and financial judgment against a CPC after a private 

enforcement action failed.148 The CPC advertised as a medical clinic offering abortion 

information and services, but never provided—and never intended to provide—the 

abortion services it advertised.149 Instead staff questioned clients about their sexual 

histories, subjected them to a film about the dangers of abortion, and repeatedly contacted 

the clients after they left the facility.150 Through the suit, the AG secured an injunction 

against the CPC’s false advertising along with other remedies, including mandatory 

disclosures in future advertising, civil penalties for violating the UDAP and the 

temporary injunction, and attorney’s fees—all of which the appellate court affirmed in 

the face of a constitutional challenge.151 

 

These investigations and enforcement actions, together with the advocacy campaigns 

of women’s rights groups, formed the centerpiece of a congressional hearing in 1991 that 

brought national attention to the issue.152 Nonetheless, efforts to curb problematic CPC 

tactics have remained the purview of the police powers of state and local government—as 

demonstrated by the proliferation of disclosure laws of the type at issue in NIFLA.153 

 

 

 

 

 
146 Halt Ploy, Abortion Foes Told, supra note 117, at 1A. 

 
147 See id. 

 
148 Mother & Unborn Baby Care, 749 S.W.2d at 536 (pursuing claims against a CPC after a private claim 

failed in Mother & Unborn Baby Care, 689 S.W.2d at 337). 

 
149 Mother & Unborn Baby Care, 689 S.W.2d at 337. 

 
150 Id. 

 
151 Mother & Unborn Baby Care, 749 S.W.2d at 536. 

 
152 Consumer Prot. & Patient Safety Issues Involving Bogus Abortion Clinics, supra note 4. 

 
153 138 S. Ct. 2361 (2018). 



170 COLUMBIA JOURNAL OF GENDER AND LAW 39.2  

c. Rulemaking Authority 

 

Although the majority of UDAP statutes grant rulemaking authority to state AGs,154 

only half of this Article’s six focal states have delegated such powers. In Maryland a 

subdivision of the Attorney General’s office has rulemaking authority,155 and in 

Connecticut156 and Hawaii157 consumer protection agencies closely allied with the AG 

have such authority. There is no grant of rulemaking powers in California,158 New 

York,159 or Texas.160  

 

Regulations enable “the state to target emerging or persistent unfair and deceptive 

acts and practices and develop state-based solutions.”161 They allow states to “add bright-

line rules to their general prohibitions so that there is no question that a certain practice is 

unfair or deceptive.”162 For states where rulemaking is an option, the Massachusetts AG’s 

office stands as an exemplar. In the 1990s, Massachusetts’ AG was the first in the 

country to use his UDAP rulemaking authority to define the sale of guns without 

 
154 See Pridgen, supra note 67, at 921. 

 
155 MD. CODE ANN., COM. LAW § 13-101(e) (West 2018) (“‘Division’ means the Division of Consumer 

Protection of the Office of the Attorney General.”); id. at § 13-205 (“[T]he Division may adopt reasonable 

rules, regulations, and standards appropriate to effectuate the purposes of this subtitle, including rules, 

regulations, or standards which further define specific unfair or deceptive trade practices. These rules, 

regulations, and standards may not modify, expand or conflict with the definitions or standards set forth in 

this title.”). 

 
156 CONN. GEN. STAT. §§ 42-110a, 42-110b (2012). 

 
157 HAW. REV. STAT. § 487-5 (2002); see also CARTER OVERVIEW, supra note 96, at 16. 

 
158 CAROLYN L. CARTER, NAT’L CONSUMER LAW CTR., CONSUMER PROTECTION IN THE STATES: A 50-STATE 

EVALUATION OF UNFAIR AND DECEPTIVE PRACTICES LAWS APPENDIX C: STATE-BY-STATE SUMMARIES OF 

STATE UDAP STATUTES 9 (2018), https://www.nclc.org/images/pdf/udap/udap-appC.pdf [https://perma.cc/ 

R46M-KT4Y]. 

 
159 CARTER OVERVIEW, supra note 96, at 54 (“[California’s] statute would also be enhanced by . . . giving a 

state agency authority to adopt rules prohibiting emerging scams.”); id. at 60 (“Nor does New York give a 

state agency the authority to adopt rules addressing emerging scams.”). 

 
160 Id. at 63 (“The statute would be enhanced by giving a state agency the authority to adopt regulations 

prohibiting emerging forms of unfairness and deception.”). 

 
161 Id. at 16. 

 
162 Id. 



 

39.2 COLUMBIA JOURNAL OF GENDER AND LAW                         171 

 

 

 

adequate safety features to be unfair or unconscionable,163 a move the state’s high court 

later upheld as consistent with the statute.164 

 

Though it does not appear that any state has issued UDAP regulations of CPCs’ 

activity, AGs and partner agencies might consider promulgating rules that clarify how 

UDAP statutes apply to nonprofit organizations. Connecticut’s consumer protection 

agency, for instance, has the authority to issue regulations defining what constitutes a 

violation of the state’s UDAP statute.165 Connecticut courts have already found that the 

statute applies to nonprofit organizations in certain situations such that a clarifying 

regulation similar to the legislative amendment proposed in Section IV.B. might well be 

within the bounds of existing regulatory authority.166 

 

That said, if the activity the AG seeks to cover is entirely outside the sweep of 

existing UDAP provisions, such a change might not be possible via regulatory means. 

Maryland’s rulemaking delegation cautions that the “rules, regulations, and standards 

may not modify, expand or conflict with the definitions or standards set forth in this 

title.”167 And Michigan’s grant of rulemaking authority prevents the Attorney General 

from promulgating rules that create additional unfair trade practices not already  

enumerated.168 In states where such limitations apply, new regulations would not permit 

the AG’s office to reach specific CPC behaviors or remedy the general types of wrongs 

 
163 See LAINIE RUTKOW & STEPHEN TERET, THE POTENTIAL FOR STATE ATTORNEYS GENERAL TO PROMOTE THE 

PUBLIC’S HEALTH: THEORY, EVIDENCE, AND PRACTICE 18 (2010), http://publichealthlawresearch.org/sites/ 

default/files/downloads/product/The%20Potential%20for%20State%20Attorneys%20General%20to%20Pro

mote%20the%20Public%27s%20Health.pdf [https://perma.cc/k8f4-kmky]. 

 
164 See Am. Shooting Sports Council, Inc. v. Att’y Gen., 429 Mass. 871, 904–05 (1999) (holding that 

although questions of whether a product can be sold should primarily be under the purview of the legislature, 

the AG may “regulate in an area not otherwise withheld from his consideration, even if the regulation may 

affect the ability of the vendor to sell its product, if he can establish that the regulations define acts or 

practices which violate” the UDAP law). 

 
165 CONN. GEN. STAT. § 42-110b(d) (2012). 

 
166 See Robert Langer et al., 12 CONN. PRAC. Unfair Trade Practices § 3.5 (2018). 

 
167 MD. CODE ANN., COM. LAW § 13-205 (West 2018). 

 
168 MICH. COMP. LAWS § 445.903(2) (2018). 



172 COLUMBIA JOURNAL OF GENDER AND LAW 39.2  

CPCs perpetrate if those practices are clearly off limits based on statutory language and 

court decisions.169 

 

III. The Commercial Impediment to Using UDAP Laws to Remedy CPC 

Deception 

 

Despite AGs’ successful history of deploying UDAP laws to curb CPCs’ deceptive 

activities and the ready availability of effective tools to continue doing so today, there 

remain several challenges with applying UDAP statutes to CPCs. The two main problems 

are (1) overcoming the commercial language that in many statutes threatens to foreclose 

UDAP action against not-for-profit CPCs, and (2) adapting these laws to more squarely 

countenance the non-financial harms that CPCs cause. This Section explores the 

commercial language problem and how it might be overcome while Section IV does the 

same for the question of non-financial harm. 

 

Specifically, some states’ UDAP statutes clearly apply even when no financial 

exchange occurs, while other states’ UDAP language is more restrictive. Where needed, 

fixes to the commercial impediment could take the form of (1) amending the text of a 

state’s UDAP statute, (2) relying on the undisputedly commercial advertising provisions 

of the UDAP regime to reach other conduct, and (3) advancing broader judicial 

interpretations of UDAP laws consistent with their remedial purposes. 

