By Dave Andrusko
My apologies for letting this important decision fall between the cracks.
Last week as the day was closing, we learned that U.S. District Judge Saundra Brown Armstrong of Oakland had upheld the “Pregnancy Information Disclosure and Protection Ordinance.” We wrote a short post, promising to get back to it late last week.
I just read Judge Armstrong’s decision and, honestly, I can’t figure out (a) what exactly it is that the board of supervisors is prohibiting and (b) what it was that First Resort (a woman-helping center) had done to violate the ordinance signed into law by Mayor Ed Lee in November 2011.
It purports to protect women “seeking information regarding options to terminate a pregnancy” from receiving “untrue or misleading” information.
I asked Mary Spaulding Balch, a lawyer who is the director of NRLC’s Department of State Legislation, if she could figure out what Judge Armstrong was saying. She told NRL News Today
The San Francisco decision started as a conclusion in search of a reason. Judge Armstrong knew what she wanted the result to be and so she threw every possible idea that she could think of in order to try to support her result.
The ordinance uses vague words to proscribe certain actions. But I don’t know what it is that the pregnancy center is doing which is “untrue or misleading.”
First Resort’s statement is very straight forward, informative, and true.
Just what conduct is punishable? What can the pregnancy center say or not say so as to not violate the law?
Constitutional law requires fair notice of what is punishable and what is not. Vague words result in arbitrary results and enforcement.
The “void for vagueness doctrine” helps prevent arbitrary enforcement of the laws. Judge Brown Armstrong failed to address the vagueness issue, but it seems apparent that the San Francisco ordinance’s use of terms that are extremely vague renders it unconstitutional.
As we have discussed in many previous stories, a key (perhaps the key) to the outcome of ordinances targeting women-helping centers is whether the court can somehow conclude that what a group–which charges its clients nothing— is engaging in is “commercial speech.” Commercial speech is not as highly protected as First Amendment speech.
And, sure enough, Judge Armstrong concluded that speech promoting First Resort’s free services is commercial speech.
First Resort issued a response last week which critiqued Judge Armstrong’s decision. Anyone involved in non-profit work that aids the poor should instantly be alarmed:
The judgment was based on the ruling that our organization was engaged in “commercial speech” primarily because our ability to attract clients to our state licensed medical clinics is important to our fundraising efforts. Based on this definition, a non-profit food pantry that raises funds based upon telling people how many hungry families they have served or a non-profit animal shelter that tells their supporters how many dogs and cats they rescued would be categorized as engaging in “commercial speech” and left without the protections of the First Amendment. This is damaging to any nonprofit organization that raises funds and tells supporters about the amount of services provided.
In other words, if First Resort—or any non-profit—asks for help so it can provide its services free of charge to the indigent, it’s engaged in “commercial speech.”
“As a result,” First Resort accurately observed, “these other organizations serving women in unintended pregnancies [abortion clinics, which are not covered by the ordinance] are held to a different and more lenient standard.”
Talk about Humpty Dumpty. ‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’
‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’
‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.’
Armstrong was also able to wiggle out of the obvious conclusion that the ordinance was an attack on a particular viewpoint. But how could it be otherwise when the speech of abortion providers is exempt from the ordinance?!
As of last week, First Resort was evaluating their appellate options.
“In the meantime, we will continue to maintain the highest standards of honesty and integrity, while providing much needed professional medical and emotional support to the women in San Francisco who find themselves in unintended pregnancies and are unsure of what to do.”