Austin, Texas Continues Attacking Pregnancy Centers

State   |   Steven Ertelt   |   Jan 30, 2012   |   1:51PM   |   Austin, TX

City officials in Austin, Texas are at it again — repealing one ordinance attacking pregnancy centers in the Texas state capital and replacing it with another one that is just as problematic.

Austin is one of a handful of cities to pass ordinances attacking pregnancy centers and the original law the city approved faced a lawsuit seeking to overturn the law in court. Austin city officials passed an ordinance that forces pro-life pregnancy centers to post signs declaring that they do not provide abortions and other services. Centers that do not post the signs face stiff financial penalties. The city did not pass any law forcing abortion business to post signs saying they do not provide comprehensive support for pregnant women seeking non-abortion support and medical care.

The first offense is punishable by a minimum $250 fine; a minimum fine of $350 is issued for the second offense and a minimum $450 fine for the third. The fines only apply to individuals or organizations that primarily provide counseling information about pregnancy services or options. The ordinance does not require centers performing or referring for abortions to post any kind of signs about services that they do not offer.

On Thursday, the Austin City Council repealed the ordinance and replaced it with a new one that omits “abortion” and “birth control” from the signs but requires pregnancy centers to certify whether they offer medical services under the direction of a licensed health care provider.

Attorneys for the centers said Thursday that the new wording doesn’t overcome the objections and they plan to proceed with the lawsuit.

Attorneys with Jubilee Campaign’s Law of Life Project and two other pro-life legal defense organizations announced this morning that they have delivered a letter to the City of Austin’s legal counsel urging the City at its next meeting tomorrow to repeal Austin City Code Chapter 10-9 and withdraw proposed Chapter 10-10 because both abridge Austin Life Care’s constitutional rights to freedom of speech, association and religious free exercise under both state and federal law.

The letter reads: “We are hopeful that you will concur with us that Chapter 10-9 ought to be repealed and proposed Chapter 10-10 withdrawn as unconstitutional and, therefore, unenforceable against any covered entity located in Austin, including our client. Should your client not do so we will assume, until advised otherwise, that your client simply wishes to resume the pending litigation and risk the substantial ‘further litigation costs’ such an unfortunate and unconstitutional decision necessarily entails.”

Samuel Casey, General Counsel of the Jubilee Campaign’s Law of Life Project, said, “Having hand-delivered two demand letters to the City on April 22 and September 16 asking it to stand down from enforcing its unconstitutional ordinance and being completely stone-walled, in the face of our multiple requests for some reply, we had no choice now but to file our Verified Complaint seeking judicial relief, including a preliminary injunction.”

“When we did so, the City’s lawyers agreed not to enforce the unconstitutional ordinance to give the City time to repeal it. We are glad that the City’s Legal Department has now advised the City to do so to ‘avoid further litigation expense.’ We are encouraging the City to do just that and not to make matters worse by simply adopting an even more unconstitutional ordinance in its place as Council Spelman and Martinez are proposing,” he added.

Austin LifeCare’s Executive Director, Pam Cobern, said: “Austin LifeCare has been serving women in Central Texas with excellence and without charge for more than 27 years. Our communications are clear, honest and appropriate.”

Cobern added:  “We provide all clients with full disclosure of the types of ‘life-affirming’ services we provide starting with the ‘about us’ and ‘services’ tabs on our web site. Every person who mentions abortion while calling Austin LifeCare for an appointment is told we neither perform nor refer for abortion. Before she can meet with a counselor or nurse, the woman signs a statement that states ‘the Center does not perform or refer for abortions.’ In addition, there are framed ‘Commitment of Care’ statements reiterating this fact displayed prominently in the waiting area. Our clients receive medically accurate and unbiased information, including limited ultrasound services under direct physician supervision, to help them make their own decision, not one imposed by someone else’s agenda. Austin LifeCare trusts women, tells them the truth, and treats them with dignity and respect while respecting their right to choose in the most fully informed fashion they request.”

On April 8, 2010, after no more than a 30 minute hearing wherein its rules were waived and discussion was limited by the presiding officer to “15 minutes per side,” and no evidence of any unlawfully deceptive or misleading conduct by LifeCare was presented, Austin City Council passed Chapter 10-9 to restrict the operations of what it calls “Limited Service Pregnancy Centers,” facilities that help pregnant women carry their babies to term without offering abortions, referrals to abortionists, or so-called “comprehensive birth control services.”

Under the ordinance, centers such as Austin LifeCare are required to “prominently display, at the entrance of the center, two black and white signs, one in English and one in Spanish, that state as follows: ‘This center does not provide abortions or refer to abortion providers. This center does not provide or refer to providers of U.S. Food and Drug Administration approved birth control drugs and medical devices.'”

Attorneys with the Alliance Defense Fund are also part of the lawsuit.

“Pregnancy centers, which offer real help and hope to women, shouldn’t be punished by political allies of the abortion industry,” said ADF Legal Counsel Matt Bowman. “Attacks such as this ordinance are an ideologically motivated attempt to distract from the growing national scandals in the abortion industry. For years, abortionists have preyed on women and girls to generate profits. Now, pro-abortion politicians are trying to give women fewer choices.”

The lawsuit may be successful if only because a similar Baltimore law was struck down in 2011. 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).

In the Baltimore case 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.

“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 over its law that is like the Austin statute.