A pregnancy center in San Francisco has sued the city over a new law it adopted that would target pregnancy centers in the city that help women find abortion alternatives.
Supervisor Malia Cohen and City Attorney Dennis Herrera spent months on an ordinance that would require the pro-woman centers to disclose whether they are abortion alternatives agencies that, supposedly, don’t provide comprehensive health care. The pair have made erroneous claims that the centers are engaging in misleading counseling and advertising.
They say the legislation came about because of complaints about First Resort, a pregnancy centers that operates locations in San Francisco, Oakland and surrounding areas. The San Francisco Chronicle indicates Herrera sent a letter to First Resort claiming that its advertising methods are misleading by making women believe it does abortions, because they try to compete with abortion centers in purchase links at Google for searches on abortion.
The board approved the proposal on a 10-1 vote and Supervisor Malia Cohen, chief sponsor of the legislation, told the San Francisco Chronicle that the bill is intended to “protect consumers of pregnancy-related services by prohibiting limited-service pregnancy centers from knowingly disseminating false or misleading advertising information about the services they provide.”
Supervisor Sean Elsbernd was the lone vote against the proposal and he said abortion backers presented no evidence showing women are misled.
“There has been no testimony, no documentation, no affidavits of any woman seeking service who has been misled. There is nothing in the record documenting that,” he said, according to the newspaper. “What I hear we are doing today is passing a solution in search of a problem.”
Now, First Resort has filed suit in U.S. District Court challenging the constitutionality of the measure.
First Resort called the San Francisco law “an unconstitutional ordinance” with “intimidating enforcement provisions” resulting in “an impermissible chilling effect on free speech, in violation of the First Amendment.”
“Under the ordinance the City Attorney is authorized unilaterally to determine what speech, or even what failure to speak, is ‘untrue or misleading, whether by statement or omission,’ and then issue a cease and desist letter; file a lawsuit for injunctive relief; seek possibly Draconian fines and penalties; and collect attorney’s fees and costs no matter how trivial the alleged violations may have been,” its statement said.
“The obvious purpose of these provisions is to allow the City to intimidate small organizations or groups of citizens into speaking only in ways ‘approved’ by the City,” said First Resort. “In light of public pronouncements by the City Attorney’s office and individual members of the Board of Supervisors, it is clear the risk of bias and discrimination in enforcement is very high. This has forced First Resort to take legal action to protect their ongoing work and the organization,” it continued.
“The law purports to protect women ‘seeking information regarding options to terminate a pregnancy’ from receiving ‘untrue or misleading’ information from providers of medical or counseling services, yet it expressly excludes from its liability and enforcement provisions all pregnancy centers, including the City itself, that ‘provide or provide referrals to clients for… abortions,” it added. “Thus, by design, it would regulate and restrict speech only by persons and organizations the City regards as having ‘anti-abortion’ or pro-life views, exempting the rest.”
“The Board of Supervisors was informed that the ordinance was deeply flawed, but a majority of these local elected officials chose to overlook the flaws brought to their attention by our legal counsel and presumably raised in the cautionary memo prepared by their own City Attorney,” First Resort CEO Shari Plunkett continued. “This ordinance is the result of a private political organization using the power of government to attack First Resort, based on what the government inaccurately perceives to be First Resort’s viewpoints on some of the major issues of our time. It was crafted to target one or two specific organizations and carefully shelter from its scope all groups whose viewpoints the City agrees with. The ordinance is explicitly viewpoint-based repression of free speech on a subject that is at the heart of First Amendment protections. Thus, we believe the ordinance is a blatant violation of the First Amendment to the Constitution of the United States of America. We regret we were not treated fairly in City Hall, and now seek remedy in the courts.”
Chastidy Ronan, executive director of Alpha Pregnancy Center in San Francisco, also commented, saying, “As the only other organization affected by this ill-advised ordinance, we commend First Resort for their willingness to stand up for principled, constitutional protections for all.”
