Pro-life pregnancy centers in New York state may continue to inform their patients about the possibility of reversing a chemical abortion, the U.S. Court of Appeals for the Second Circuit ruled Monday. The ruling — National Institute of Family and Life Advocates (NIFLA) v. Letitia James — upholds a district court ruling from August, which granted a preliminary injunction to NIFLA’s network of pregnancy resource centers against state prosecution. “This ruling is a major victory for pregnancy resource centers and the women and children they serve,” said Joy Stockbauer, policy analyst for the Center for Human Dignity at Family Research Council.

The controversy began last year, when New York Attorney General Letitia James (D) sued 11 pro-life pregnancy centers operated in New York by a different network, Heartbeat International. On the basis of a recently adopted state law, James’s lawsuit alleged that the Heartbeat International clinics were engaging in “misleading advertising” by informing women that it is possible to reverse the effects of the abortion pill through a timely dose of progesterone.

In fact, countered Alliance Defending Freedom (ADF), which represents NIFLA, “Statistics show that abortion-pill reversal has likely saved more than 7,000 unborn lives, and current research demonstrates a success rate of up to 64-68%.”

The New York law was part of a post-Dobbs trend of progressive legislatures seeking to prove their pro-abortion bona fides by cracking down on pro-life clinics in general, and abortion pill reversal in particular. In April 2023, the Colorado legislature banned the practice of abortion pill reversal on the grounds that it was ineffective. However, religious hospitals challenged the law, presenting evidence that abortion pill reversal is effective and pleading their moral duty to save the lives of as many unborn children as possible. At first, the state agreed not to enforce the ban, but a federal judge eventually blocked the law for unconstitutionally infringing on religious exercise.

“It’s extremely telling that those who brand themselves as ‘pro-choice’ are desperate to prevent women from being informed about the existence of abortion pill reversal,” Stockbauer told The Washington Stand.

NIFLA viewed James’s lawsuit with alarm. Their own websites included statements like, “If you have recently taken the abortion pill and are having regret, it may be possible to undo the effects of abortion drugs,” and “If you’ve taken the first [dose of mifepristone] and had doubts or changed your mind, you still have a chance to save your pregnancy.” “Fear[ing] similar retaliatory action and punishment,” as the court described, they filed their own lawsuit against James, “to enjoin her from ‘targeting, chilling, and punishing Plaintiffs’ speech about [APR].’”

In August 2024, Judge John Sinatra, a Trump appointee in the Western District of New York, granted the NIFLA network a preliminary injunction against prosecution by the state of New York for merely informing women about the possibility of abortion reversal. He found that the pregnancy centers were “likely to succeed on the merits of their First Amendment Free Speech claim, and they are suffering irreparable harm each day that their Constitutional freedoms are infringed.”

New York appealed, arguing that it could properly regulate abortion pill reversal claims as commercial speech, which faces a lower level of judicial scrutiny (intermediate scrutiny, as opposed to strict scrutiny).

However, a three-judge panel of the Second Circuit, consisting of two Biden appointees and a Trump appointee, found the state’s arguments to support this claim “unpersuasive.” To the argument that the speech was commercial because “someone must bear the cost,” the court responded that “this would be true of any non-profit providing information, free services, and access to third-party providers.”

To the argument that the statements were commercial speech because “consumers will likely be led to believe that the NIFLA plaintiffs will arrange for them to receive [the APR protocol],” the court distinguished the fact that NIFLA plaintiffs “receive no direct or indirect payment for the services they provide or referrals they make.”

To the state’s argument that the district court failed to examine the full context in its “commercial speech inquiry,” the appellate court responded that “the district court considered more than just the NIFLA plaintiffs’ motivation. Indeed, the district court emphasized that, based on the record, the NIFLA plaintiffs do not provide APR themselves, and instead refer individuals to third-party providers who do; the NIFLA plaintiffs offer their services for free; and the NIFLA plaintiffs do not receive any direct or indirect remuneration for the referrals.”

Consequently, the appellate court found that the clinics’ “APR [abortion pill reversal]-related statements are noncommercial speech, and the Attorney General has not met her burden to demonstrate the State’s regulatory conduct can survive strict scrutiny.”

The court upheld the lower court’s analysis, which held “that the speech at issue is noncommercial because, based on the uncontroverted evidence in the current record, the speech is religiously and morally motivated, the NIFLA plaintiffs receive no remuneration or other financial benefit for engaging in it, and, as the NIFLA plaintiffs do not provide APR themselves, the speech serves only to provide the public with information about APR and access to third-party providers that can offer APR.”

To make the matter clearer still, the court added an argument of its own. The state’s interpretation of commercial speech “could potentially subject a sweeping range of non-profits to regulation of their speech,” argued the court. The court cited hypothetical examples:

“a reproductive rights group in a state with abortion restrictions that provides information about out-of-state organizations that will help women obtain the procedure for free; an LGBT rights group in a state with gender-affirming care restrictions that provides free information about out-of-state organizations that will help individuals seeking hormone therapy to obtain it; or a group that matches immigrants with organizations providing access to employment, English language classes, or immigration legal services.”

In other words, both sides of the debate over America’s social and moral character benefit from free speech, and both sides would be harmed if free speech were suddenly restricted under the pretense of regulating “commercial speech.” Rather than seeking court intervention, the relative parties should be doing their utmost to promote their cause through persuasion, not litigation.

Significantly, the Second Circuit also recognized the scientific legitimacy of abortion pill reversal:

“If a woman has begun a medication-induced abortion by taking mifepristone, but has not yet taken misoprostol and decides she would like to continue her pregnancy, she may take progesterone supplements in an attempt to counter the effects of the mifepristone. The theory is that the progesterone supplements can increase the woman’s progesterone levels to such a degree that the effects of mifepristone are neutralized. This use of progesterone is called ‘abortion pill reversal’ or ‘APR.’”

This judicial recognition will likely provide an invaluable legal precedent to other pregnancy centers battling pro-abortion lawsuits, such as Heartbeat International.

“This simple and life-saving treatment gives unborn children a second chance at life and saves mothers from forever living with the consequences of an abortion. Thanks to the amazing work of the Abortion Pill Rescue Network and pregnancy resource centers, thousands of children are alive today who would not otherwise be,” Stockbauer said. “I pray that God will use the evil intentions of pro-abortion radicals for good, using their efforts to restrict abortion pill reversal as a means to inform even more women about its existence.”