Sign Laws for Pregnancy Clinics Divide 4th Circuit

(CN) - A pregnancy clinic that does not offer abortions or contraception cannot block a Baltimore law that requires it to disclose those limitations to patients, the full 4th Circuit ruled.

The en banc federal appeals court issued its ruling on the Baltimore law together with its findings on Montgomery County's requirements for pregnancy clinics.

Archbishop of Baltimore Edwin O'Brien and St. Brigid's Roman Catholic Church had joined the Greater Baltimore Center for Pregnancy Concerns in suing over the 2009 Baltimore law that requires clinics to post conspicuous signs if they will not help patients get abortions or birth control.

The center, which occupies space rent-free from St. Brigid's as well as another site, says its sincerely held religious beliefs causes it to oppose abortion and certain forms of birth control.

In permanently enjoining the law in 2011, U.S. District Judge Marvin Garbis found that Baltimore's notice requirement amounted to unconstitutional "compelled speech."

The en banc federal appeals court reversed last week because it found that the "summary judgment decision was laden with error, in that the court denied the defendants essential discovery and otherwise disregarded basic rules of civil procedure."

In addition to denying the city discovery, the District Court erred in "its refusal to view in the city's favor what evidence there is, and its verboten factual findings, many premised on nothing more than its own supposition," Judge Robert King wrote for an eight-member majority.

In his dissent, Judge Harvie Wilkinson said the majority's opinion showed no concern for the free speech violations at issue in this case.

"In a case concerning a law that requires private, noncommercial organizations to convey a government-authored message, one would expect to find at least some acknowledgement of the dangers of state-compelled speech," Wilkinson wrote. "But one will search the majority's opinion in vain for any such recognition. Instead, the majority opts to opine on various points of civil procedure, apparently oblivious to the fact that litigation is not an end in itself, but a means of vindicating the substantive values underlying our legal order, among which I had hitherto supposed were the freedoms of conscience and belief."

"Because the majority fails to respect the center's right not to utter a state-sponsored message that offends its core moral and religious principles, and because it launches a litigious fusillade aimed at smothering the center's right to simple silence, I respectfully dissent," he added.

Wilkinson also joined in the dissent penned by Judge Paul Niemeyer and joined by two others.

"A ruling of this kind does not implicate a need to have discovery of factual circumstances, as the majority opinion orders, because every point on which the district court's ruling depended was a question of law that construed the ordinance on its face and assessed its scope against well-established First Amendment principles," Niemeyer wrote. "In determining to vacate the district court's order and remand the case, the majority opinion addresses a case not before us. The opinion fails in three fundamental respects."

Niemeyer also called the ruling on the Baltimore case "curious" in light of the court's opinion on a similar law Montgomery County adopted in 2010.

Resolution 16-1252 requires Montgomery pregnancy clinics that do not staff licensed medical professionals to post signs stating as much and encouraging "women who are or may be pregnant to consult with a licensed health care provider."

Centro Tepeyac, a nonprofit that calls itself a "pro-life pregnancy resource center," called the law unconstitutional.

It said the resolution forces Centro Tepeyac "to suggest that [it is] not qualified to discuss pregnancy options or to provide help to pregnant women."

Though U.S. District Judge Deborah Chasanow left the disclosure requirement in place, she enjoined the second provision that advocates professional consultations.

The Richmond, Va.-based appellate concluded last week, 11-3, that Chasanow made the right call.

Wilkinson distinguished the case from that against Baltimore in a concurring opinion.

"The first disclosure mandated by the Montgomery County Resolution - that a center 'does not have a licensed medical professional on staff' - falls within the bounds of the state's authority to safeguard its citizens' welfare," he wrote. "It requires the centers merely to state both briefly and accurately the professional credentials of their staff rather than to present abortion and birth control as viable options right at the outset of their personal interactions with their clients and notwithstanding their beliefs to the contrary."

"Pregnancy can be a time of great joy and anticipation - for both parents," he added. "But it can also be a time of apprehension and medical anxiety. I thus do not think it remiss for the state to require organizations like Centro Tepeyac to provide a scrap of accurate medical information to pregnant women at what can be a fraught moment, information that can neutrally assist with their search for licensed medical care."

Niemeyer wrote the dissent in this case as well, and against called the majority's decision "curious."

"By affirming the District Court's decision, the majority effectively approves novel and erroneous First Amendment principles," Niemeyer wrote. "It upholds the ruling that one sentence of the compelled speech is likely unconstitutional while the other is likely constitutional, even though both are mandated and are subject to strict scrutiny. It also approves an analysis that is internally inconsistent."

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