Unanimous 4th Circuit U.S. Court of Appeals refuses to “weaponize the means of government,” strikes down Baltimore law targeting pregnancy care centers

By Dave Andrusko

Judge J. Harvie Wilkinson III

Last Friday evening, NRL News Today provided a preliminary look at the unanimous 3-0 decision by the 6th Circuit U.S. Court of Appeals affirming a ruling by U.S. District Judge Marvin J. Garbis that a Baltimore ordinance targeting pregnancy care center violates the First Amendment. The decision upholding Greater Baltimore Center for Pregnancy Concerns is more than a victory for the free speech rights of a woman-helping center, although that is hugely important, particularly given that the Supreme Court is about to hear a related case.

In an opinion written by Judge J. Harvie Wilkinson III, and joined by Judges Allyson Duncan and G. Steven Agee, the appeals court panel ruled that the ordinance compelled a “politically and religiously motivated group to convey a message fundamentally at odds with its core belief and mission.”

As Judge Wilkinson explained in his 21-page decision, the city council and its then-mayor were “Concerned that women seeking abortions might be misled into visiting pro-life pregnancy centers and delay the abortion.” The Ordinance “requires any ‘limited service pregnancy center’ to post a disclaimer in its waiting room notifying clients that it ‘does not provide or make referral for abortion or birth-control services.’”

Violators would incur $150 daily fine for failing to post the mandated signs.

Judge Marvin J. Garbis

Wilkinson criticized the ordinance on a host of grounds. Starting with his most trenchant observation, he wrote, “After seven years of litigation and a 1,295-page record before us, the city does not identify a single example of a woman who entered the Greater Baltimore Center’s waiting room under the misimpression that she could obtain an abortion there.”

Wilkinson said of the ordinance, passed December 4, 2009, “The compelled speech at issue here raises particularly troubling First Amendment concerns. At bottom, the disclaimer portrays abortion as one among a menu of morally equivalent choices. While that may be the City’s view, it is not the Center’s. The message conveyed is antithetical to the very moral, religious, and ideological reasons the Center exists. Its avowed mission is to ‘provid[e] alternatives to abortion.’”

There is an extended discussion of which “level of judicial scrutiny” should be employed which is interesting but takes us away from the hub of the decision. For example, how the ordinance only applies to pro-life centers, not to abortion clinics. Wilkinson observed

Particularly troubling in this regard is that the ordinance applies solely to speakers who talk about pregnancy related services but not to speakers on any other topic; and that the ordinance compels speech from pro-life pregnancy centers, but not other pregnancy clinics that offer or refer for abortion.

Wilkinson addresses a phase of the case other judges have highlighted. That while “The classic First Amendment violation has always been thought to involve an outright prohibition by the state of certain speech,” he wrote, “over time, adjunct First Amendment rights have emerged, which in their own way have become as significant for expressive liberty as the right not to be silenced by a disapproving public entity.”

Among those “adjunct rights,” Wilkinson explained is

the right not to utter political and philosophical beliefs that the state wishes to have said. … These adjunct rights have become crucial to speech freedoms because, without them, states can bend individuals to their own beliefs and use compelled speech as a weapon to run its ideological foes into the ground. Preserving some distance between the state and the message is thus the aim of preventing banned speech and compelled speech alike, and it is what gives the right in this case its fundamental character.

Similar laws forcing pregnancy centers to post such signage have been struck down in New York City and Baltimore, as well as Austin, Texas and Montgomery County, Maryland. The latter was eventually ordered to pay pregnancy centers $330,000 in attorney’s fees.

As we observed last Friday the battle over the relentless pro-abortion campaign to compel pro-lifers organizations to promote abortion could be coming to a head this year. The Supreme Court has announced it will hear National Institute of Family and Life Advocates (NIFLA) v. Becerra, the pro-life challenge to the so-called “Reproductive FACT Act.”

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