N.Y. Court Hands Pro-Life Centers Mixed Ruling
Substantial Victory Leaves ‘Disturbing Loophole’ for City Hall
NEW YORK — Pro-life pregnancy centers were handed a mixed bag in a recent decision by a federal appeals court that reinstates some portions of a New York City disclosure law, while leaving the rest struck down.
The federal appeals court in New York agreed mostly with a lower-court judge’s finding that a disclosure law passed by the New York City Council and aimed at crisis-pregnancy centers was unconstitutional. However, it did reinstate a portion of that law, which would require crisis-pregnancy centers to disclose whether they have a licensed medical professional on staff.
"I’m elated that the First Amendment was upheld in the forced description that the city of New York demanded of us," said Chris Slattery, president of Expectant Mother Care-EMC Frontline Pregnancy Centers. "We now have the freedom to describe ourselves as we wish."
Local Law 17, which was passed in March 2011, required crisis-pregnancy centers (CPCs) to make a number of written and oral disclosures about their services and practices, both over the telephone and on signs at entrances and waiting rooms and on advertisements.
The entire appeals court struck down city provisions that forced CPCs to declare whether or not they "provide or provide referrals for abortion," "emergency contraception" or "prenatal care" among their services. The court also said forcing CPCs to state the city health department’s recommendation that women who are or may be pregnant should consult with a licensed provider was unlawful, compelled government speech.
But the court divided 2 to 1 over the part of the law that requires CPCs to disclose whether they have a licensed medical professional on staff. Here, the law defines a "pregnancy-services center" as a facility that provides services to women who are or may be pregnant that either offers ultrasounds, sonograms and prenatal care or "has the appearance of a licensed medical facility."
The appeals court upheld the law’s "status disclosure" about whether CPCs had a medical professional on staff on the basis that striking that part down "would deprive the city of its ability to protect the health of its citizens and combat consumer deception in even the most minimal way."
The court referenced the testimony gathered by the New York City Council, which included representatives from Planned Parenthood, who complained that CPCs were intentionally located near their facilities, and from the Dr. Emily Women’s Health Center that said some CPCs would park a vehicle with a mobile ultrasound in front of the abortion center. Both complained that abortion-minded women had mistaken CPCs for their facilities. Some others complained that they had been intentionally misled by CPC workers in order to make access to an abortion more difficult.
But Judge Richard Wesley in his dissent said that, while the city does have an interest "in preventing impostors from posing as health-care workers," it does not have a right to lump in with them "all those who, for faith-based reasons, think that abortion is not the right choice."
He called the law "a bureaucrat’s dream," because the law does not set forth an exclusive set of criteria that determines how city officials define a pregnancy-services center.
"It contains a deliberately ambiguous set of standards guiding its application, thereby providing a blank check to New York City officials to harass or threaten legitimate activity," he said.
Attorneys representing the crisis-pregnancy centers are mulling over legal options. Attorneys could decide to ask the full 2nd Circuit to review the case or they could petition the U.S. Supreme Court to pass judgment on the case.
Matt Bowman, senior legal counsel with the Alliance Defending Freedom, which is involved in the case, said the district judge was right to throw out the whole law because it was too vague and said ADF was seriously considering an appeal.
"The appeals court rightly affirmed that the city cannot force pregnancy centers to communicate some city-crafted messages that encourage women to go elsewhere," said Bowman, "but the court left one provision in place that still does that."
He added that the appeals-court panel also "did not provide any clarity as to whom it applies and when the city’s language must be recited."
"The labeling of our medical services to their liking is dangerous, because it gives total political power to the mayor to punish us," Slattery charged.
He said that the surviving provision could allow the city’s department of consumer affairs to decide that "simply providing pregnancy self-test kits" was enough to give a group the "appearance of a medical facility" and force it to follow the labeling required for a "pregnancy-services center" (PSC).
"The criteria are completely under the unbridled discretion of the Department of Consumer Affairs," he said.
He noted that if the city determined an organization serving pregnant women without referring for abortion was a PSC in violation of its ordinance, it could impose a crippling fine of $2,500.
Slattery said it would have been understandable if the health department had a code applied "across the industry" requiring truth-in-labeling medical services.
"This is clearly a political agenda that targets us for partial-viewpoint discrimination," he said. "So we’re disturbed that they have a legal loophole to go after us with."
Still, Slattery said the decision overall is a victory for CPCs and a defeat for the politicians at New York City Hall: "They wanted to turn off and turn away women from our centers: to steer abortion-minded women right into the laps of the abortionists."
"We know this case will have national implications," he said, citing efforts to restrict the speech of pregnancy centers at the local, state and federal level. But the next move, Slattery said, will depend on how the city reacts to the decision.
He said, "Right now, we’re waiting to see what the city is going to do. We just don’t know yet."
- Feb. 9-Feb. 22, 2014