Civil Rights – Abortion Disclaimer Ordinance Violates First Amendment

The district court was correct to strike down a Baltimore ordinance requiring pregnancy centers that do not offer or refer for abortions to disclose that fact via waiting-room signage, the circuit court said.

The Greater Baltimore Center for Pregnancy Concerns – a non-profit organization operating inside a Carholic church and affiliated with national pro-life organizations and – provides free goods and services to pregnant women, including counseling, Bible study, pregnancy tests, sonograms, prenatal vitamins, diapers, clothing, books, and education on child care, life skills, and abstinence. The Center does not provide or refer for abortions, as clearly stated in a pamphlet available in its waiting room. The Center’s advertisements include offers of “FREE Abortion Alternatives,” “Information about procedures and risks of abortion,” and “Post-Abortion Counseling & Education.”

Concerned that women seeking abortions may be misled into visiting pro-life centers and delaying abortion, the city enacted an ordinance requiring any “limited-service pregnancy center” – that is, any entity whose primary purpose is to provide pregnancy-related services but does not provide or refer for abortions or comprehensive birth control – to post a disclaimer in its waiting room notifying clients that it does not provide or make referral for abortion or birth-control services. The required signs must be conspicuously posted and easily readable in English and Spanish. The Center filed suit challenging the ordinance on, among other things, First Amendment grounds.

Heightened Scrutiny

As a threshold matter, the city is incorrect that review should proceed under a relatively relaxed level of scrutiny because the ordinance regulated commercial and/or professional speech. The Center provides its services without collecting remuneration of any kind. The Center’s advertisements do not transform its ideological and religious advocacy into commercial activity; in any event, the ordinance applies whether or not a pregnancy center advertises at all. Although governments can regulate professional speech, the Center has no paying clients and employs no one practicing a “profession” in the traditional sense contemplated by First Amendment jurisprudence.

Thus, review of the ordinance required “heightened scrutiny,” where compelled disclosures must be narrowly tailored to achieve a weighty government interest. This particular compelled disclosure raises serious constitutional concerns. The ordinance’s required disclaimer portrays abortion as one among a menu of morally equivalent choices, which is antithetical to the very moral, religious, and ideological reasons that the Center exists. This mission gives no license at all to lie to women, but it does provide some latitude in how to broach a sensitive topic. The Center currently explains its opposition to abortion in its waiting-room pamphlets, on its own terms. But the ordinance forces the Center to utter in its own waiting room words at odds with its foundational beliefs. Further, it compels speech only from pro-life pregnancy centers, not other pregnancy clinics that offer or refer for abortion. A speech edict aimed directly at those pregnancy clinics that do not provide or refer for abortions is neither viewpoint- nor content-neutral.

Governmental Interest

The city’s interests – which include preventing deceptive advertising and mitigating health risks that can accompany delays in the termination of a pregnancy – are plainly important. And where there is solid evidence of such dangers, courts will not hesitate to give government the deference it is due. But here, the city’s only support for its contention that women might be misled is a reported increase in phone calls to the Center’s hotline from “abortion-minded callers.” There is not a single example of a woman who entered the Center’s waiting room under the misimpression that she could obtain an abortion there, and none of the Center’s advocacy materials suggests that the Center would provide help or assistance in obtaining an abortion.

Not Narrowly Tailored

The city could also pursue its goals through less restrictive means. It could communicate the desired information to the public directly, or it could apply its existing laws against misleading advertising. The ordinance at issue demonstrates only a loose fit between the compelled disclosure and the purported ills identified by the government: The problem is said to be deceptive advertising, but the signage requirement applies to pregnancy centers without regard to whether their advertising is misleading or even whether they advertise at all.

The dangers of compelled speech in an area as ideologically sensitive and spiritually fraught as this one require that the government not overplay its hand. In the past, this court has struck down attempts to compel speech from abortion providers, and today it does the same with regard to compelling speech from abortion foes. It may be too much to hope that, despite their disagreement, pro-choice and pro-life advocates can respect each other’s dedication and principle. But, at least in this case, it is not too much to ask that they lay down the arms of compelled speech and wield only the tools of persuasion.

Affirmed.

Greater Baltimore Ctr. For Pregnancy Concerns Inc. v. Mayor & City Council of Baltimore, Case No. 16-2325, Jan. 5, 2018, 4th Cir. (Wilkinson). Suzanne Sangree for Appellants; David William Kinkopf for Appellee. Lawyers Weekly No. 001-007-18, 21 pp.