City can't tell religious "pregnancy centers" what to say

A federal judge in New York last week blocked a New York City ordinance that was designed to force religious “pregnancy centers” to make certain disclosures about their services after the judge found that the centers would likely succeed with arguments that the law conflicts with the First Amendment.

District Judge William H. Pauley III of the Southern District of New York issued an injunction on Wednesday preventing the new ordinance from going into effect while litigation proceeds on the issue. The ordinance was supposed to take effect on Thursday.

“Here, Plaintiffs have demonstrated that [the ordinance] will compel them to speak certain messages or face significant fines and/or closure of their facilities,” Pauley said in his opinion. “This is unquestionably a direct limitation on speech.”

The city plans to appeal the judge’s ruling. In a statement issued after the ruling, Council Speaker Christine Quinn said the decision means “that pregnancy services centers can continue deceiving women who seek their services. Equally troubling is that the centers will not be required to keep confidential the information collected from women who visit them.”

The ordinance, Local Law 17, targeted certain pregnancy service centers in the city. The City Council said these centers engage in deceptive practices by “misleading consumers,” and that these practices “can impede and/or delay consumers’ access to reproductive health services.” According the court, the centers are grounded in the plaintiffs' opposition to abortion and emergency contraception. The centers offer various pregnancy-related services, such as pregnancy testing, ultrasounds and counseling.

The ordinance would require such centers to post signs near their entrances saying the New York City Department of Health and Mental Hygiene encourages women who are or who may be pregnant to consult with a licensed medical provider. The signs would be required to specify whether the center has a “licensed medical provider on staff who provides or directly supervises the provision of all of the services” at the facility, and whether it provides referrals for abortion, emergency contraception and prenatal care.

The center would need to provide the same information in any advertisement promoting the center’s services and orally when a client or prospective client requests abortion services, emergency contraception or prenatal care.

Fines would range from between $200 and $1000 for the first violation, to $500 to $2000 for each additional violation. The law also would authorize the Commissioner of the Department of Consumer Affairs to “seal” any facility for five days if it has been found, after notice and a hearing, to have violated the ordinance on three or more separate occasions within two years.

In issuing the injunction, Pauley held that there would likely be irreparable harm to the plaintiffs in the absence of the injunction and that they were likely to succeed on the merits. He said the Supreme Court has made clear that “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”

He also said the plaintiffs are likely to succeed in their case. He said the law needs to be subject to strict scrutiny because it requires the plaintiffs to provide a specific message. In order to overcome that scrutiny, the City Council would have to show that the law is narrowly tailored to serve a compelling government interest.

The city argued that strict scrutiny did not apply because the speech would be “commercial speech,” which is entitled to less First Amendment protection. The city said the speech qualified as commercial speech because the centers are advertising goods and services, such as diapers, clothing, counseling and pregnancy testing, that have commercial value, and the plaintiffs receive something in value for those goods and services, “namely, ‘the opportunity to advocate against abortion and either delay or prevent the decision to terminate a pregnancy.’”

But Pauley did not buy the city’s arguments.

“If speech becomes commercial speech merely through the offer of a valuable good or service, then ‘any house of worship offering their congregants sacramental wine, communion wafers, prayer beads, or other objects with commercial value, would find their accompanying speech subject to diminished constitutional protection,’” he said, citing a recent Maryland case. "Adoption of [the city’s] argument would represent a breathtaking expansion of the commercial speech doctrine.”

The city also tried to argue that the speech was “commercial speech” because the clinics “are provided an audience to whom they can espouse their beliefs,” an argument Pauley said is “particularly offensive to free speech principles.”

“Under such a view, flyers for political rallies, religious literature promoting church attendance, or similar forms of expression would constitute commercial speech merely because they assemble listeners for the speaker," he said.

Once Pauley applied the “strict scrutiny” test, he said the law would not survive a constitutional challenge.

He said that he didn’t need to decide whether there was compelling government interest because the law was not narrowly tailored. He did recognize that “the prevention of deception related to reproductive health care is of paramount importance.”

But he said the law was over-inclusive because the advertising was not required merely for those clinics using deceptive practices, but all clinics. He said the law would force the plaintiffs to increase their advertising costs by buying more print space or airtime, and it will “alter the tenor of [the clinics’] advertising by drowning their intended message in the City’s preferred admonitions.”

He also said the statute gives too much authority to the commissioner to decide which clinics are subject to these disclosure requirements because the criteria defining the clinics are too vague and could lead to discriminatory enforcement.

Pauley pointed to less restrictive options the city could try to accomplish its goals, such as using anti-fraud statutes to go after clinics that deceive women, or posting its own signs on public property outside of these clinics.