 

A. The “In Trade or Commerce” Impediment 

 

At its most basic, a UDAP action requires a showing of deceptive or unfair conduct 

on the part of a provider of consumer goods or services. Under most statutes, this breaks 

down into two main elements: (1) deception and (2) selling or offering goods or services. 

As discussed earlier, the deception element is easily met when it comes to CPCs. But 

because most UDAP statutes include the phrase “trade or commerce” or similar limiting 

terms, the challenge with satisfying this second element is pronounced. CPCs have 

argued, and some authorities have accepted, that because CPCs give their services away, 

their activities are noncommercial and fall outside UDAP statutes’ scope.  

 

Trade or commerce is defined differently in each state, and in some statutes, it is not 

referenced at all. Sometimes the concept of trade or commerce is construed so broadly 

that CPCs’ activities could easily fit within this class of conduct. But in other instances, 

 
169 AGs will also have to be sensitive to the fact that prescriptive rulemaking might shift the regulatory model 

back to the ex ante approach that raised First Amendment concerns in NIFLA. See supra note 62 and 

accompanying text. 



 

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satisfying the commercial element when CPCs do not in fact sell their services poses a 

major stumbling block for UDAP enforcement against them. Trade and commerce have 

infused many UDAP statutes and informed the types of practices courts understand as 

falling within their reach. Indeed, some courts have refused to apply these laws when 

consumers were misled or treated unfairly but had not paid for any of the services in 

question. A Washington court ruled that a website providing free comparative ratings of 

attorneys was not part of “trade or commerce” and thus not subject to suit under the 

state’s UDAP law,170 and a UDAP claim against Facebook failed in California because 

complaining plaintiffs had not paid to use the website.171  

 

Some AGs’ offices and state courts have used this same kind of reading to deem 

UDAP statutes inapplicable to CPCs. A Missouri woman who reported a deceptive CPC 

encounter to both the Better Business Bureau and the Missouri AG was told by both 

entities that “[she] hadn’t paid any money to the center, so they could not file charges of 

consumer fraud.”172 The Massachusetts Supreme Court also read “trade” and 

“commerce” to limit the state’s seemingly otherwise applicable UDAP from applying to 

CPCs in Planned Parenthood Federation of America v. Problem Pregnancy of 

Worcester.173 There the court decided that the UDAP’s definition of trade or commerce 

did not apply to CPCs because, even though it included “distribution of any services,” 

that phrase appeared near words like “sale” and “lease.”174 Relying on the constructive 

canon of noscitur a sociis (a word is known by its associates), the court held that 

“services [must] be distributed in exchange for some consideration” if the UDAP’s 

protections were to attach.175  

 

While such a narrow reading of a state’s UDAP law is possible, it is not inevitable. 

Language relating to profit and commercialism need not so tightly confine the statute’s 

reach as to exempt CPCs. For instance, despite its financial connotation in common 

 
170 Browne v. Avvo Inv., 525 F. Supp. 2d 1249 (W.D. Wash 2007). 

 
171 In re: Facebook Privacy Litigation, 791 F. Supp. 2d 705 (N.D. Cal. 2011). 

 
172 Consumer Prot. & Patient Safety Issues Involving Bogus Abortion Clinics, supra note 4, at 364 (letter 

from Jennifer Kraeger). 

 
173 498 N.E.2d 1044, 1051–52 (Mass. 1986). 

 
174 Id. 

 
175 Id. 



174 COLUMBIA JOURNAL OF GENDER AND LAW 39.2  

parlance, the term “transaction” also refers to transfer of services,176 and California’s 

UDAP law defines a transaction as an agreement between two parties which need not be 

a contract.177 These more flexible understandings could very well extend to a CPC’s 

activities. The following discussion explores whether UDAP text in the six CPC 

disclosure states might require AGs to demonstrate a commercial nexus and suggests that 

AGs might overcome such a requirement by relying on false advertising provisions or by 

encouraging a flexible interpretation consistent with UDAP statutes’ broad language and 

remedial purpose. 

 

1. Statutes with More Favorable Language 

 

UDAP language in New York, Connecticut, Texas, and Hawaii should apply to CPCs 

without the need to show that a financial exchange occurred. New York’s UDAP statute 

offers the clearest instance where there should be no commercial impediment to reaching 

CPC activity under existing consumer law. It prohibits “[d]eceptive acts or practices in 

the conduct of any business, trade or commerce or in the furnishing of any service.”178 

The disjunctive makes clear that the furnishing of a service is distinct from business, 

trade, or commerce. That commercial activity and furnishing services are distinct but 

equally covered categories is reiterated in the statute’s false advertising provisions.179 On 

top of that, the term “business” may not be the impediment it initially appears. A state 

court recognized that the AG’s subpoena power to respond to repeated or “persistent 

fraud . . . in the carrying on . . . of business” was valid as applied to a CPC because the 

CPC was “‘carrying on, conducting or transact[ing] business,’ regardless of whether it 

[wa]s doing so for a commercial purpose or profiting financially.”180  

 

Somewhat similar to New York’s “furnishing of any services,” Connecticut’s 

UDAP scheme defines “trade” and “commerce” to include the distribution of services 

and thus does not impose a financial element that would exclude CPCs’ free services 

 
176 TRANSACTION, https://www.merriam-webster.com/dictionary/transaction [https://perma.cc/Z2LM-JWS6] 

(“especially: an exchange or transfer of goods, services, or funds”). 

 
177 CAL. CIV. CODE § 1770 (West 2018) (defining transaction as the making of and performance pursuant to 

an agreement, whether or not it is a contract). 

 
178 N.Y. GEN. BUS. LAW § 350 (McKinney 2018) (emphasis added). 

 
179 N.Y. GEN. BUS. LAW § 349 (McKinney 2018). 

 
180 Evergreen Ass’n, Inc. v. Schneiderman, 153 A.D.3d 87, 97 (N.Y. App. Div. 2017). 

https://www.merriam-webster.com/dictionary/transfer


 

39.2 COLUMBIA JOURNAL OF GENDER AND LAW                         175 

 

 

 

from coverage.181 And like Connecticut, Texas’s law includes offering a service for 

distribution within its trade and commerce definition.182 Further, in Texas a consumer 

includes an individual who “seeks” any service.183 Together, “offering . . . for 

distribution” (rather than sale) and “seeks” (rather than buys) make clear that a 

financial transaction is not necessary for Texas’s UDAP protections to attach.184 In 

fact, when confronted with the question of whether the state’s UDAP applied to CPCs, 

a Texas appeals court put it simply: “It is immaterial whether [the CPC] provided a 

service in exchange for money; the statute as a whole supports the conclusion that 

transfer of valuable consideration is not necessary.”185 

 

Finally, rather than relying on “trade” or “commerce,” Hawaii focuses on actions 

undertaken as part of a person’s “business, vocation, or occupation.”186 So long as 

operating a CPC can be understood as a vocation or occupation (a term which is not 

defined but almost certainly extends to paid staff and may even reach volunteers), 

Hawaii’s UDAP statute should cover CPCs’ misleading or deceptive practices. 

 

2. Statutes with More Restrictive Language 

 

On the other hand, based on statutory text alone, it appears that California and 

Maryland might be foreclosed from applying their UDAP laws to CPCs. Rather than 

referring to trade or commerce, California uses the phrase “unfair competition,” which 

means any unlawful, unfair, or fraudulent business practice.187 Whether these three 

categories of practices are in fact proscribed by the UDAP law’s operative provision 

hinges on whether they “can properly be called a business practice”188 or are undertaken 

 
181 CONN. GEN. STAT. § 42-110a (2012). 

 
182 TEX. BUS. & COM. CODE ANN. § 17.45 (West 2018). 

 
183 Id. at § 17.45(2), (4) (“‘Consumer’ means an individual, partnership, corporation, this state, or a 

subdivision or agency of this state who seeks or acquires by purchase or lease, any goods or services.”). 

