Ninth Circuit Upholds Law Against Misleading Anti-Abortion Ads

On appeal, First Resort argued that the ordinance regulates all advertising, not only false or misleading advertising, and is subject to heightened judicial scrutiny because it regulates noncommercial speech.

“We disagree,” Nelson wrote on Tuesday. “The ordinance clearly makes ‘unlawful ... any statement ... which is untrue or misleading’ concerning services provided by anti-abortion clinics. … (T)he central issue therefore is whether the regulated speech should be characterized as commercial.”

Concluding that it can be characterized as commercial speech, Nelson pointed out that First Resort acknowledged in court documents that it “‘views its online advertising as competing with that of abortion providers for the attention of online viewers,’ and that ‘[t]he medical services offered by First Resort, such as pregnancy testing, ultrasounds, and nursing consultations have monetary value.’”

First Resort’s board of directors said in a statement that they were “disturbed by the court’s ruling.”

“First Resort has always upheld the highest standards of integrity and truthfulness with its clients and the public. This legislation isn't about consumer protection, it's a misplaced ideological attack,” the group said.

First Amendment attorney Lawrence Walters, however, said the panel made a standard finding under prevailing law.

“The ordinance prohibited only false or deceptive commercial speech, so it was correct to find that this speech falls outside constitutional protection,” Walters said in an email. “While false speech can receive First Amendment protection in some circumstances, in the commercial context such speech remains outside the ambit of protection.”

The panel also rejected First Resort’s contention that the ordinance is discriminatory in that it targets anti-abortion clinics, while exempting clinics that offer abortions.

Noting that the city explained in its ordinance that it would ultimately have to pay for more invasive and expensive medical procedures for indigent women whose abortions were delayed by visiting centers like First Resort, the court found that San Francisco’s ordinance is “rationally related” to its interests.

“This is an excellent decision for women who don't appreciate being lied to about their health care,” former San Francisco Deputy City Attorney Erin Bernstein said in an interview Tuesday. Bernstein represented San Francisco in arguments to the Ninth Circuit last November.

Bernstein now is senior deputy city attorney for Oakland, which passed a similar ordinance last year.

However, Senior U.S. Circuit Judge A. Wallace Tashima concurred in part but was dubitante about the panel's finding that the ordinance is not preempted by California's false advertising law.

Calling the majority’s reasoning “at best, sketchy,” Tashima suggested that the question be certified for consideration by the California Supreme Court.

Noting Tashima's hesitance, First Resort's board hinted that the case may not yet be over.

“Judge Tashima noted there is already state law that protects consumers against false advertising,” the board said in its statement. “We see strong grounds for further review by the full Ninth Circuit or U.S. Supreme Court and will be considering all options.”

But Planned Parenthood's Parker was optimistic, saying that other cities may now consider enacting similar laws.

“Because it was upheld by the Ninth Circuit, it gives a roadmap for adopting similar ordinances,” she said in an interview. “At least within the Ninth [Circuit], there's a good expectation those ordinances will be upheld against a challenge. Indeed, other cities and states could use it.”

Alluding to the threat to abortion access under President Donald Trump's administration, Herrera was emphatic Tuesday.

“Reproductive rights are human rights,” he said. “Now more than ever, they must be protected.”

U.S. Circuit Judge John Owens joined Nelson and Tashima on the panel.

Kelly Biggins with Locke Lord in Los Angeles represented First Resort.

Walters practices in Longwood, Fla.

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