Judge Upholds Most of Abortion Services Law

OAKLAND, Calif. (CN) - A San Francisco ordinance prohibiting false advertising at anti-abortion pregnancy services clinics withstood most of a legal challenge in federal court.

Judge Saundra Brown Armstrong found the 2011 ordinance was not was not so vague to be confusing and was not preempted by state law, as alleged, while upholding an equal protection claim for the time being.

First Resort Inc. sued the City and County of San Francisco for civil rights violations in November 2011 for enacting the Pregnancy Information Disclosure and Protection Ordinance, which is "aimed at ensuring that indigent women facing unexpected pregnancies are not harmed by false or misleading advertising by certain providers of pregnancy-related services," according to the ordinance.

The ordinance made it illegal for crisis pregnancy centers to make "any statement, concerning [its] services, professional or otherwise ... which is untrue or misleading, whether by statement or omission, that the limited services pregnancy center knows or which by the exercise of reasonable care should know to be untrue or misleading."

The provision applies only to limited services pregnancy centers, which is a pregnancy services center "that does not directly provide or provide referrals to clients for the following services: (1) abortions; or (2) emergency contraception."

Before filing suit to enforce the ordinance, the city attorney must provide notice of the violation and provide the center ten days to cure, after which penalties from $50 to $500 per violation can be assessed.

The court tossed First Resort's five argument that the ordinance is unconstitutionally vague, which can only be upheld if a person of common intelligence "must necessarily guess at its meaning and differ as to its application."

First Resort claimed that statements regulated by the ordinance are not expressly limited to advertising and therefore the ordinance could apply "to virtually any speech made by First Resort, including statements made to its financial supporters for fundraising purposes."

Armstrong noted that First Resort "ignored" provisions that state the purpose of the ordinance is to prevent false and misleading advertising regarding services and counseling provided or not provided and that any center cited under the ordinance would get a chance to cure the "false, misleading or deceptive advertising."

The judge ruled that a "person of common intelligence could discern that the conduct proscribed by the ordinance is false and misleading advertising, and not simply any statement made by the limited services pregnancy center."

First Resort's argument that a person of common intelligence could not discern what type of speech is considered misleading under the ordinance "fails to consider the context of the provisions of the ordinance as a whole. The ordinance plainly does not apply to any false or misleading advertising. Rather, as section 93.2 makes clear, the advertising targeted by the ordinance specifically pertains to advertising that 'mislead[s] women contemplating abortion into believing that their facilities offer abortion services and unbiased counseling,'" according to the ruling.

Armstrong gave similar short shrift to First Resort's contention that a person of common intelligence "cannot possibly know what speech is regulated when the ordinance makes it unlawful for a regulated pregnancy service center to by 'omission' engage in a 'plan or scheme with the intent not to perform the services... impliedly offered,'" finding that the contention "lacks merit."

"First Resort ignores that the ordinance is specifically directed at 'statements' that are false or misleading. A statement may be false or misleading based on an affirmative misrepresentation in the statement. In addition, a statement may be misleading due to the 'omission' of information. Thus, it is not an 'omission' per se that is the focus of the ordinance; rather, it is a statement which either incorrectly states or implies that services will be offered. Despite First Resort's assertions to the contrary, a person of common intelligence would be able to discern what statements are regulated by the ordinance," according to the ruling.

"Not so" was the judge's response to First Resort's claim that the ordinance's statement that civil penalties would be assessed to each and every party responsible means that it could be used against parties beyond the limited pregnancy services center such as public relations firms representing the center.

Armstrong ruled: "The reference to 'each and every party' in subsection (c) must be read in the context of the ordinance as a whole, and the Enforcement section in particular. Subsection (a) expressly states that prior to filing suit, the City Attorney must provide written notice to the 'limited services pregnancy center' accused of violating the ordinance; if the center fails to respond or refuses to cure the violation within ten days, the City Attorney may file a civil action against the limited services pregnancy center. Accordingly, the Court rejects First Resort's contention that the reference to 'each and every party responsible' renders the ordinance unconstitutionally vague."

While dismissing the claim that the ordinance is void for vagueness, the judge allowed First Resort leave to amend "out of an abundance of caution," despite finding it "questionable" that First Resort will be able to satisfy the deficiencies in its arguments.

The court did find that First Resort "sufficiently alleged that the ordinance implicates a fundamental right for purposes of its equal protection claim." A statute that infringes on a "fundamental right" is reviewed with strict scrutiny, and should be upheld only where the law serves a compelling government interest.

First Resort argues that the ordinance "burdens its fundamental rights to free speech, thereby triggering strict scrutiny review. The City counters that there are no allegations in the complaint that the ordinance burdens either a fundamental right or a suspect class, and as a result, the ordinance is subject to rational basis review."

The court agreed with First Resort that the complaint alleges the ordinance burdens First Resorts "fundamental rights."

While the defendants' reply brief argues against the claim Armstrong found the argument not properly before the court since the city failed to present it in its opening papers, citing 9th Circuit case Zamani v. Carnes that held the "district court need not consider arguments raised for the first time in a reply brief."

The City can, however, challenge the claim in a subsequent motion, according to the ruling.

Finally the judge tossed First Resort's preemption claim because "a claim of preemption based on the duplication of section 17500 is alleged nowhere in the complaint, such claim is not properly before the court."

The judge granted First Resort leave to amend the claim.

First Resort is represented by Kelly Sinner Biggins of Locke Lorde LLP in Los Angeles.

The center named as defendants Dennis Herrera, City Attorney for the City of San Francisco, the Board of Supervisors for San Francisco City and County and the City and County of San Francisco. They are represented Erin Bernstein of the city attorney's office.

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