 
184 Id. at § 17.45. 

 
185 Mother & Unborn Baby Care, 749 S.W.2d 533, 538 (Tex. App. 1988). 

 
186 HAW. REV. STAT. § 481A-3 (2018). 

 
187 CAL. BUS. & PROF. CODE § 17200 (West 2018). 

 
188 Prescott v. Rady Children’s Hosp.-San Diego, 265 F. Supp. 3d 1090, 1102 (S.D. Cal. 2017) (quoting Cel–

Tech Commc’ns v. L.A. Cellular Tel. Co., 973 P.2d 527, 560 (Cal. 1999)). 



176 COLUMBIA JOURNAL OF GENDER AND LAW 39.2  

“in a transaction intended to . . . result in the sale” of services.189 It is not clear whether 

the distributor’s intent or the consumer’s controls. If the consumer’s intent controls, then 

a client’s agreement to undergo an ultrasound at a CPC might constitute a transaction that 

she intends to result in a sale (of abortion services) such that the UDAP statute applies. 

But if the intent of the service provider controls, because CPCs give away their services 

not intending to make a sale, a CPC’s practices may well qualify as unfair or deceptive 

but not unlawful under the statute. However, given that California’s UDAP regime 

prohibits as an “unlawful” practice any business activity that is proscribed elsewhere in 

the code,190 violations of California’s standalone false advertising law will also constitute 

UDAP violations so long as advertising is understood as a business activity and, as 

discussed in Section III.C., it often is. 

 

Maryland’s UDAP law poses similar problems in clearing the commercial hurdle. 

The statute does not refer to “trade” or “commerce” but rather defines a collection of 

unfair or deceptive practices191 which it then bans only in “the sale” or “offer for sale” 

of consumer goods or services.192 As such, a CPC’s activities might qualify as 

deceptive practices, but nevertheless not be forbidden if its services are given away 

freely and never offered for sale. There might be an escape hatch from this 

conundrum, given that “sale” is defined to include “any offer for service.”193 But this 

definition renders superfluous and somewhat circular the operational section of the 

statute that prohibits misrepresentation in both the “sale” and the “offer for sale” of 

consumer services.194 Instead of contorting the statutory language to such a degree, 

advocates of applying Maryland’s UDAP law to CPCs would be well served to wage 

their arguments on purposive and policy grounds. Section III.D.2. explores this 

approach. 

 

 

 

 
189 CAL. CIV. CODE § 1770 (West 2018) (defining transaction to mean the making of and performance 

pursuant to an agreement, whether or not it is a contract). 

 
190 Prescott, 265 F. Supp. 3d at 1102. 

 
191 MD. CODE ANN., COM. LAW § 13-101 (West 2018). 

 
192 Id. at § 13-303. 

 
193 Id. at § 13-101. 

 
194 Id. at § 13-303. 



 

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B. A Legislative Solution 

 

Otherwise, if legislators in California, Maryland, or other states with commercially 

confined UDAP statutes want to better empower their AGs to combat CPC fraud, they 

could remove language limiting the laws to financial transactions. In place of the “trade 

or commerce” formulation, lawmakers might substitute the words “offer or distribution.” 

Another option would be to simply append New York’s “or in the furnishing of any 

service” phrase to the existing operational or definitional language.195 If concerns arose 

that such changes might render purely private non-financial exchanges vulnerable to 

government regulation, language could be added referring to services held out to the 

public or offered in facilities open to the public akin to the public accommodations 

definition in the Americans with Disabilities Act.196 

 

C. Advertising Often Qualifies as Commercial, Even if Underlying Services 

Do Not 

 

Even where some UDAP laws’ “trade or commerce” or “offer for sale” language 

appears to shield CPC practices, advertising will almost always be within reach. In fact, 

at least two federal district courts that rejected local CPC disclosure ordinances have 

suggested applying UDAP statutes to CPCs’ advertising instead.197 Even some CPCs 

have conceded that such enforcement would be valid. A CPC that challenged the 

constitutionality of New York City’s CPC disclosure ordinance argued that in lieu of the 

arguably unconstitutional ordinance, “the City could . . . prosecute fraud [or] false 

advertising . . . under current law.”198 That is not to say that those same CPCs would not 

object if UDAP laws were brought to bear on them, but this concession acknowledges the 

obvious authority that UDAP schemes have over advertisements for services.  

 

 
195 N.Y. GEN. BUS. LAW § 350 (McKinney 2018) (“Deceptive acts or practices in the conduct of any business, 

trade or commerce or in the furnishing of any service in this state are hereby declared unlawful.”). 

 
196 See WHAT IS TITLE III?, https://adata.org/what-title-iii [https://perma.cc/6T22-2GF5] (“Public 

accommodations include . . . professional offices of health care providers”); see also infra notes 231–33 and 

accompanying text. 

 
197 See O’Brien v. Mayor of Balt., 768 F. Supp. 2d 804, 817 (D. Md. 2011) (“In lieu of the disclaimer 

mandate of the Ordinance, Defendants could use or modify existing regulations governing fraudulent 

advertising to combat deceptive advertising practices by limited-service pregnancy centers.”); Evergreen 

Ass’n v. City of N.Y., 801 F. Supp. 2d 197, 209 (S.D.N.Y. 2011) (“Such prosecutions offer a less restrictive 

alternative.”), aff’d in relevant part, 740 F.3d 233, 247 (2d Cir. 2014). 

 
198 Evergreen Ass’n v. City of N.Y., 740 F.3d 233, 247 (2d Cir. 2014). 



178 COLUMBIA JOURNAL OF GENDER AND LAW 39.2  

For example, Connecticut’s UDAP regulations define as a deceptive practice any 

advertising that misrepresents “the nature, characteristics, . . . benefits, . . . or qualities” 

of merchandise or services.199 No sale or intent to profit is needed. Similarly, no separate 

commercial element is necessary under California’s false advertising prohibition, which 

applies so long as an individual or entity intending to “perform services, professional or 

otherwise” makes “untrue or misleading” public statements about those services.200 

North Dakota’s UDAP law contains an almost identical prohibition on false advertising, 

which the North Dakota Supreme Court held to apply to CPC ads, emphasizing that 

advertising takes place in the commercial realm regardless of whether a CPC charges for 

its services.201  

 

The Ninth Circuit relied heavily on this North Dakota ruling in upholding San 

Francisco’s CPC ordinance governing advertising.202 And a concurring opinion 

recognized that there is “no explicit requirement that those services be ‘offered for sale’” 

in order for California’s false advertising UDAP law to apply to CPCs.203 The court also 

pointed out that advertisements are inherently commercial when they are “designed to 

attract a patient base in a competitive marketplace for commercially valuable services.”204 

 

California has in fact applied its UDAP law to CPC ads in the past. As mentioned 

in Section II.B.2.b., after a CPC delayed a pregnant teen from getting an abortion and 

engaged in an elaborate plot to hide her from her parents until her baby was placed for 

 
199 CONN. AGENCIES REGS. 42-110b-18 (1989). 

 
200 CAL. BUS. & PROF. CODE § 17500 (West 2018); see also Prescott, 265 F. Supp. 3d at 1104 (holding that a 

health practitioner’s assurances to a mother about the type of care her child would receive were not covered 

under UDAP, but the hospital’s advertisements on its website as to the manner in which care would be 

delivered were covered).  

 
201 Fargo Women’s Health, 391 N.W.2d at 629–30. 

 

202 First Resort, Inc. v. Herrera, 860 F.3d 1263, 1273 (9th Cir. 2017). 

 
203 Id. at 1283 (Tashima, J., concurring) (noting that while the false advertising law mentions sales in 

another clause, that clause is independent). 

 
204 Id. at 1274. In enjoining Baltimore’s CPC disclosure ordinance, the Fourth Circuit also differentiated 

between what it saw as the impermissible regulation of arguably noncommercial speech inside a CPC and the 

permissible regulation of presumably commercial advertisements placed outside the CPC. Greater Balt. Ctr. 

for Pregnancy Concerns, Inc. v. Mayor & City Council of Balt., 879 F.3d 101, 108–09 (4th Cir. 2018). The 

court pointed out that CPCs in California and North Dakota lost their constitutional challenges to those states’ 

UDAP statutes because those laws “directly regulated misleading advertising” whereas the disclosure 

ordinance “applie[d] to pregnancy centers regardless of whether they advertise at all.” Id. 



