NYC Pro-Life Centers Gain Victory in Free-Speech Fight
A federal appeals court has agreed to stay a ruling that pro-life pregnancy-resource centers say would put them at a great disadvantage to the unregulated abortion industry.
NEW YORK — Pro-life pregnancy-resource centers gained an important victory in their fight to overturn a New York City disclosure law, which they say is aimed to put them out of business.
A federal appeals court in New York agreed April 7 not to enforce its ruling that allows New York City officials to require crisis-pregnancy centers to disclose whether they have a licensed medical professional on staff. The order allows pregnancy-resource centers (PRCs) to continue operating without the required disclosures while attorneys with the public interest firms Alliance Defending Freedom and American Center for Law and Justice (ACLJ) pursue their legal challenge to the U.S. Supreme Court.
“We’re trying to convince the U.S. Supreme Court to take the case,” said CeCe Heil, senior legal counsel for the ACLJ, which is representing the PRCs. “So we’re really grateful for the stay of the mandate. That is wonderful news for us.”
Heil said the stay from the 2nd Circuit Court of Appeals means the law is “in a holding pattern” until the U.S. Supreme Court makes a decision. Heil said that they could hear from the high court as soon as September, once all legal briefs in the case are submitted by both sides.
Back in January, a three-judge panel struck down on constitutional grounds most of Local Law 17, passed by the New York City Council in March 2011, which required PRCs 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 law does not apply to abortion facilities.
The panel unanimously ruled unconstitutional city provisions that forced PRCs 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 PRCs to state the city health department’s recommendation that women who are or may be pregnant should consult with a licensed medical provider was unlawful, compelled government speech.
However, the panel split 2-1 against the PRCs in its decision to reinstate the “status disclosure” law, which requires PRCs to disclose on clinic signage, advertizing and phone calls whether it has a medical professional on staff. The panel ruled that striking down that portion of Local Law 17 “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 PRCs were intentionally located near their facilities, and from the Dr. Emily Women’s Health Center, which said some PRCs would park a vehicle with a mobile ultrasound in front of the abortion facility. Both alleged that abortion-minded women had mistaken PRCs for their facilities. Some individuals complained they had been misled purposely by some PRC workers in order to make their access to an abortion more difficult.
Lack of Clarity
Attorneys representing the PRCs argue the law’s definition of a “pregnancy-services center” is too vague. It 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.”
Without a clear and specific definition of what a “licensed medical facility” means, pregnancy-resource centers are in a bind as to whether they fall under the disclosure or not, the ACLJ’s Heil said.
“Well, is a pregnancy test or keeping band-aids going to be considered medical supplies? What things are going to put us under that definition?” she said.
Another added factor, she added, was that the city’s requirement that the disclosure messages be both in English and Spanish meant that the cost for a PRC to advertize would be effectively doubled.
“We don’t even know what all the rules and regulations are going to be on the font sizes either,” she said.
Judge Richard Wesley agreed with the PRCs, arguing in his dissent that the law was unconstitutional because it does not have 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.
Chris Slattery, president of Expectant Mother Care-EMC Frontline Pregnancy Centers, which is represented by ACLJ in the case, said the Supreme Court’s ultimate decision on Local Law 17 is “make it or break it” for PRCs in New York City.
“We have a risk situation, where, clearly, this law that New York City passed is geared toward crippling the abortion-clinic competition,” he said.
Slattery noted the stark contradiction that, while NYC is determined to regulate PRCs, the state of New York has failed to pursue regular inspections of licensed abortion facilities.
“It’s a Gosnell-free pass to abortion clinics across the state,” he said, referring to Philadelphia abortionist Kermit Gosnell, who was convicted last year on three counts of murder and of other crimes committed at his abortion facility.
Those revelations of a lack of state inspections, made public by a New York Post investigation on April 7, were quickly followed by the resignation of State Health Commissioner Dr. Nirav Shah. The state’s health department also scrambled to announce that it was scheduling the inspection of 25 abortion-providing facilities under its supervision, at least eight of which never saw an inspector since 2000, and the rest were inspected either once or a few times since then.
“It’s clear that the politicians are using the laws to hurt us and help abortionists,” Slattery said.
Slattery also said that EMC is the only organization in lower New York that provides free on-site ultrasounds, and it has done so since 1986. The use of ultrasound has been considered a big factor in the decision of abortion-minded women to choose birth for their unborn children.
“We have legal arrangements for the remote supervision of ultrasound technicians,” he said, adding that, while state law does not require the immediate supervision of ultrasound technicians, “the city implies this is an issue.”
Slattery said that he had “guarded optimism” that the U.S. Supreme Court would take the case, and he asked for prayers.
“It’s not a slam dunk that they’ll take it, but there are some key issues of free speech and First Amendment rights here.”
Peter Jesserer Smith is a Register staff writer.