Appeals Court Asked to Halt NYC Law Attacking Pregnancy Centers
by Steven Ertelt | New York, NY | LifeNews.com | 1/30/12 7:51 PM
A pro-life legal group today urged a federal appeals court to uphold an earlier decision that blocked the enforcement of New York City’s recently approved ordinance targeting crisis pregnancy centers.
In July, a federal judge issued a preliminary injunction blocking the enactment of the measure abrogating the First Amendment rights of the crisis pregnancy centers. The American Center for Law and Justice (ACLJ), which filed a federal lawsuit challenging the constitutionality of the new ordinance, today filed its brief at an appeals court in response to New York City’s appeal of the preliminary injunction.
“This is a case where the federal district court was absolutely correct in its analysis and decision,” stated CeCe Heil, Senior Counsel of the ACLJ.
She added: “The lower court correctly concluded that this faulty law targets and punishes pro-life advocates. Crisis pregnancy centers enjoy constitutional protections and must never be compelled to adopt and express views about abortion and contraception that they strongly disagree with, as this law requires. We’re hopeful the appeals court will affirm the district court’s injunction, ensuring that pro-life advocates are not punished for their beliefs.”
When the preliminary injunction was issued in July, a federal district judge concluded that the law violates free speech of the crisis pregnancy centers saying the law’s “over-expansiveness is evident from its very language.” The court was especially critical of the City’s desire to single-out crisis pregnancy centers with the new law.
In a response to the City’s appeal filed at the U.S. Court of Appeals for the Second Circuit, the ACLJ argues in its brief that the law violates the First Amendment right to the freedom of speech and violates the Fourteenth Amendment because it is impermissibly vague.
The brief contends the law is flawed in many areas: “The law is subject to strict scrutiny because it significantly burdens and alters Plaintiffs’ expression and does not regulate commercial speech or the speech of a regulated profession. LL17 fails strict scrutiny because it is not based upon a compelling record of harm, is not narrowly drawn to the City’s stated interests, and is not the least restrictive means of achieving a compelling governmental interest. In addition, LL17 is impermissibly vague because key terms are not sufficiently defined, and the Commissioner has unbridled discretion to subject a facility to LL17’s requirements.”
The City ordinance requires crisis pregnancy centers to post signs in the lobbies of their counseling centers, add extensive additional written language to their advertising materials, and to provide oral statements during both “in person” and telephonic conversations regarding the services offered by crisis pregnancy centers. The requirements apply only to crisis pregnancy centers and not to abortion businesses like Planned Parenthood.
The ACLJ represents The Evergreen Association (Expectant Mother Care Pregnancy Centers-EMC Frontline Pregnancy Centers) and Life Center of New York (AAA Pregnancy Problems Center) which operate a total of 13 crisis pregnancy centers across New York City. In its lawsuit, the ACLJ 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 Plaintiffs by the First and Fourteenth Amendments to the U.S. Constitution, as well as the New York Constitution.
Similar ordinances were recently struck down as unconstitutional by federal judges in Baltimore and Montgomery County, Maryland. Pregnancy centers in Austin, Texas are fighting a law there as well.
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 also 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.”
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.”
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.”
Bloomberg signed Bill 371-A into law and said, “It may be unconstitutional, but I am going to sign it anyway.”
In January 2011, 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 2011, 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.