 

39.2 COLUMBIA JOURNAL OF GENDER AND LAW                         179 

 

 

 

adoption, the court granted a restraining order under the state’s UDAP law barring the 

CPC from taking out further misleading ads.205 Another California court issued a 

permanent injunction in a UDAP action ordering a CPC not to “deceive the public 

regarding abortions” in its advertising.206 Taken together, these cases demonstrate the 

application of UDAP laws even where CPCs’ services are offered free of charge.  

 

What’s more, UDAP advertising enforcement can often be a foot in the door for 

reaching other deceptive activities. A California UDAP case brought on advertising 

grounds resulted in an injunction that barred the CPC from engaging in “any conduct 

likely to deceive the public regarding abortions,” extending to permissible names for the 

CPC and statements made to clients.207 And a North Dakota court not only enjoined a 

CPC from deceptively advertising but also ordered the CPC to take “no action or inaction 

which would lull people into believing that they are dealing with the [legitimate abortion 

provider] when they are in fact dealing with [the CPC].”208 That broad injunction was 

upheld by the state’s high court, which found that limited disclaimer statements were 

not enough to cure the deception.209 Rather, the court scrutinized conduct inside the 

CPC, including advice given in phone conversations, and found their content to violate 

the lower court’s injunction: 

 

[T]he tenor of the advertisements, the taped telephone conversations . . . , 

and their counseling of [a potential client] established that the [CPC] led 

others to believe that it . . . performed abortions . . . . Although isolated 

segments of the taped telephone conversations may support the [CPC’s] 

assertion that it attempted to comply with the court order [not to mislead 

or deceptively advertise], we believe the conversations, as a whole, 

established a violation.210 

 
205 See Wallace, Adoption, supra note 117. 

 
206 Bob Egelko, Operations of Clinic Restricted- Anti-Abortion Group had Ties to Facility, DAILY NEWS OF 

L.A., Dec. 8, 1988, NEWSBANK, INC.; see also Roe v. San Diego Pregnancy Servs., Inc., No. 657592, 1994 

WL 498012, at *1 (Cal. App. Dep’t Super. Ct. June 10, 1994) (enjoining advertising under misleading 

directory headings, prohibiting the use of certain phrases, and requiring that disclaimers be used in 

advertisements and other communications with consumers). 

 
207 Egelko, supra note 206; see also Halt Ploy, Abortion Foes Told, supra note 117. 

 
208 Fargo Women’s Health, 391 N.W.2d at 629. 

 
209 Id. 

 
210 Id. (emphasis added). 



180 COLUMBIA JOURNAL OF GENDER AND LAW 39.2  

If a deceptive ad leads to a deceptive conversation such that the entire interaction can 

be dubbed a violation of UDAP requirements, this renders vastly more harmful 

conduct susceptible to punishment and thus provides greater incentives for CPCs to 

ensure interactions inside the CPC conform to nondeceptive standards. 

 

D. UDAP Statutes Should be Interpreted Consistent with their Broad 

Language and Remedial Purpose 

 

AGs should push aggressive readings of UDAP laws in all aspects of their CPC 

work. Although there are certainly grounds to argue that the original purpose of UDAP 

laws was to address financial exploitation of consumers by unscrupulous businessmen, a 

more expansive purposive reading is also possible. These statutes were designed to 

remedy an ever-evolving set of wrongs visited upon consumers. Adopting this second 

purpose, which is suggested not only in legislative history but in the text and design of 

the UDAP statutes themselves, overcomes the commercial barrier and enables these laws 

to adapt to threats of the type posed by CPCs. 

 

Many UDAP statutes inherited the FTC Act’s “commerce” hook not because it was 

an essential provision but because they were patterned after the federal law. The FTC Act 

relied on the Commerce Clause as the source of its constitutional authority, but states 

have inherent police power and can ban harmful behavior without reference to commerce 

or finance. Thus, the “trade or commerce” language does not play the essential role for 

UDAP laws that it does for the federal statute; it could even be seen as an unnecessary 

vestige.  

 

Admittedly, much of the initial legislative discussion of state UDAP proposals 

centered on business owners swindling consumers out of their money. But numerous 

states and individual consumers have successfully brought action under UDAP regimes 

for violations where no sale occurred.211 Addressing these two perspectives in turn, this 

Section adopts the second construction and argues that UDAP statutes should be read to 

apply to CPCs consistent with states’ inherent authority over goods and services 

distributed in the public sphere, whether distribution involves a traditional commercial 

element or not. 

 

 

 

 
211 See PRIDGEN & ALDERMAN, supra note 69, at § 4.15. 



 

39.2 COLUMBIA JOURNAL OF GENDER AND LAW                         181 

 

 

 

1. Some Courts Have Narrowed the UDAP Scope to Salesmen and 

Creditors 

 

Even though, as demonstrated above, trade or commerce have been broadly 

defined in many UDAP statues such that their text can reach CPCs, some courts have 

adopted narrowing constructions and refused to apply UDAP laws to these centers. For 

instance, Massachusetts’ law defines “trade or commerce” to include not only the sale of 

services, but also “the distribution of services.”212 Nonetheless, the Massachusetts 

Supreme Court held that CPCs were not engaged in activities of the sort contemplated in 

the purpose of the legislation, which was “to improve the commercial relationship 

between consumers and businessmen.”213 

 

This reading is not without basis. Shortly after Texas’s UDAP statute was enacted, 

the consumer protection chief in the AG’s office explained the circumstances that 

motivated the legislature’s action, referring to debt collectors harassing debtors, 

landlords withholding security deposits, and door-to-door salesmen pressing unwanted 

purchases.214 These were all transactions that involved money. Similarly, the 

legislative findings section of Maryland’s UDAP law explains concerns about an 

“increase [in] deceptive practices in connection with sales . . . and the extension of 

credit.”215 

 

At the same time, other states have taken a broader reading of the legislative intent 

behind their UDAP statutes. Hawaii’s Supreme Court deemed that there was “no 

discernible reason why a consumer should be required to actually purchase any goods or 

 
212 See Planned Parenthood Fed’n of Am. v. Problem Pregnancy of Worcester, 498 N.E.2d 1044, 1051 (Mass. 

1986). 

 
213 Id. This interpretation of purpose as overriding the text had a ripple effect when Washington State’s 

Attorney General interpreted the “trade or commerce” language in its own UDAP in light of Massachusetts’ 

case law and declined to pursue consumer complaints of a CPC’s deceptive practices. See Consumer Prot. & 

Patient Safety Issues Involving Bogus Abortion Clinics, supra note 4, at 138–40 (letter from Kathleen D. 

Spong, Wash. Assistant Att’y Gen., Consumer & Bus. Fair Practices Div.) (“[W]ith Washington State’s 

comparatively narrow definition of trade or commerce, and with the only current persuasive authority 

(Massachusetts) holding adversely on the trade or commerce issue, it is doubtful a Washington court would 

find anti-abortion clinics in our state to be in trade or commerce for purposes of applying the Consumer 

Protection Act. This office will not, therefore, be able to take enforcement action under the Consumer 

Protection Act.”). 

 
214 See Philip K. Maxwell, Public and Private Rights and Remedies Under the Deceptive Trade Practices—

Consumer Protection Act, 8 ST. MARY’S L.J. 617, 618 (1976–77). 

 
215 MD. CODE ANN., COM. LAW § 13-102(a)(1) (West 2018). 



182 COLUMBIA JOURNAL OF GENDER AND LAW 39.2  

services as a precondition to bringing” a UDAP action.216 Rather, the “plain language of 

the [UDAP law] reflects that the legislature intended not only to protect persons who 

actually purchased goods or services . . . but also those who attempted . . . to do so.”217 

By this logic, there should be no barrier to a UDAP action for a woman who is lured to a 

CPC, but does not—and cannot—purchase the abortion service she sought there. And 

even if the original legislation was designed to address financial harm from coerced or 

ill-informed purchases, that does not foreclose UDAP enforcement against emerging 

threats to consumers’ wellbeing. 

