Judge Rules on CPC’s charge that SF city council targeted “First Resort”
By Dave Andrusko
Word of caution: I just this afternoon learned that a decision had come down in the case of “First Resort,” a San Francisco-area pro-life pregnancy counseling and state licensed health clinic that had been targeted by the San Francisco Board of Supervisors.
First Resort took the city to court last year, charging that the “Pregnancy Information Disclosure and Protection Ordinance” was a “deeply flawed” ordinance that violates its constitutionally protected rights to free speech.
Pro-abortionists are gleeful, claiming that Judge Saundra Brown Armstrong’s decision was an unmitigated triumph. “San Francisco is not the first city to attempt to prevent CPCs from spreading misinformation, but it is the first to succeed,” gloated one pro-abortion site. “Laws attempting to regulate CPCs have been struck down in other cities like Baltimore and New York City.”
Without the decision in hand–I’m trying to get it–it’s impossible to know how much is truth and how much is spin. The stories triumphantly posted by pro-abortionists apparently did not have the decision either, relying instead on one story filed by Courthouse News, which is not the model of clarity.
The story, written by Chris Marshall, focuses the bulk of its attention on just one of First Resort’s assertions–that the ordinance is unconstitutionally vague—which clearly Judge Armstrong rejected. But at the same time, the story notes almost in passing, “The court agreed with First Resort that the complaint alleges the ordinance burdens First Resorts ‘fundamental rights.’”
Since that is hugely important—and a key reason other judges have thrown these ordinances out–you would expect Marshall to have amplified what Judge Armstrong said.
Passed by the San Francisco Board of Supervisors in October 2011, the “Pregnancy Information Disclosure and Protection Ordinance” covers only two pregnancy centers–Alpha Pregnancy Center and the much larger First Resort. It purports to protect women “seeking information regarding options to terminate a pregnancy” from receiving “untrue or misleading” information. The Ordinance was signed into law by Mayor Ed Lee in early November.
First Resort’s lawsuit fairly steams with indignation at what it asserts is a blatant example of viewpoint discrimination intended to “chill” First Resort’s right to free speech–an ordinance bereft of legislative findings or underlying evidence to support the claim that First Resort is misleading women or providing them with false evidence.
“The purpose of the Ordinance is to destroy or minimize First Resort’s ability to communicate with women who are or may be considering abortion,” the lawsuit flatly charged.
First Resort’s press response was measured, clearly highlighting the best parts of Judge Armstrong’s decision. The press release says
First Resort is encouraged by the Judge’s recent rulings on First Resort’s complaint. Our lawyers are reviewing those rulings, and working diligently towards an appropriate response.
First Resort continues to conduct all its work in strict compliance with applicable laws. A year after the San Francisco Board of Supervisors passed this ordinance targeting pregnancy resource centers, First Resort continues to provide women in San Francisco with free, quality licensed medical and counseling care.
It is heartening and important, as the Court noted, that the San Francisco City Attorney is not attempting to enforce this ordinance against First Resort or allege in court that First Resort has violated the ordinance in any manner.
In a further positive outcome, the Court refused to dismiss First Resort’s claim that the ordinance violates the Equal Protection Clause of the U.S. Constitution by unfairly favoring one viewpoint over another.
While the court—passing for the first time on this ordinance’s wording—granted the City’s motion to dismiss First Resort’s claim that the ordinance is unconstitutionally vague, it is important to take note that the court addressed First Resort’s vagueness claim by clarifying several dubious passages in the ordinance. The court’s interpretations consistently narrow the scope of the ordinance and reduce the dangers of inappropriate application of the ordinance. While a ruling rejecting the City’s motion on constitutional grounds may have been preferred, we are pleased that the court is substantially limiting the government’s ability to misuse this ordinance against pregnancy resource centers.
Our legal representatives are working on the appropriate response to the court’s order, addressing the technical concerns the court expressed as to the preemption and other claims.
First Resort will move expeditiously towards a final resolution of this matter, including the free-speech issues that were left untouched by the City’s motion, and we continue to expect a favorable outcome for our clinics and the women we serve.
While the board of supervisors was eager to go after First Resort, back in September 2011, there was some dissent. Two supervisors said no record of deception has been demonstrated. Their concern was no doubt in part a reflection of their briefing in which supervisors were told “that in order to mount a strong defense against a likely legal challenge, the city would have to produce a record of false and misleading advertising,” according to the San Francisco Examiner’s Dan Schreiber.
“The best legislative backers could come up with were reviews on Yelp and a search on Google when people plugged in the phrase ‘abortions in San Francisco’ and Plunkett’s First Resort organization popped up as the second link,” the Examiner reported. “This legislative record here, to me, is empty,” Supervisor Sean Elsbernd said.
In the end there was only one dissenter, Elsbernd. At the October 18, 2011, meeting, he said, “There has been no testimony, no documentation, no affidavits of any woman seeking service who has been misled. There is nothing in the record documenting that.” He added, “What I hear we are doing today is passing a solution in search of a problem.”
Elsbernd also pointed to a series of cities where similar laws were struck down or are in the process of being challenged. He also told the Chronicle, “We knew there would be litigation over this… but the City Attorney should defend the ordinance.”