Supreme Court will not hear appeal in another case of infringing upon pregnancy help centers’ first amendment rights

By Dave Andrusko

Judge J. Harvie Wilkinson

When last we wrote about the ham-handed campaign waged by the city of Baltimore against the Greater Baltimore Center for Pregnancy Concerns, the city attorneys were down (pardon the expression) to a Hail Mary pass. They were appealing to the Supreme Court after a three-judge panel had affirmed a 2016 ruling by U.S. District Judge Marvin J. Garbis that a Baltimore ordinance targeting pregnancy care center violates the First Amendment—precisely the position taken by opponents of the ordinance. Just a few weeks before the Supreme Court had heard oral arguments in a California case very similar to what happened in Baltimore.

Well, as NRL News Today readers know, this week in NIFLA v. Becerra, the Supreme Court upheld the free-speech rights of crisis-pregnancy centers against attack by the State of California. That was the city of Baltimore’s last hope so it came as no surprise that on Thursday the Supreme Court, without comment, declined to hear their appeal.

Oddly enough in their appeal, the city’s attorneys argued “The record demonstrates that sometimes pregnancy centers use tactics that are deceptive to attract patients to their clinics.” But in his brilliant 21-page decision, 4th U.S. Circuit Court of Appeals Judge J. Harvie Wilkinson 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” (emphasis added).

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.”

The ordinance (as explained in the opinion written by Judge Wilkinson and joined in by Judges Allyson Duncan and G. Steven Agee) “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.’” As noted above, this was 100% at odds with the pregnancy center’s reason for being.

Moreover (as was the case in California) 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.