By Dave Andrusko
Even though the ruling came down last week, I just found out about it late this afternoon, so full coverage will have to await digesting the legal opinion from the 4th U.S. Circuit Court of Appeals.
Last Wednesday the full 4th Circuit ruled that the city of Baltimore should have a second bite at the apple—“an opportunity to pursue full discovery, a chance to ask questions and gain more information, in a lawsuit brought against it by a Baltimore pregnancy help center and St. Brigid Catholic Church in Canton,” according to the Catholic Review, the newspaper of the Archdiocese of Baltimore.
National Right to Life News Today has reported on this case—and others like it—numerous times. Inspired by NARAL, various city and counties have launched attacks on pregnancy help centers with very limited success.
In this instance, a 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 2012, a 4th circuit panel upheld the January 2012 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.”
Last August the full 12-member 4th circuit appeals court agreed to hear an appeal, which it did in December. “Four of the judges found the ruling to be unconstitutional,” wrote The Catholic Review’s Maria Wiering. “The other eight judges, while ruling that Baltimore City deserved full discovery, did not make a judgment on the constitutionality of the ordinance.”
As a result the case has been sent back to U.S. District Court TO allow both sides to present more information. “The appeals court opinion offered no ‘comment on how this matter ultimately should be resolved,’” according to Ian Duncan and Tricia Bishop of the Baltimore Sun.
In a July 3 statement, Archbishop William E. Lori, one of the plaintiffs, said, “We are confident that today’s procedural ruling by the U.S. Court of Appeals for the Fourth Circuit will eventually lead to a ruling that affirms pregnant women in need of assistance and the First Amendment principles we treasure in a free society. He added, “We continue to believe the ordinance is based solely on the centers’ moral and religious beliefs.”
According to the Sun, “Thomas J. Schetelich, chairman of the board for the Greater Baltimore Center for Pregnancy Concerns, the clinic at the center of the suit, said the debate will continue. ‘We were disappointed but not discouraged by the decision, which was based entirely on procedural grounds.’”