By Dave Andrusko
On Monday we wrote about an important decision—important on many grounds—rendered by a three-judge panel of the 4th U.S. Circuit Court of Appeals. The panel overturned ordinances passed by the Montgomery County Council and the Baltimore City Council in 2009-10 attacking the free speech rights of pregnancy centers. These assaults are led by NARAL Pro-Choice America whose fingerprints were everywhere and of which NARAL is proud to boast.
The Montgomery ordinances required what were described as “limited service pregnancy centers” to post notices that they had no licensed medical staff and advising women to find “a licensed health care provider.”
Writing for himself and Judge G. Steven Agee, Judge Paul V. Niemeyer said, “The government-mandated statement … suggests to potential clients that the center is not to be trusted and that a pregnancy center’s services, like religious counseling or job placement assistance, will usually be inferior to those offered by medical professionals.”
The county, Niemeyer wrote, “is entitled to believe that pregnancy is first and foremost a medical condition, but it may not compel unwilling speakers to express that view.” Pregnancy centers that did not provide or refer for abortions were being, he concluded, are being “singled out for disfavored treatment.”
The Baltimore City Council ordinance was even more odious. Its law required pregnancy centers to display signs stating they do not offer abortions or birth control. The Council offered a rationale favored by NARAL: that such centers had provided misleading information and the Council had a vested interest in protecting the public health by ensuring honest advertising of services.
It is what Judge Niemeyer wrote about the Baltimore City Council that I’d like to add more detail to today.
There is a reason that judges have already reamed these laws elsewhere: they are slip-shod, at best, and are thinly veiled—very thinly veiled—attempts to drive women-helping centers out of business.
The trick, for pro-abortionists, is to turn what is obviously First Amendment free speech, which is heavily guarded by the courts, into “commercial speech,” which enjoys lesser protection. And when that doesn’t fly, come up with some cockamamie justification for regulating free speech anyway.
In upholding a lower court decision, Judge Niemeyer made short work of this nonsense. First, he wrote, the law is compelling the Greater Baltimore Center for Pregnancy Concerns (henceforth referred to as “Pregnancy Center”) to “speak a message that the speaker would not otherwise make.”
And by requiring that a sign be posted that the Pregnancy Center “does not provide or make referrals for abortion or birth control services,” Niemeyer wrote, the City is requiring the Pregnancy Center “to tell pregnant women that abortions are available elsewhere as a morally acceptable alternative, contrary to the moral and religious beliefs of the Pregnancy Center.”
Getting back to the commercial speech argument, Niemeyer notes the Pregnancy Center doesn’t charge—it “provide free information about pregnancy, abortion, and birth control as informed by a religious and political belief,” traditionally the kind of speech that “has routine been afforded the highest levels of First Amendment protections.”
So what’s left for Baltimore to argue? Accept (as an alternative defense) that what the Pregnancy Center is doing constitutes highly protected speech but contend that its law is “narrowly tailored to promote a compelling Government interest.” The City maintained, Niemeyer wrote, that “it has an interest in countering what it maintains are the ‘deceptive business practices’ of certain pregnancy centers.”
This is hugely important because it is the sledgehammer argument: CPCs, women-helping centers are “deceiving women.” But it simply wasn’t true, as Judge Niemeyer details, almost indignantly.
“Here, the record establishes, at most, only isolated instances of misconduct by pregnancy centers generally, and, as the City concedes, none by the [Greater Baltimore Center for Pregnancy Concerns] 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 of ‘stories about harassment.’”
He doesn’t say it, but I will: they just make this stuff up, find a compliant city or county governing body and make life miserable for women-helping centers.
There are other challenges to similar laws working their way through the legal pipeline. One is from Austin, Texas, another from New York City, and a third from San Francisco.
Officials in both Montgomery County and Baltimore City are, of course, free to appeal the decision to the U.S. Supreme Court.
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