New York Appeals Decision Striking Anti-Pregnancy Center Law

State   Steven Ertelt   Aug 2, 2011   |   4:24PM    New York, NY

New York City is not content with a judge’s ruling granting a preliminary injunction prohibiting a new pro-abortion law from taking effect that places hefty restrictions on pregnancy centers helping women avoid abortions. City officials have filed an appeal.

“The City of New York has filed a quick notice of appeal, again attempting, to shut down our life saving operations in all five NYC boroughs,” says Chris Slattery, the founder and director of a chain of pregnancy centers in New York City. He said he is not surprised by the decision because of the flow of campaign donations from Planned Parenthood and NARAL-NY to pro-abortion city leaders like Christine Quinn and Mayor Mike Bloomberg.

Slattery encouraged pro-life advocates to continue praying for and supporting the pregnancy centers as they fight the law, which now heads to the Second Circuit Court of Appeals.

“You and so many friends have been so supportive over the nine months of this hard fight. You have prayed, sent emails, signed petitions, come to rallies, written letters, made calls, appeared at City Council meetings, and even blessed us with your financial support,” he said. “The fight is now entering a new phase.  And, in these dogs days of a sizzling hot summer, while our team of over 30 interns and staff work both indoors in our dozen Life Centers, and outdoors at select NYC abortion mills, we need your support again, now more than ever.”

“Remember, the entire nation is watching this critical battle in New York City, and I committed to fight this wicked ordinance,” he added. “Pro-abortion zealots know that our side is winning the cultural war across the fruited plains in many pro-life states but they are attempting to lay siege to our pro-abort controlled major liberal cities with speech squelching, anti-life laws like NYC’s #17.”

Slattery says “attorney for the City of New York have forced me to turn over a stunning amount of invasive information about our work” including copies of advertising for the past five years, all center related emails, fundraising letters, names of doctors and staff members, manuals, and additional documents.

“My attorneys faced a contempt hearing and fines from the court, if we did not supply this information,” he said. “They are literally trying to kill us with paperwork and discovery requests.  This is nothing more than an attempt to wear us down, lower our morale, and try to find some smoking gun to shut us down, while we work our tails off to stay open, keep babies from being slaughtered, and mothers from being exploited.”

Judge William Pauley issued the decision striking the law saying he agreed with pregnancy centers that the law is unconstitutionally vague and that it would present a discriminatory enforcement because it did not also apply to centers that do abortions.

Judge Pauley, of the U.S. District Court for the Southern District of New York, concluded the law violates free speech saying the law’s “over-expansiveness is evident from its very language.” He was especially critical of the City’s desire to single-out crisis pregnancy centers with the new law.

“Defendants’ second argument–that Plaintiffs engage in commercial speech because they are provided an audience to whom they can espouse their beliefs–is particularly offensive to free speech principles,” the court declared.  “While Defendants apparently regard an assembly of people as an economic commodity, this Court does not.  Under such a view, flyers for political rallies, religious literature promoting church attendance, or similar forms of expression would constitute commercial speech merely because they assemble listeners for the speaker.”

“This Court will not upend established free speech protections in service of Defendants’ overly broad definition of commercial speech,” the judge added. “Local Law 17′s fundamental flaw is that … permits the Commission to classify a facility as a ‘pregnancy services center’ based solely on unspecified criteria.”

The city council approved the bill on a 39-9-1 vote and the ordinance that would place stringent limits on the advertising pregnancy centers use and require them to post signs designed to dissuade women from seeking their abortion alternatives services.

Alliance Defense Fund attorneys filed suit against the city over the law that the pro-life legal group says “threatens non-medical, pro-life pregnancy care centers with steep fines and potential closure if they don’t post signs and publish in their ads that the city health department encourages women to go elsewhere.”

Officials with the American Center for Law and Justice also filed a federal lawsuit challenging the ordinance. The ACLJ represents numerous crisis pregnancy centers and contends the law violates the U.S. Constitution as well as the New York State Constitution.

