NYC pregnancy centers win free speech appeal

NEW YORK—The 2nd U.S. Circuit Court of Appeals earlier today tossed out key parts of New York City’s law requiring pregnancy centers to post signs saying they do not offer abortion referrals. That provision is a violation of the centers’ free speech, the court ruled.

The three-judge panel’s unanimous ruling was a substantial, but mixed, victory for the pregnancy centers. A lower federal judge had tossed out the city law in its entirety. The 2nd Circuit reinstated a portion of the law that requires centers to disclose whether they have medical personnel on staff. The ruling paralleled a 4th Circuit ruling on a similar law in Maryland.

In striking down the city law’s sign requirement, the 2nd Circuit ruled the law “requires centers to mention controversial services that some pregnancy services centers, such as plaintiffs in this case, oppose.”

The ruling continued: “A requirement that pregnancy services centers address abortion, emergency contraception, or prenatal care at the beginning of their contact with potential clients alters the centers’ political speech by mandating the manner in which the discussion of these issues begins. … The centers must be free to formulate their own address.”

The court also struck the provision that centers post a sign saying that “the New York City Department of Health and Mental Hygiene encourages women who are or who may be pregnant to consult with a licensed provider.” The court said if the city wanted to get that message across, it could do so through its own ad campaign, not through pregnancy centers.

“We think the court was right to reject two of the compelled speech requirements on pro-life centers that help women,” said Matt Bowman, a lawyer with the Alliance Defending Freedom (ADF), who argued the case on behalf of the centers before the 2nd Circuit. “We think the court was wrong to uphold any compelled speech.”

ADF is concerned about another part of the ruling. The lower judge ruled that the city’s definition of pregnancy center was too vague. The 2nd Circuit said the definition of a center—which amounts to any counseling center that looks medical—was fine. One of the judges, in a concurring opinion that dissented from that part of the ruling, said the definition was a “bureaucrat’s dream,” because city officials could enforce the regulation on whomever they wanted.

“The city can decide to persecute pro-life centers just because they don’t like the way they look,” Bowman said.

ADF has two weeks to decide whether to appeal that part of the decision to a full panel of the 2nd Circuit. Newly elected New York City Mayor Bill de Blasio has said he, like his predecessor Michael Bloomberg, supports the city law and would pursue appeals if it was struck down.

The case was argued back in 2012, but the 2nd Circuit often takes time to deliver its rulings because it’s one of the busiest appeals courts in the country.