By HELEN CHRISTOPHI
SAN FRANCISCO (CN) – The Ninth Circuit heard arguments Tuesday over whether San Francisco has a “blatant” disregard for anti-abortion clinics’ free speech rights, by regulating their advertising while letting clinics that offer abortions off the hook.
But in what may indicate how the court will rule, Circuit Judge John Owens pointedly told an attorney for anti-abortion clinic First Resort that its advertising statements aren’t protected under the First Amendment.
“This is unprotected speech,” he said.
First Resort sued San Francisco in 2011 over an ordinance that would have required anti-abortion clinics to pay fines if they made statements that led women to believe they offer abortion services and emergency contraception. The clinic claims the ordinance violates their constitutional right to free expression.
However, U.S. District Judge Saundra Brown Armstrong dismissed the suit in 2015, finding the statute only restricts clinics’ use of false or misleading advertising, which is not protected by the Constitution.
First Resort, which has rebranded twice during its appeal and now goes by the name Third Box, advertised its services on Google’s Adwords, a fee-based keyword service. It paid Google so that when certain combinations of keywords, such as “San Francisco” and “abortion” or “emergency contraception” were used in a Google search, First Resort’s website appeared as an advertisement above the search results.
But First Resort offered neither abortions nor emergency contraception, a move Armstrong called an attempt to attract “abortion-minded” women to its clinic.
San Francisco believes such deception is harmful to women facing unplanned pregnancies, as a delay in scheduling an abortion during an initial clinic visit decreases the opportunity to have one at all. In the case of emergency contraception, a delay of even a few hours can have permanent consequences, according to the city.
“When women experience unplanned pregnancies, they must make extremely time-sensitive decisions,” Deputy City Attorney Erin Bernstein told a three-judge panel Tuesday. “When a woman is delayed in accessing care, she can permanently lose the ability to make that decision.”
Pushing for reversal, First Resort attorney Steve Tuggy called the San Francisco ordinance “classic viewpoint discrimination” because it only targets anti-abortion clinics.
“Advertising by a clinic whose views are favored by the city is unregulated,” Tuggy said in reference to clinics that perform abortions. “Those clinics can advertise in a misleading way all they want and not be regulated.”
Responding to Owens’ contention that advertising by anti-abortion clinics is unprotected commercial speech, Tuggy told the panel that “if this is viewpoint discrimination, we don’t reach commercial speech.”
Bernstein countered that the ordinance regulates only commercial speech, not protected speech, and defended San Francisco’s decision to regulate anti-abortion clinics only.
“When a woman goes into a clinic that has a menu of options that includes things like abortion and emergency contraception and those options aren’t available, that is delay,” she said. “[The ordinance] meets the harm where it finds it. That’s not discrimination, that’s narrow tailoring.”
She added that the city doesn’t regulate speech within anti-abortion centers and “respects” their right to counsel patients against terminating their pregnancies.
“The city’s ordinance is narrow but the harm it prevents is real,” she said. “When facing unplanned pregnancies, options dwindle by the day.”
Senior Circuit Judges Dorothy Nelson and A. Wallace Tashima joined Owens on the panel.
Tuggy is with Locke Lord in Los Angeles.