Appeals Court… Upholds Clinic’s Right Not To Promote Abortion

By MIKE MANNO

The Fourth Circuit Court of Appeals delivered a double rebuke to the City of Baltimore’s attempt to enlist a crisis pregnancy center to promote abortions, with the final blow delivered January 5.
Concern by city officials that women seeking abortions might be confused by advertisements and misled into visiting pro-life pregnancy centers rather than an abortion clinic which might cause a delay in their ability to terminate their pregnancy, the city council passed an ordinance in December of 2009 that required any “limited-service pregnancy center” to post a disclaimer notifying clients that it “does not provide or make referral for abortion or birth-control services.”
In short, the ordinance forced crisis pregnancy centers to either refer for abortions or display a pro-abortion message, drafted by the government, on its walls. In response, the Greater Baltimore Center for Pregnancy Concerns, Inc., filed a federal lawsuit against the city to block enforcement of the law.
The Center, housed rent free in a Catholic church, provided pregnant women with counseling, pregnancy tests, sonograms, prenatal vitamins, diapers, and other assistance, all free of charge. It did not, however, refer for abortions.
The Center initially won in the district court which granted summary judgment for the Center on the basis that the ordinance violated its right of free speech and because it was not narrowly tailored to seek a compelling state interest.
On appeal, a three-judge panel of the Fourth Circuit affirmed the decision, but the entire court, en banc, vacated the district court’s decision and sent the case back for further proceedings. On rehearing the district court again held for the Center and the city took another appeal and early this month the court of appeals again held for the Center.
“The city has considerable latitude in regulating public health and deceptive advertising. But Baltimore’s chosen means here are too loose a fit with those ends, and in this case compel a politically and religiously motivated group to convey a message fundamentally at odds with its core beliefs and mission,” said the court in a unanimous decision against the city.
The city had argued that the ordinance was a routine exercise of the state’s police power to regulate commercial and professional speech and that the court should use a “relaxed” level of scrutiny. The court rejected that argument, finding that the ordinance, as applied to the Center, did not regulate speech in a commercial transaction.
“Nothing in the record suggests that the Center proposes any transactions in the waiting room where the disclaimer would appear….[T]he Center collects no remuneration of any kind….A morally and religiously motivated offering for free services cannot be described as a bare ‘commercial transaction’,” the court wrote, adding: “The city contends that the ordinance regulates commercial speech because the Center advertises its services, some of which have commercial value in other contexts. But that fact alone does not suffice to transform the Center’s ideological and religious advocacy into commercial activity.”
Nor does the ordinance regulate professional speech since Maryland pregnancy centers are not required to be licensed or are subject to state regulatory control, said the court. “Simply put, no one in the Greater Baltimore Center is practicing a ‘profession’ in the traditional sense contemplated by our First Amendment jurisprudence.”
Then, turning to the question of “forced speech,” the court wrote:
“The classic First Amendment violation has always been thought to involve an outright prohibition by the state of certain speech. But over time adjunct First Amendment rights have emerged…the right not to utter political or philosophical beliefs that the state wishes to have said. These adjunct rights have become crucial to speech freedoms because, without them, states can bend individuals to their own beliefs and use compelled speech as a weapon to run its ideological foes into the ground.”
Then the court turned to Baltimore’s stated goal in adopting the ordinance which was to address deceptive advertising and to avoid health risks that might accompanying delays in seeking an abortion.
“After seven years of litigation and a 1,295 page record before us, the city does not identify a single example of a woman who entered the Greater Baltimore Center’s waiting room under the misimpression that she could obtain an abortion there. What the record does show is affirmative advocacy of abortion alternatives by a lawful nonprofit group,” the court wrote.
Then in its harshest criticism against the city, it said: “Particularly troubling in this regard is…that the ordinance compels speech from pro-life pregnancy centers, but not other pregnancy clinics that offer or refer for abortion….Especially in this context, content-based regulation ‘raises the specter that the government may effectively drive certain ideas or viewpoints from the marketplace’.”
Finally, the court warned about “weaponizing the means of government against ideological foes” to prescribe “what shall be orthodox in politics…or other matters of opinion or force citizens to confess by work or act their faith therein.”
“Today’s decision confirms that government has no place in mandating speech — especially speech associated with deeply held religious beliefs,” said Mark Rienzi, senior counsel at Becket, the nonprofit religious liberty firm that represented the Center.
There has been no announcement by the city as to whether or not it will seek further review. In support of the city’s position, friend of court briefs were filed by Catholics for Choice and two Democratic members of the Maryland congressional delegation: Sen. Christopher Van Hollen and Cong. Elijah Cummings.
Currently pending before the U.S. Supreme Court is a case from the Ninth Circuit, National Institute of Family & Life Advocates v. Becerra, a similar case from California in which the courts have upheld “compelled disclosures” in pro-life clinics in that state.
The difference between the cases is that in the Baltimore case there was no licensing requirement for such clinics, whereas the California case involved licensing law and the courts there held the law could be applied to professional speech.
A distinction without a difference? We’ll have to wait and see.