By Dave Andrusko
“First Resort,” a pro-life pregnancy counseling and state licensed health clinic, has filed suit in the United States District Court in San Francisco against a “deeply flawed” ordinance which First Resort alleges violates its constitutionally protected rights to free speech.
Passed by the San Francisco Board of Supervisors in October, the “Pregnancy Information Disclosure and Protection Ordinance” covers only two pregnancy centers–Alpha Pregnancy Center and the much larger First Resort—and 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.
The lawsuit fairly steams with indignation at what First Resort 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 charges.
In an overheated August 2 press release City Attorney Dennis Herrera claimed the Ordinance was necessary because “the delays these centers can cause interfere with women’s time-sensitive, constitutionally protected right to reproductive choice.”
But as First Resort noted in its lawsuit,“In approving the Ordinance, the Board neither received evidence that alleged advertising by a [Pregnancy Resource Center] had ever caused a woman to lose her ability to choose an abortion or any particular abortion procedure nor made legislative findings that such an event had ever occurred.” (In fact, according to the lawsuit, First Resort has safeguards in place to ensure there would be no delay.)
At the core of the legal complaint is who the Ordinance excludes from its liability and enforcement provisions—“all pregnancy centers, including the City of San Francisco itself,” that “provide or provide referrals to clients for…abortions.” Thus, by design, the Ordinance exempts all but persons and organizations the City regards as having “anti-abortion” or pro-life views.
The board of supervisors took this questionably step even though there was plenty of advice that they were on shaky legal ground.
Back in September 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 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. (See “City of Austin Agrees to Put Harassing Ordinance Against Austin LifeCare on Hold”)
Yesterday he told the Chronicle, “We knew there would be litigation over this… but the City Attorney should defend the ordinance.” However Elsbernd added, “I’ll wait until after the trial to say, ‘I told you so.'”
(For more about the case, see “San Francisco Pregnancy Care Centers Files Suit in San Francisco to Protect the Right to Free Speech.”
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