4th Circuit agrees to hear decision that protected free speech rights of pregnancy help centers in Baltimore

By Dave Andrusko

Judge Paul V. Niemeyer

Without explanation, the full U.S. Court of Appeals for the Fourth Circuit has granted a new hearing scheduled for December 6 in which the Court will review a decision that upheld the free speech rights of Baltimore pregnancy centers.  The order voids a June 2-1 decision in which an appeals court panel of the 4th Circuit overturned a 2010 ordinance inspired by NARAL Pro-Choice America.

The decision was lauded by the Center for Reproductive Rights which had joined the City of Baltimore to defend the ordinance against a lawsuit filed by the Archbishop of Baltimore, a local parish, and the Greater Baltimore Center for Pregnancy Concerns.

“We applaud the Fourth Circuit for reconsidering this important case and we will continue to fight alongside the City of Baltimore in its efforts to protect residents from the deceptive business practices of so-called crisis pregnancy centers,” said Stephanie Toti, senior staff attorney at the Center for Reproductive Rights (CRR).

In a statement, the Archdiocese of Baltimore noted that “Every judicial review of this onerous law has resulted in the same finding: namely, that it is a violation of these centers’ First Amendment rights, including freedom of speech and religious liberty.” The Archdiocese added, “We have every reason to think that another fair review of this ordinance will yield the same result.”

In its press release, the CRR noted that Baltimore was the first to pass such an ordinance, noting other cities including Austin, TX, New York City, and San Francisco have followed suit. What the press release didn’t mention was that the New York City ordinance was thrown out and that the other two have been appealed.

The Baltimore City Council ordinance 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.

In June  the 4th circuit panel upheld the decision of U.S. District Judge Marvin J. Garbis. Writing for himself and Judge G. Steven Agee, Judge Paul V. Niemeyer addressed many of the justifications common to these thinly veiled attempts to drive women-helping centers out of business.

For example, the city of Baltimore tried 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 justification for regulating free speech anyway.

In upholding Judge Garbis, Judge Niemeyer made short work of that. 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 pivotal argument made to justify these attacks: 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.’”