SAN FRANCISCO (CN) — The Ninth Circuit on Tuesday upheld a San Francisco law prohibiting anti-abortion centers from misleading pregnant women into believing that the centers provide abortions: the first such law in the nation.
In affirming, a three-judge panel found that San Francisco’s Pregnancy Information Disclosure and Protection Ordinance is constitutional and not preempted by California’s false advertising law.
“The ordinance merely seeks to prevent LSPCs [limited services pregnancy centers] from harming women through false or misleading speech about their services and in no way restricts those entities from expressing their views about abortion to the public or their clients,” Senior U.S. Circuit Judge Dorothy Nelson wrote for the court.
First Resort Inc., an anti-abortion nonprofit that operates an LSPC, also known as a crisis pregnancy center, in San Francisco under the name SupportCircle, sued the city in 2011. It claimed the law violated its right to free speech and to the same protections as clinics that offer abortions.
The law prohibits anti-abortion clinics from making false or misleading statements that they offer abortions, emergency contraception, or referrals to abortion providers, and fines them if they do so.
The group, which provides pregnancy services such as ultrasounds and prenatal care, advertised its services on Google’s Adwords, so that when certain keyword combinations, such as “San Francisco” and “abortion” or “emergency contraception” were searched, First Resort’s website appeared as an advertisement above the search results.
Although First Resort’s website implied that the group offered abortion-related services, it did not state on its website or in its advertising that it did not actually provide them.
A 2007 congressional report examining false and misleading advertising by crisis pregnancy centers found that some of them did not give patients accurate medical information, and that most of them lied to patients about the medical consequences of abortion to scare them away from having one, according to the Ninth Circuit’s 41-page opinion.
While it is unclear whether the centers still employ those practices, patients have been told that abortion can cause breast cancer and infertility, statements that are medically inaccurate, according to Planned Parenthood Affiliates of Northern California Chief Legal Counsel Beth Parker.
San Francisco countered that false and misleading advertising by groups like First Resort harms women by delaying abortions or the use of emergency contraception. A delay in scheduling an abortion during an initial clinic visit decreases the chance of having one, and a delay of even a few hours in obtaining emergency contraception can result in pregnancy, the city said. Its ordinance is aimed at indigent women “facing unexpected pregnancies.”
“False and misleading advertising by these clinics is a deceitful practice that preys on women when they least suspect it,” San Francisco City Attorney Dennis Herrera said in an email Tuesday. He was a defendant, along with San Francisco and its Board of Supervisors. “These groups are entitled to be advocates, but they’re not entitled to break the law,” Herrera added.
Slamming First Resort’s advertising as an attempt to draw “abortion-minded” women to its center, U.S. District Judge Saundra Brown Armstrong dismissed the lawsuit in 2015, finding that the San Francisco ordinance regulates only false and misleading advertising and does not violate First Resort’s rights to free speech and equal protection.
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.