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Testimony Regarding Proposed Rulemaking Implementing Local Law 17’s Disclosure Requirements for Pregnancy Services Centers

Testimony of Katharine Bodde on behalf of the New York Civil Liberties Union before The New York City Department of Consumer Affairs Regarding the Proposed Rulemaking implementing Local Law 17’s disclosure requirements for Pregnancy Services Centers

Good afternoon. My name is Katharine Bodde and I am a Policy Counsel with the New York Civil Liberties Union reproductive rights program. I would like to thank the Commissioner of Consumer Affairs for the opportunity to provide testimony at today’s hearing. On behalf of the NYCLU, I respectfully submit the following testimony regarding the Proposed Rule.

The NYCLU, the state affiliate of the American Civil Liberties Union, is a not-for-profit, nonpartisan organization with eight offices across the state and nearly 50,000 members. The NYCLU’s mission is to defend and promote the fundamental principles, rights and constitutional values embodied in the Bill of Rights of the U.S. Constitution and the Constitution of the State of New York. This includes the rights to privacy, personal autonomy, and equality that are the foundation of reproductive freedom, and the rights to free speech, assembly, and religious liberty embodied in the First Amendment. In light of our long history of vigorously defending and balancing these sometimes competing constitutional concerns, as well as our ongoing support of the law underlying this rulemaking, the NYCLU is uniquely situated to provide testimony on this matter.

Although not licensed, Pregnancy Services Centers (PSCs) give the impression that they are operating as medical facilities. Further, many PSCs have been known to use deceptive and inflammatory material to dissuade women from seeking time-sensitive reproductive health care such as abortion and contraception. As a result, women may rely on inaccurate information or, in some instances, believe that they have already received medical care, thus delaying or deterring time-sensitive health care provided by licensed medical practitioners. The city has a substantial interest in promoting public health and protecting individuals from medical fraud. To address these concerns, the New York City Council passed Local Law 17 of 2011, which requires PSCs to disclose to consumers whether or not a licensed medical provider is on staff and providing, or supervising the provision of, its services.1

The NYCLU supports the enforcement of this important requirement through the Commissioner’s adoption of the Proposed Rule, which addresses Local Law 17’s requirements for written disclosures by the posting of signs and in advertising. The NYCLU recommends two amendments to the Proposed Rule. First, the NYCLU recommends that the Department address the entirety of Local Law 17’s requirements as upheld by the United States Court of Appeals for the Second Circuit in Evergreen Ass’n, Inc. v. City of New York2 As confusion likely exists regarding the scope of Local Law 17 because of the extended litigation, the Department should take the opportunity to clarify which provisions of the law remain intact in the Proposed Rule or in separate guidance. Second, to improve the Proposed Rule’s clarity, the NYCLU suggests that subsection of § 5-266, which addresses website advertising, be moved to § 5-267.

The Proposed Rule should address Local Law 17’s oral disclosure requirement and the critical confidentiality protections provided by the law, both of which remain intact following the Second Circuit decision. In addition to a written disclosure, Local Law 17 requires that PSC representatives make an oral disclosure as to whether or not they have a licensed medical provider on staff upon a consumer’s request for information about whether a PSC provides abortion care, emergency contraception, or prenatal care.3 Often, the first contact between a woman seeking care and a PSC representative will take place when a woman inquires about available services, either over the phone, or at a PSC reception area. In either case, it is vital that women seeking time-sensitive medical services receive clear and immediate information about the nature of the care being rendered and the availability of licensed medical staff to provide this care – indeed, consumer access to clear and complete information is the express purpose of Local Law 17. Thus, implementation of the oral disclosure requirement is critical to ensure that consumers receive adequate notice of, and are informed as to the nature of the services they are receiving. Further, Local Law 17 places important restrictions on PSCs regarding the release of consumers’ health and personal information.4

Although Local Law 17 does not specify that the Commissioner adopt rules regarding the oral disclosure requirement or the release of health and personal information, the NYCLU urges the Department to expand the Proposed Rule or to issue guidance as to these requirements. As explained above, given the years of litigation regarding Local Law 17, confusion likely exists as to whether these provisions of Local Law 17 remain intact. By expanding the Proposed Rule or issuing additional guidance on these topics, the Department will ensure robust enforcement of, and compliance with, the law’s provisions.

In addition, the NYCLU supports the Proposed Rule’s provision regarding the placement of the required written disclosures on a PSC’s website, reflected in subsection d of proposed Section 5-266. This portion of the Proposed Rule reflects the important role that the internet plays in many women’s searches for pregnancy-related services. Requiring a PSC to post a disclosure on its website will fulfill Local Law 17’s purpose that consumers not fall victim to PSCs’ deceptive practices. The NYCLU recommends relocating the website disclosure requirement from § 5-266 to § 5-267 of the proposed rule. A PSC that seeks to understand its obligations regarding disclosures on its website under Local Law 17, is more likely to turn to § 5-267, titled “Disclosures in Advertising,” than § 5-266, titled “Display of Sign for Required Disclosure.” This change will therefore improve the clarity of the Proposed Rule.

In conclusion, the NYCLU supports the City’s ability to safeguard women’s access to reproductive health care services and to prevent delays in medical care. We look forward to the successful implementation of Local Law 17, and respectfully submit our recommended changes to the Department.

1 N.Y.C. Admin. Code § 20-816.
2 Evergreen Ass’n, Inc. v. City of New York. 740 F.3d 233 (2d Cir. 2014) cert. denied, 135 S. Ct. 435 (2014).
3 N.Y.C. Admin. Code § 20-816(f)(2).
4 N.Y.C. Admin. Code § 20-817.

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