She added: “This law attacks one group of pregnancy resource providers, but not another group with a competing message. This creates an uneven playing field for free speech and is patently unfair. We will watch closely as the wheels of justice turn.”
During committee consideration of the measure, two members of the Board of Supervisors’ City Operations and Neighborhood Services Committee, Supervisors John Avalos and Sean Elsbernd, pointed out how city attorneys have indicated they would have to produce evidence showing the pregnancy centers are misleading in order for the bill to stand up in court. They said the city has produced no such evidence of any false or misleading advertising. “This legislative record here, to me, is empty,” Elsbernd said, according to the Chronicle.
First Resort, on its web site, makes no claim, as Herrera charges, that it does abortions.
“First Resort is a Pregnancy Counseling Women’s Health Clinic. We provide counseling and medical care to women who are making decisions about unplanned pregnancies,” it says. “First Resort’s services are free of charge. Thanks to financial donations; we have been able to provide quality care to our clients at no charge for 25 years! Our focus is on helping women make healthy, well-informed choices in line with their own beliefs and values.”
“We believe in the empowerment of women through informed choices, confidentially, as they weigh all their options. Only you can decide what is best for you. Talk to our counselors for support and empower yourself,” it adds.
First Resort clinics operate under the supervision of two board certified, California-licensed OB-GYN medical doctors. First Resort provides access to an on-site Registered Nurse and trained counselors during all hours of operation in each of its facilities. First Resort offices are staffed by licensed registered nurses 100% of the time during operating hours.
Previously, Cohen admitted to the newspaper that she is working with the California affiliate of NARAL, a national pro-abortion organization, to develop the legislation that would be similar to laws approved in New York City and Baltimore, Maryland and proposed in Austin, Texas. Those measures require pregnancy centers to post misleading signs claiming they are not legitimate medical centers and to tell women that they do not do abortions nor refer for them. City officials in those locations did not approve of corresponding legislation requiring abortion businesses to disclose they do not provide pregnancy resources or support.
The law Baltimore approved attacking pregnancy centers there has already come under criticism and, in January, a federal judge struck down the measure after a lawsuit brought by the Archdiocese of Baltimore. Under the law, a non-compliant pregnancy center may also be subject to a criminal misdemeanor charge under the law and, if convicted, the pregnancy center is subject to a fine of $200, plus $50 for each day the offense continues. The non-payment of fines could result in the pregnancy center being held in contempt of court.
Judge Garbis in Baltimore granted summary judgment finding the anti-pregnancy center law is viewpoint-based and impermissible 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).
The city of Baltimore and officials with the pro-abortion legal group Center for Reproductive Rights appealed the judge’s decision but pro-life law firms have filed legal papers supporting it.
Matt Bowman of the Alliance Defense Fund says Judge Garbis’ ruling was a correct one.
“The judge ruled that the law’s attempt to burden speech unconstitutionally discriminated against noncommercial, unlicensed speech on the explicit basis that it came from a perspective disfavoring abortion,” he said, calling it a “monumental decision protecting free speech and women’s health.”
“Under the Ordinance, such an organization – referred to as a “limited-service pregnancy center” – must post a conspicuous sign in its waiting room notifying its clients that the center “does not provide or make referral for abortion or birth-control services,’” the judge wrote. “As discussed herein, the Court holds that the Ordinance violates the Freedom of Speech Clause of Article I of the Constitution of the United States and is unenforceable.”
“Whether a provider of pregnancy-related services is “pro-life” or “prochoice,” it is for the provider – not the Government – to decide when and how to discuss abortion and birth-control methods. The Government cannot, consistent with the First Amendment, require a “pro-life” pregnancy-related service center to post a sign as would be required by the Ordinance,” Judge Garbis added.
The New York City law faces two lawsuits.
ACTION: Contact the San Francisco Board of Supervisors at https://www.sfbos.org and tell members you oppose their approval of the law to target pregnancy centers. Contact Hererra at https://www.sfcityattorney.org/index.aspx?page=9