 

2. The Broader Purpose of UDAP Statutes is to Remedy a Wide and 

Evolving Array of Consumer Injuries 

 

AGs should push for expansive interpretations of UDAP statutes consistent with their 

remedial purposes, both stated and implied, to better match these laws to the problem of 

CPC deception. Many UDAP statutes contain a “construction clause” calling for a broad 

reading consistent with the legislation’s remedial purposes. Such a clause might read 

something like: “this chapter shall be liberally construed that its beneficial purposes may 

be subserved.”218 In states where statutory text, legislative history, or judicial precedent 

makes clear that public health was one of those “beneficial” aims, AGs can argue on that 

basis that these laws should extend to service providers like CPCs that operate in a 

healthcare space, regardless of whether they do so commercially. But even where no 

obvious health-related purpose can be deduced from the statute, AGs should wage bold 

arguments interpreting UDAP laws in light of the underlying policy justifications that 

motivated their enactment: the need for adaptability and the desire to remedy imbalances 

in consumer power with regards to information and decision-making. In arguing for 

expansive UDAP readings whenever possible, and accreting successes wherever they can 

be won, state AGs can mold UDAP laws to meet the CPC fraud threat. 

 

In a few instances, either the statutory text or a court decision announces that one of 

the purposes of UDAP laws is the promotion and protection of public health. Maryland’s 

UDAP statute contains a provision announcing its purpose as “maintain[ing] the health 

and welfare of the citizens of the State,”219 a fact which Maryland’s courts have 

 
216 Pridgen, supra note 67, at 936. 

 
217 Zanakis-Pico v. Cutter Dodge, Inc., 98 Haw. 309, 316 (2002). 

 

218 See, e.g., CAL. BUS. & PROF. CODE ANN. § 17002 (West 2018). 

 
219 MD. CODE ANN., COM. LAW § 13-102(b)(3) (West 2018). 



 

39.2 COLUMBIA JOURNAL OF GENDER AND LAW                         183 

 

 

 

recognized in other UDAP jurisprudence.220And New York’s highest court announced 

that UDAP statutes have “long been powerful tools aiding the Attorney General’s efforts 

to combat fraud in the health care and medical services areas,” citing approvingly to a 

case the AG brought against a CPC.221 Thus, AGs in places like Maryland—where 

UDAP text is less obviously accommodating of non-sales-based interactions—could 

either leverage their own state’s UDAP text suggestive of a health-oriented purpose or 

marshal a collection of cases endorsing the use of UDAP laws to tackle public health 

problems. 

 

But beyond any one word or phrase in their text, it is clear from their breadth that 

UDAP laws are intended to be flexible, and the general legislative thrust has been to 

make them even more so. New York’s high court commended the flexibility and 

adaptability inherent in New York’s UDAP law, which “provide[s] needed authority to 

cope with the numerous, ever-changing types of false and deceptive business practices 

which plague consumers in our State.”222 The Massachusetts Supreme Court declared 

that: “The purpose of an open-ended legislative use of the words ‘unfair’ and ‘deceptive’ 

was to allow for the regulation of future, as-yet-undevised” schemes.223 Texas courts have 

recognized that their state’s “laundry list” approach to the UDAP statute “shows how 

many possible ways there are to defraud the public, and the need for a rule protecting 

consumers.”224 And California’s statute was said to be “intentionally framed in its broad, 

sweeping language, precisely to enable judicial tribunals to deal with the innumerable 

‘new schemes which the fertility of man’s invention would contrive.’”225 Unlike rules, 

which leave little discretion as to their application, principles such as those encompassed 

in the capacious and flexible terms “unfair” and “deceptive” grant “broad discretion to 

the enforcer (and ultimately, to the courts). As a result, UDAP enforcers can respond to 

ever-changing practices that may harm consumers without returning to the legislature 

 
220 Citaramanis v. Hallowell, 613 A.2d 964, 968 (Md. 1992) (citing MD. CODE ANN., COM. LAW §§ 13-

102(b)(3), 13-102(a)(2)). 

 
221 Karlin v. IVF Am., Inc., 712 N.E.2d 662, 666 (N.Y. 1999) (citing People v. Northern Westchester Putnam 

Assistance to Mother & Unborn Child, No. 92-135 (Sup. Ct. Dutchess Co.)). 

 
222 Id. at 665 (quoting N.Y. Dep’t of Law, Mem. to Gov., 1963 N.Y. Legis. Ann., at 105). 

 
223 Purity Supreme v. Attorney Gen., 407 N.E.2d 297, 303 (Mass. 1980). 

 
224 Mother & Unborn Baby Care, 749 S.W.2d at 542. 

 
225 Barquis v. Merchs. Collection Ass’n of Oakland, Inc., 7 Cal. 3d 94, 112 (1972) (citation omitted). 



184 COLUMBIA JOURNAL OF GENDER AND LAW 39.2  

every time a new scheme hatches.”226 The use of “unfair or deceptive” and similarly 

encompassing phrases invites judicial interpretation guided by norms and policy 

concerns.227 As such, AGs can and should use UDAP enforcement suits to encourage 

courts to tailor the law to the modern threat posed by CPCs. 

 

Indeed, over the years, states have taken steps to cover more entities and types of 

consumers including businesses.228 A California court observed of this adaptability that 

“whenever the Legislature has acted to amend [its UDAP law], it has done so only 

to expand its scope, never to narrow it.”229 When courts have hesitated to apply UDAP 

laws to nonmerchants, they have done so out of an understanding of the policy goals of 

these statutes as consisting of (1) addressing a power differential between consumers and 

purveyors of goods and services and (2) curbing recurring threats to the public. Deciding 

that a private homeowner was outside the UDAP statute’s scope, the Massachusetts 

Supreme Court held that, because a homeowner “who decides to sell his residence stands 

in no better bargaining position than the individual consumer . . . arming the ‘consumer’ 

in this circumstance does not serve to equalize the positions of buyer and seller.”230 A 

Georgia court decided that these private transactions are not covered because “a 

homeowner who misrepresents the facts in the course of selling his residence is not likely 

to present a recurring threat to the public” as UDAP statutes contemplate.231 

 
226 Prentiss Cox, Amy Widman & Mark Totten, Strategies of Public UDAP Enforcement, 55 HARV. J. LEGIS. 

37, 45 (2018). 

 
227 Id. at 54 (“[P]rinciple-based enforcement occurs where the legislature has provided a broad standard . . . 

This type of delegation, by its nature, is a conscious choice of the legislature to rely substantially on the 

enforcer’s discretion.”). 

 
228 For instance, the expansion of UDAP laws to include businesses in need of protection shows the 

broadening scope of individuals and entities protected by those statutes. See PRIDGEN & ALDERMAN, supra 

note 69, at § 4.3 (citing Alaska, Florida, Illinois, Massachusetts, New Jersey, North Carolina, Texas, and 

Tennessee as examples of states whose UDAP laws extend to businesses); J. R. Franke & D.A. Ballam, New 

Applications of Consumer Protection Law: Judicial Activism or Legislative Directive, 32 SANTA CLARA L. 

REV. 347 (1992) (concluding that expansions of the scope of UDAP statutes are grounded in legislative will 

rather than untethered judicial activism). 

 
229 Stop Youth Addiction, Inc. v. Lucky Stores, Inc., 950 P.2d 1086, 1097 (Cal. 1998) (emphasis in original). 

 
230 Lanter v. Caron, 373 N.E. 2d 973, 977 (Mass. 1978); see also PRIDGEN & ALDERMAN, supra note 69, at 

§ 2:9 (“Many policymakers in state government felt that, while the forces of competition and the existing 

legal actions were sufficient for handling disputes between businesses, consumers were not on an equal 

footing with the business entities with whom they had to deal. Consumers needed an extra edge in court to 

compensate for their relative inequality in the marketplace.”). 

 
231 PRIDGEN & ALDERMAN, supra note 69, at § 4:6. 



 

39.2 COLUMBIA JOURNAL OF GENDER AND LAW                         185 

 

 

 

Though homeowners are decidedly different from CPCs, these cases enumerate the 

very policy rationales that justify applying UDAP laws to fake clinics. First, women who 

seek abortion services are not on equal footing with the CPCs they turn to. They are often 

navigating unfamiliar territory and are at an informational and financial disadvantage 

relative to CPCs. Abortion is not often discussed publicly, and unbiased sources of 

information are hard to come by, especially with CPCs’ camouflaged websites lurking on 

the internet. Given the taboo around abortion, women may not have discussed their 

situation with friends or loved ones and are looking to CPCs for help at a vulnerable time. 

