4th Circuit: Required posting by pregnancy centers is unconstitutional compelled speech

Howard Friedman, Religion Clause

In a 2-1 decision in Greater Baltimore Center for Pregnancy Concerns v. Mayor and City Council of Baltimore, (4th Cir., June 27, 2012), the U.S. 4th Circuit Court of Appeals yesterday struck down a Baltimore ordinance that requires “limited-service pregnancy centers” to post signs announcing that that they do not provide or make referrals for abortion or birth control services. The majority agreed with plaintiff, a Catholic  pregnancy center, that the law compels it to speak to clients and potential clients in a manner that it would not otherwise do. The majority found that the city has not shown a compelling interest for infringing on the Center’s non-commercial speech rights in this manner. The majority explained:

Here, the record establishes, at most, only isolated instances of misconduct by pregnancy centers generally, and, as the City concedes, none by the Pregnancy Center itself. Indeed, the record contains no evidence that any woman has been misled into believing that any pregnancy center subject to Ordinance 09-252 was a medical clinic or that a woman in Baltimore delayed seeking medical services because of such a misconception. The City instead cites allegations of deceptive practices occurring in other locations or second-hand reports….

Judge King dissenting called the majority’s conclusion “indefensible.” He argued:

Rushing to summary judgment, the court subverted the Federal Rules of Civil Procedure … by … denying the City essential discovery, refusing to view in the City’s favor what evidence there is, and making untoward findings of fact, often premised on nothing more than the court’s own supposition.

Defending the city, the dissent said:

The evidence relied on by the City Council revealed that limited-service pregnancy centers were using questionable tactics to delay women from accessing abortions. Such tactics included counseling women to undergo pregnancy tests and sonograms that were scheduled weeks after their initial pregnancy center visit, and misinforming women about abortion services, including when abortions could be lawfully obtained. Such delays placed the health of women who decided to have abortions at risk….

Newsmax reports on the decision.