“This is a resounding victory underscoring what we have argued all along – this law which forces crisis pregnancy centers to adopt and express views about abortion and contraception that they strongly disagree with is constitutionally flawed,” said CeCe Heil, Senior Counsel of the ACLJ. “The court clearly understood that this law punishes pro-life advocates. We’re confident that this law will never see the light of day and that the constitutional protections afforded to crisis pregnancy centers will be protected.”

The ACLJ represents EMC Frontline Pregnancy Centers and AAA Pregnancy Problems Center which operate a total of 13 crisis pregnancy centers across New York City. The pro-life legal group filed the lawsuit today on their behalf in U.S. District Court for the Southern District of New York.

The suit contends that the ordinance violates the constitutionally protected rights to freedom of speech, freedom of assembly and association, freedom of the press, and due process of law, guaranteed to the plaintiffs by the First and Fourteenth Amendments to the U.S. Constitution, as well as the New York Constitution.

The ordinance requires crisis pregnancy centers to disclose in advertisements and in their facilities a list of services they do not provide, such as abortions or emergency contraception – it also requires the centers to make disclosures verbally. The lawsuit contends that at a minimum, the ordinance “unconstitutionally compels Plaintiffs to speak messages that they have not chosen for themselves, with which they do not agree, and that distract from and detract from the messages they have chosen to speak.”

The ACLJ asks the court to keep the ordinance from being implemented while the lawsuit proceeds.  The suit seeks injunctive relief, in the form of preliminary and permanent injunctions, and urges the court to declare the law unconstitutional.  The ACLJ is being assisted in the case by Christopher Ferrara, New York Litigation Counsel to American Catholic Lawyers Association, who is serving as local counsel.

ADF Legal Counsel Matt Bowman  commented on the law and the lawsuit in remarks to LifeNews.com.

“Pro-life pregnancy centers, which freely offer real help and hope to women and their preborn children, shouldn’t be punished by political allies of those who make their money aborting babies,” he said. “This order keeps the city from enforcing a law that is specifically designed to deter pregnant women from receiving the help they need to make fully informed choices about their pregnancy while this lawsuit goes forward. The order also means that the court is likely to find the ordinance unconstitutional.”

Bowman noted the court was also critical of the New York Civil Liberties Union’s defense of the city ordinance: “Given the New York Civil Liberties Union’s (“NYCLU”) usual concern for First Amendment rights, its amicus brief supporting Defendant’s expansive view of the commercial speech doctrine is puzzling.”

Bloomberg signed Bill 371-A into law and said, “It may be unconstitutional, but I am going to sign it anyway.”

Bloomberg signed the bill just after a new report indicated 41 percent of pregnancies in New York City end in abortion. The report, which was recently exposed at a press conference by Archbishop Timothy Dolan and an interfaith coalition of religious leaders, showed an abortion rate of 60% for African American women and that 90% of all abortions in New York City were performed on ethnic minorities.

Two federal courts have issued injunctions against similar bills in Maryland. ADF-allied attorneys were involved in both cases, with ADF attorneys directly representing the pregnancy care center in the most recent ruling. That gives pregnancy centers in New York hope that the legal precedent will be used in their case.

In January, a federal judge struck down a Baltimore law that was the subject of a lawsuit brought by the Archdiocese of Baltimore because it unfairly attacks pregnancy centers that provide women with abortion alternatives.

The judge granted summary judgment finding the anti-pregnancy center law is viewpoint-based and impossible to render constitutional under the First Amendment. He dismissed without prejudice all other claims and found a couple of the plaintiffs lacked standing (including the Archbishop and the Catholic church that provides space for one of the pregnancy centers that filed suit) but the ruling is viewed as a substantial victory by pro-life advocates.

Early in March, a federal judge struck down most of a law Montgomery County, Maryland officials passed that targets pregnancy centers and requires them to post signs that may turn potential clients away.

ADF is representing two centers and a maternity home in the lawsuit, Pregnancy Care Center of New York v. City of New York, filed with the U.S. District Court for the Eastern District of New York. M. Todd Parker of Moskowitz & Book, LLP, is local counsel.