These are the very types of consumers who need to be “arm[ed]” with the protection that 

UDAP laws afford.232 

 

Second, CPCs are repeat players, guaranteed to pose a recurring threat to the public 

so long as unwitting consumers are delayed in or dissuaded from obtaining legitimate 

health care. Even if their transactions with women do not qualify as classically 

mercantile, CPCs are not like private homeowners, immune from regulation in their 

sporadic transactions with others. Rather, at least one reproductive rights lawyer has 

suggested that CPCs should in fact be understood as public accommodations.233 To that 

point, CPCs are service facilities open to the public; they solicit patronage through 

websites, paid advertising, and window signs inviting women to come in for free 

pregnancy tests. They compete for clientele with medical clinics that are clearly public 

accommodations.234 And a fair share of CPCs receive state and federal grants for some of 

their programming, which brings them under the purview of a number of public 

accommodations non-discrimination laws.235 

 

Whether these centers are treated as public accommodations or simply as service 

providers in an otherwise regulated field, it is ultimately consistent with UDAP laws’ 

purposes as remedial statutes designed to protect the public (and sometimes public 

health) from recurring threats and inequities in bargaining power to apply these laws to 

 
232 See Lanter, 373 N.E. 2d at 977. 

 
233 See Meagan Burrows, Note, The Cubbyhole Conundrum: First Amendment Doctrine in the Face of 

Deceptive Crisis Pregnancy Center Speech, 45 COLUM. HUM. RTS. L. REV. 896, 902 (2014). 

 
234 See WHAT IS TITLE III?, supra note 196. 

 
235 Of the CPC disclosure states, only Texas provides such grants to CPCs. Otherwise, this would also be a 

fruitful point of intervention for states concerned with curbing CPC deception. See FAKE HEALTH CENTERS, 

https://www.prochoiceamerica.org/ issue/fake-health-centers/ [https://perma.cc/3BPT-58CM]; see also Amy 

G. Bryant & Jonas J. Swartz, Why Crisis Pregnancy Centers Are Legal but Unethical, 20 AMA J. ETHICS 269 

(2018), https://journalofethics.ama-assn.org/article/why-crisis-pregnancy-centers-are-legal-unethical/2018-03 

[https://perma.cc/K9UH-5V9Q]. 



186 COLUMBIA JOURNAL OF GENDER AND LAW 39.2  

CPCs. At bottom, UDAP statutes originated “with a goal of protecting consumers who 

would otherwise be inadequately protected under then-existing law.”236 Applying UDAP 

statutes to CPCs’ deceptive practices will do just that. 

 

IV. Addressing Deception that Inflicts Non-Financial Harm 

 

AGs who succeed in deploying the previous Section’s arguments to apply UDAP 

statutes to CPCs may clear one hurdle only to face a second, more symbolic problem. To 

argue and succeed on the UDAP’s commercial terms is to gloss over the profound, non-

financial nature of the harms a CPC visit has on women who turn to them for help. While 

many women who visit CPCs will have suffered at least some nominal financial loss, the 

more fundamental harm is to women’s personal autonomy. Consumers who unwittingly 

interact with CPCs suffer interference with their ability to make informed decisions about 

their own lives. And some are tricked and detoured for so long that they forfeit their right 

to abortion altogether. A UDAP law that might not even apply where deception causes 

significant harm but no money changes hands is not designed to address such injuries. 

 

One way to more closely tailor these statutes to the reality of deception in the 

abortion services arena without resorting to abortion-specific legislation would be an 

amendment that names this decision-making harm as a basis for the law’s application or 

as an enhancement for its civil penalties. This Section draws parallels between CPCs and 

another area of service provision where deception affects not just victims’ bank accounts 

but their life outcomes and where a harm-based approach to UDAP coverage would 

recognize the full extent of these injuries. 

 

A. CPC Harms Extend Beyond Financial Loss 

 

UDAP statutes are designed to compensate for ascertainable financial losses. And 

some degree of financial loss is inherent in an unwitting encounter with a CPC, whether it 

be bus fare to reach the CPC, wages forgone to attend a bogus appointment, the increased 

cost of an abortion postponed by several weeks, or the lifelong cost of raising a child 

when an abortion is so long delayed it becomes unavailable. But no matter the magnitude 

of the financial harm, CPC deception imposes a harm that extends beyond one’s finances. 

What is at stake when a CPC lies is a woman’s ability to make important life decisions 

without manipulation, deception, or coercion. 

 

 
236 Pridgen, supra note 67, at 943. 



 

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Take the earlier referenced story of the fourteen-year-old girl who, fearing she was 

pregnant and seeking an abortion, ended up at a San Francisco CPC that advertised “free 

pregnancy tests while you wait.”237 The CPC had her return for follow-up appointments 

at least ten times,238 after which point the CPC counselor “told [her] it was too late” to get 

an abortion.239 The CPC then devised an elaborate scheme to prevent the girl’s parents 

from learning of and potentially intervening in the situation, sending a letter claiming the 

girl had won an “overseas scholarship” and requesting the parents sign a release form for 

her travel.240 Once the parents uncovered the scam, the girl was so far along in her 

pregnancy that she was forced to carry to term and place the baby up for adoption.241 The 

District Attorney brought false advertising charges under California’s UDAP.242 

 

The girl had been clear on her choice from the beginning; she wanted to end her 

pregnancy. She testified: “I wouldn’t have gone there if I didn’t think they’d help me get 

an abortion. I only decided to have the baby after it was too late.”243 The CPC had not 

changed her mind; it had robbed her of her options and her agency.  

 

Pursuing a false advertising claim in this instance is a bit like citing a robbery 

getaway driver for speeding or prosecuting an organized crime boss for tax fraud. It may 

be simpler to punish these subsidiary infractions, and perhaps these are the only legally 

cognizable claims, but doing so does not get to the heart of the principal wrong. UDAP 

statutes as currently written may penalize the falsehood and may even be the basis for 

enjoining future deception, but they do not name or show public disapprobation for the 

fundamental decision-making harm that deception in certain services can produce. 

 

The parallels between CPCs and unlicensed immigration consultants or “notarios” 

demonstrate the non-abortion-specific nature of the deception that can occur in service 

provision to vulnerable consumers. This comparison also suggests a basis for a harm-

based UDAP amendment that grapples head-on with what is at stake when deception 

 
237 Maitland Zane, Patient Testifies About Pro-Life Clinic, S.F. CHRON., Aug. 27, 1988, at A4. 

 
238 See District Attorney Sues Anti-Abortion Center, supra note 117. 

 
239 Zane, supra note 237, at A4. 

 
240 See id. 

 
241 See id. 

 
242 See Wallace, Agency Probed, supra note 42, at 1. 

 
243 Zane, supra note 237, at A4. 



188 COLUMBIA JOURNAL OF GENDER AND LAW 39.2  

permeates service areas like health care and legal advice. Both CPCs and notarios rely on 

misrepresentations to attract customers, and both forms of fake service providers pose 

harms that extend beyond the financial realm. Like CPCs that present as abortion clinics, 

notarios set up shop as notaries public (which are untrained administrative clerks) but 

advertise using the Spanish translation “notario” (which in many Latin American 

countries refers to a learned professional who can assist with complex legal matters).244 

Notarios take advantage of this double meaning to lure immigrants who need help 

obtaining legal status, then collect fees often without the ability or intent to perform the 

work requested.245 Just as relying on a CPC’s counsel may cost a woman her ability to 

make a choice about her pregnancy, trusting in a notario’s advice can result in the lost 

opportunity to work,246 time spent in detention,247 and forfeiture of the chance to become 

a citizen.248 

 

Simply put, the deception wrought by either can alter a consumer’s entire life 

trajectory, but UDAP actions are grounded in financial loss. And though some notarios 

have been prosecuted under state UDAP statutes and ordered to repay unearned fees,249 as 

with applying a UDAP law to a CPC, the financial component contemplates only part of 

the harm. Pursuing a UDAP action because a notario robbed an immigrant of several 

 
244 See Anne Langford, What’s in a Name: Notarios in the United States and the Exploitation of a Vulnerable 

Latino Immigrant Population, 7 HARV. LATINO L. REV. 115, 121 (2004) (“In numerous Latin American 

countries, including Mexico, Argentina, Peru, and Honduras, having a law degree is a prerequisite for 

becoming a notario.”); Bianca Carvajal, Note, Combatting California’s Notario Fraud, 35 CHICANA/O 

LATINA/O L. REV. 1, 4–5 (2017). 

