City Loses Battle With Anti-Abortion Clinics

     (CN) – Baltimore cannot force pregnancy centers that counsel women away from abortions to post conspicuous signs advertising their stance as well as their refusal to provide birth control, the 4th Circuit ruled.
     In 2009, Baltimore passed a law that required pregnancy centers to display signs stating if they do not offer abortions or birth control.
     Archbishop of Baltimore Edwin F. O’Brien, St. Brigid’s Roman Catholic Church and the Greater Baltimore Center for Pregnancy Concerns, which occupies space rent-free from St. Brigid’s, filed suit over the law, claiming it should be struck down as unconstitutional since it violated the rights to free speech and assembly, free exercise of religion, equal protection under the 14th Amendment, and the conscience clause under the Maryland Code.
     U.S. District Judge Marvin Garbis dismissed the archbishop and St. Brigid’s last year for lack of standing, while issuing a permanent injunction against the law. While the court concluded that Baltimore’s law did not restrict speech at pregnancy counseling centers, it said the requirement amounts to unconstitutional “compelled speech.”
     Garbis also converted the city’s motion to dismiss into a motion for summary judgment, granted the pregnancy center’s motion for summary judgment on its free speech claim, and dismissed without prejudice the plaintiffs’ remaining claims in view of its ruling on the free speech claim.
     A federal appeals court based in Richmond, Va., upheld the decision last week.
     “The city’s argument does not address what commercial transaction is proposed by the Pregnancy Center’s speech or what economic interest motivates the Pregnancy Center’s speech,” Judge Paul Niemeyer wrote for a three-judge panel. “Instead, the city would define commercial speech to include any speech that offers services ‘which have commercial value, garnering payments and fees in the marketplace’ generally. Adopting this definition of commercial speech would effect an unprecedented expansion of the commercial speech doctrine and is unsupported by citation to any applicable Supreme Court precedent.”
     “We need not, however, rely entirely on the weakness of the city’s demonstration that in enacting the ordinance, it was promoting a compelling government interest, because the more significant problem for the city – the one that we find fatal – is that the ordinance is not narrowly tailored to serve the city’s interest,” he added.
     Baltimore’s ordinance fails to target false advertising as it purports, according to the court, which also found the law overinclusive in its application to all pregnancy centers. It said that the law additionally ignores other alternatives that could accomplish the ordinance’s goal without imposing speech on the centers, like starting an educational campaign.
     “That the city resorted to speech restrictions before trying these or other similar options is more than enough to doom the ordinance,” Niemeyer wrote.
     The panel also found upheld Garbis’ decision to turn a motion to dismiss into a summary judgment.
     “Finally, the city contends that the district court abused its discretion (1) in converting its motion to dismiss into a motion for summary judgment, without giving it prior notice and without allowing it discovery before deciding the motion, and (2) in dismissing the plaintiffs’ remaining counts (other than the free speech count) without prejudice, rather than with prejudice,” Niemeyer wrote. “We find no error in these rulings and also see no prejudice to the city.”
     In a 30-page dissent, Judge Robert King said that the permanent injunction “has flouted foundational legal principles” and “subverted the Federal Rules of Civil Procedure” in rushing to summary judgment.
     After finding Garbis’ position “indefensible,” King slammed his own colleagues for “further imprudence.”
     “As but one example, while the district court was at least willing to assume that the Ordinance is undergirded by a compelling interest, the majority opines at length on the insufficiency and insincerity of the interests and positions advanced by the city,” King wrote. “Because these proceedings have thus followed a course more fitting a kangaroo court than a court of the United States, I write separately in dissent.”

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