 
245 See Langford, supra note 244; Carvajal, supra note 244. 

 
246 See Rachel Kurzius, Immigrants Will Be Reimbursed For Notario Fraud Under D.C. AG Settlement, 

DCIST (Apr. 18, 2017, 2:08 PM), https://dcist.com/story/17/04/18/notario-settlement/ [https://perma.cc/ 

2D7N-YC8S] (mentioning a notario in DC who caused one client to “los[e] out on more than a year of work 

over incorrectly filed documents”). 

 
247 See Langford, supra note 244, at 124–25 for a description of the multiple nonfinancial harms notario 

victims have suffered. 

 
248 See NOTARIO FRAUD, https://portal.ct.gov/DCP/Education-and-Outreach/Education/Notario-Fraud 

[https://perma.cc/P4NP-DARK]. Similarly, the Maryland AG’s website says: “Many noncitizens who might 

otherwise gain legal status and qualify for immigration benefits find they are permanently unable to obtain 

United States citizenship because of the illegal actions of an unlicensed immigration consultant.” BEWARE OF 

IMMIGRATION FRAUD, http://www.marylandattorneygeneral.gov/Pages/CPD/ immFraud/default.aspx. 

[https://perma.cc/7W7W-8H3H]. 

 
249 See Kurzius, supra note 246. 



 

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hundred dollars ignores that he may also have thwarted that person’s chance at 

citizenship or permanently barred her from reentering the country to be with her family. 

 

B. A Legislative Solution 

 

A solution suggested by examining CPCs’ deceptive practices alongside notario 

fraud is to identify deceptive interference with a person’s major life decisions as a basis 

for UDAP coverage. Given the severity of these harms and the specific vulnerabilities of 

clients targeted by deceptive CPCs and notarios, rather than asking judges to apply or 

extend UDAP statutes under their current language, it might be more effective and 

certainly more symbolically meaningful to amend UDAP laws to reflect these losses. The 

core idea would be a legislative amendment aimed at public accommodation deception 

that interferes with a fundamental life decision.  

 

One option is to use the imposition of this kind of harm as the hook for a UDAP 

law’s application. Legislatures could amend their UDAP statutes to define as a prohibited 

deceptive practice the offer or provision of services to the public that include falsehoods 

or misrepresentations that interfere in a major life decision or that otherwise deprive an 

individual of a legal right or benefit. Of course, the specific language would have to be 

worked out with legislative counsel to calibrate the appropriate scope of liability while 

avoiding constitutional vagueness concerns.250 It might also be necessary to limit the 

amendment to intentional or reckless falsehoods, so as not to impose unnecessary liability 

on physicians, lawyers, and other service providers whose business models do not rely on 

deception and whose opposition to expanded grounds for UDAP liability might be 

triggered without this modified language.251  

 

Deceptive interference of this sort could also be the basis for enhanced civil penalties 

for violations of the UDAP statute. Civil penalties are levied by and paid to the state as a 

 
250 It will also be important to provide enough specificity to avoid vagueness and overbreadth challenges. But 

if the amendment is understood to apply only to false public accommodations speech that causes harm, such a 

challenge might be analyzed similarly to the vagueness and overbreadth issues dispensed with by Texas’s 

appellate court in Mother & Unborn Baby Care, 749 S.W.2d at 540. 

 
251 Some professionals are already exempt from UDAP liability. See Debra D. Burke, The Learned 

Profession Exemption of the North Carolina Deceptive Trade Practices Act: The Wrong Bright Line?, 15 

CAMPBELL L. REV. 223, 241–250 (1993), for a discussion of exemptions for professionals. It is unlikely that 

any of these exemptions would include CPCs or notarios because they are decidedly non-learned, untrained 

individuals. To the extent any of the practitioners at a CPC were medically trained, they might be disciplined 

for malpractice instead. 



190 COLUMBIA JOURNAL OF GENDER AND LAW 39.2  

form of additional punishment.252 Although these fines are capped at relatively low 

amounts in the six CPC disclosure states,253 many UDAP regimes impose heightened 

penalties for defrauding seniors or people with disabilities. For example, the civil penalty 

for a violation of the UDAP law doubles to $5,000 in California for fraud perpetrated 

“against one or more senior citizens or disabled persons.”254 In Texas, penalties increase 

more than tenfold to $250,000 for deceiving someone over the age of sixty-five.255 Given 

these precedents, such a UDAP amendment might take the form of establishing enhanced 

penalties for fraud that deprives someone of a constitutional right (like the right to 

abortion) or adversely affects the course of a legal proceeding (like the naturalization 

process). An alternative in keeping with the identity-based enhanced penalties for the 

elderly and disabled could be enhanced penalties for deceiving pregnant people. 

 

The added benefit of either of these legislative amendments is that they look more 

like traditional UDAP provisions that have withstood First Amendment challenges than 

the CPC disclosure requirement at issue in NIFLA. Ultimately, naming the exact 

mechanism by which harm is imposed on victims of public accommodations fraud would 

carry symbolic weight as a marker of the rights and opportunities the state seeks to 

protect and of the behaviors the state will not tolerate.256 
 

CONCLUSION 

 

CPCs that falsely advertise as abortion clinics and then lie to women about whether 

or not they are pregnant, how long abortion is legal, and how quickly—if at all—they 

should seek medical assistance have been a problem for decades. State and local officials 

 
252 See Schurtman & Lillard, supra note 143, at 79. 

 
253 The range is from a low of $2,500 per violation in California to $25,000 per violation in Connecticut. 

CAL. BUS. & PROF. CODE § 17206 (West 2018); CONN. GEN. STAT. § 42-110o (2018); N.Y. GEN. BUS. LAW § 

350-d (McKinney 2018) (instituting a penalty not more than $5,000 per violation); HAW. REV. STAT. § 480-

3.1 (2018) (instituting a penalty between $500 and $10,000 per violation); MD. CODE ANN., COM. LAW § 13-

410 (West 2018) (instituting a penalty of up to $10,000 per violation or $25,000 for repeat violations); TEX. 

BUS. & COM. CODE ANN. § 17.47 (West 2018) (instituting a penalty of no more than $10,000). 

 
254 CAL. BUS. & PROF. CODE § 17206.1 (West 2018). 

 
255 TEX. BUS. & COM. CODE ANN. § 17.47 (West 2018). 

 
256 It might even generate a pool of state money that could fund services for low-income individuals facing 

unplanned pregnancies or unexpected parenting costs. In Massachusetts, a false advertising UDAP case was 

settled by requiring the mattress company defendant to provide $100,000 worth of bedding to local homeless 

shelters, and in California, the court mandated a UDAP defendant seller to pay into a recovery fund that 

would benefit people similarly situated to plaintiffs. See Schurtman & Lillard, supra note 143, at 79. 



 

39.2 COLUMBIA JOURNAL OF GENDER AND LAW                         191 

 

 

 

have responded with varied tactics, starting with consumer protection lawsuits in the 

1980s and ending most recently with statutes requiring CPCs to post disclosures about 

their services. Although it has been many years since a state attorney general initiated a 

major UDAP action against a deceptive CPC, in the wake of the NIFLA decision 

invalidating CPC disclosure laws, UDAP statutes offer new promise. After all, UDAP 

statutes are designed to combat deception and have been successfully applied to CPCs 

with limited constitutional impediment. UDAP actions also fit within the trend of state 

AGs embracing the power of coordinated action to set national priorities. 

 

The need for these efforts is ongoing. For instance, a suit challenging Hartford, 

Connecticut’s CPC disclosure ordinance was filed last April.257 In the face of a possible 

injunction, a UDAP-based approach offers an immediate alternative. In Virginia, too, 

recent developments invite UDAP enforcement. At the end of September, a federal 

district court judge relied in part on the prevalence of CPCs to uphold one of Virginia’s 

abortion restrictions.258 In Falls Church Medical Center, LLC v. Oliver, abortion rights 

advocates argued that a state law that imposed a mandatory delay and required women to 

make at least two separate trips—one to receive an ultrasound and another at least 24 

hours later for the abortion—erected significant geographic, financial, and temporal 

barriers to the right to abortion when clinics are so few and far between.259 The court, 

however, pointed to “the multiple free ultrasound providers located throughout the 

Commonwealth” as one reason that a separate trip was not unduly burdensome.260 Yet, 

the cited list of “free ultrasound providers” overlapped almost entirely with a directory of 

Virginia’s CPCs.261 It is possible these particular CPCs do not engage in the problematic 

practices discussed in this Article, but given widespread patterns of dissemblance and 

misleading tactics, reliance on these centers as care providers for women who have 

already decided to obtain an abortion seems ill-considered—at least without further 

verification. Thus, the state AGs’ office has ample reason to ensure that these CPCs 

comply with Virginia’s UDAP statute. 

 

 
257 Caring Families Pregnancy Servs., Inc. v. Hartford, No. 3:19-cv-00584 (D. Conn. filed Apr. 18, 2019). 

 
258 Falls Church Med. Ctr., LLC v. Oliver, No. 3:18-cv-00428-HEH, slip op. (E.D. Va. Sept. 30, 2019). 

 
259 Id. at 50–52. 

 
260 Id.  

 
261 Id.; FIND A PREGNANCY CENTER, https://www.care-net.org/find-a-pregnancy-center (search “Virginia”) 

[https://perma.cc/N898-74P2]. 



192 COLUMBIA JOURNAL OF GENDER AND LAW 39.2  

UDAP laws, however, are not without their drawbacks. First, many contain language 

that limits their application to businesses that sell or consumers who buy a good or 

service. This can place nonprofit CPCs that give away (rather than sell) their services 

outside the statute’s reach. Second, with their financial focus, UDAP laws often fail to 

countenance the full extent of the harms that a deceptive service provider can inflict on 

victims. But possible solutions emerge in the form of more expansive interpretations of 

existing UDAP statutes and legislative amendments that eliminate commerce-related 

constraints or treat deception that results in decision-making harm as a basis for UDAP 

enforcement. 

 

Overall, this Article has argued for a strategy that combines AGs’ investigation and 

litigation powers with their increasing centrality in national policymaking. In embracing 

this collective project of renewed UDAP enforcement, AGs can urge courts to consider 

the remedial purpose of this legislation while also inviting the legislature to update the 

law.  

 

There is also plenty that AGs can do to amplify their efforts without waiting on the 

judicial or legislative branches in their states. For instance, AGs’ activities to combat 

notario fraud demonstrate the importance of partnerships with community organizations 

and the benefits of coordinated communications efforts. Collaborations between AGs, 

immigrant advocacy groups, and professional legal associations have helped identify 

victims of notario fraud through public education campaigns and centralized complaint 

collection. The American Bar Association has established a working group to combat 

immigration-services fraud and has built an online action hub that centralizes the 

consumer complaint process with a hyperlinked map that connects to each state’s AG’s 

office or consumer protection division.262 As with immigrant victims who hesitate to 

report notarios out of a lack of familiarity with the legal system or a fear of exposing their 

tenuous legal status, it is likely that the documented complaints from women misled by 

CPCs represent only a portion of the consumers affected. Surely there are other women 

who were too busy or too ashamed to come forward, and others still who would not have 

known where to file a complaint if they wanted to. Overcoming barriers to reporting 

could help AGs target their enforcement efforts at the most problematic CPC actors and 

tailor injunction requests to the falsehoods that most interfere with women’s choices.  

 

 
262 STOP NOTARIO FRAUD, https://web.archive.org/web/20180501103036/http://www.stopnotariofraud.org/ 

get-help.php [https://perma.cc/26T7-W683]; Am. Bar Ass’n Comm’n on Immigr., Resources for Victims of 

Notario Fraud, AM. BAR ASS’N (July 19, 2018), https://www.americanbar.org/groups/public_services/ 

immigration/projects_initiatives/fight-notario-fraud/victimresources/ [https://perma.cc/9PE5-X3HD]. 



 

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As such, AGs could benefit from partnerships with abortion clinics and women’s 

groups. In fact, it appears that such partnerships were once the norm at the height of 

UDAP enforcement against deceptive CPCs in the 1980s and 90s.263 A more modern 

twist might come in the form of connecting with web-based groups to ease CPC 

complaint reporting. The website www.exposefakeclinics.com is hosted by a grassroots 

storytelling movement that aims to spread the word about CPC deception but is 

disconnected from any governmental reporting mechanism.264 AGs’ offices might build 

on the reach of this campaign by requesting that the site point consumers to AGs’ 

websites and online complaint forms. For those consumer protection divisions that lack 

an online reporting process, as many do, state and city attorneys could partner with Code 

for America, which has collectives of volunteer coders who work with state and local 

officials to smooth citizen-government interactions through the design of centralized 

benefits hubs and other streamlined online interfaces.265 

 

Finally, AGs could use their own websites to promote their CPC enforcement efforts. 

Many AG websites feature a dedicated section on notario fraud, for example. Maryland’s 

has an entire subsite on notarios, with printable flyers and brochures that warn of 

notarios’ deceptive practices and advise on reporting options for those who have been 

harmed.266 Spotlighting CPC deception and providing dedicated information for pregnant 

women could be helpful, if not from a prophylactic perspective, then to ensure a clear 

 
263 In the 1980s and 90s, counselors at abortion clinics in California and Iowa began documenting the 

experiences of women who came to the clinic after having visited a CPC. See Consumer Prot. & Patient 

Safety Issues Involving Bogus Abortion Clinics, supra note 4, at 316–17 (statement of Leslie Thomas, Special 

Projects Coordinator, Planned Parenthood of San Diego & Riverside Ctys.). In Ohio, a religiously affiliated 

abortion rights group collected stories from women across the state and identified clergy who “had counseled 

many women traumatized by deceptive [CPC] volunteer[s]” and were willing to testify to these experiences. 

Id. (“In addition, attached are summaries prepared by Planned Parenthood counselors, documenting the 

experiences of women who came to Planned Parenthood after visiting various San Diego County bogus 

clinics.”); id. at 387, 392–403 (statement of Judith Rutledge, Dir. Pub. Affairs, Iowa Planned Parenthood 

Affiliate League) (referring to patients’ CPC reports collected at abortion clinics); id. at 365–66 (statement of 

Betty Menear, State Coordinator, Ohio Religious Coal. for Abortion Rights). 

 
264 EXPOSE FAKE CLINICS, https://www.exposefakeclinics.com/ [https://perma.cc/PF24-BVBM]. 

 
265 INTEGRATED BENEFITS INITIATIVE, https://www.codeforamerica.org/programs/integrated-benefits 

[https://perma.cc/GG2C-WMUP]. 

 
266 BROCHURES, http://www.marylandattorneygeneral.gov/Pages/CPD/immFraud/immFraud_brochure.aspx 

[https://perma.cc/MB79-MGQD]. California’s AG’s website also features a page that collects consumer 

information for frequently targeted populations like immigrants and the elderly. COMMONLY TARGETED 

GROUPS, https://oag.ca.gov/consumers/ commonly-targeted-groups [https://perma.cc/FZ4X-N2M2]. 



194 COLUMBIA JOURNAL OF GENDER AND LAW 39.2  

complaint portal pops up when fraud victims, abortion clinic counselors, and other 

professionals who serve pregnant women go online to search for help.  

 

Each of these non-legal approaches would complement and build upon the 

foundation established by a robust AG enforcement campaign by allowing AGs to better 

collect data on the problem, better target their investigative efforts, and better prove their 

cases. Together with judicial cooperation in expansive UDAP interpretation and 

legislative tweaks to broaden UDAP language where necessary, these collective efforts 

might just make UDAP statutes the next frontier in combatting CPC deception.