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Federal Judge Cites Free
Speech in Invalidating Baltimore Pregnancy Center Ordinance
Part Three of Three By Dave Andrusko
Friday's decision by U.S. District Court Judge Marvin J. Garbis received some local attention in the Washington, DC metropolitan area but little beyond Baltimore whose blatantly anti-Crisis Pregnancy Center ordinance Judge Garbis struck down. And that is a shame, both because of the substance of the closely reasoned 29-page opinion--which struck the Ordinance on First Amendment free speech grounds-- and what that may portend in the battle against NARAL's nationwide assault against women-helping centers. On December 4, 2009, under the leadership of then-City Council President (and now Mayor) Stephanie Rawlings-Blake, the Baltimore City Council enacted an ordinance that threatened local pregnancy helping centers with a $150 a day fine if they did not prominently display signs--in English and Spanish--saying that they do not provide abortion and birth control. We'll analyze Judge Garbis' point-by-point demolition of the city council's feeble defense in a moment. Suffice it to say that he began his opinion with this summary statement: "The Court holds that the Ordinance violates the Freedom of Speech Clause of Article I of the Constitution of the United States and is unenforceable. Whether a provider of pregnancy-related services is 'pro-life' or 'pro-choice,' it is for the provider not the government to decide when and how to discuss abortion and birth-control methods." BACKGROUND According to the Baltimore Sun, Rawlings-Blake "introduced the bill at the behest of Planned Parenthood, a pro-choice organization that hopes the Baltimore legislation will serve as a model for a national effort." Testifying in favor of the measure were representatives of NARAL Pro-choice Maryland and Planned Parenthood. And it HAS served as a model. NARAL and its allies are busy. According to Care Net, in addition to Baltimore, bills have been passed in Montgomery County, Maryland, and Austin, Texas. State bills have been attempted across the country but have been defeated. Bills are currently being considered in New York City and in Washington State. That is why Garbis' opinion is so hugely significant. To prevail the Council had to prove that the ordinance was not targeting a viewpoint (which it clearly was); that the Greater Baltimore Center for Pregnancy Concerns was involved in commercial concerns and therefore the speech that was being targeted enjoyed lesser Constitutional protection; that the Council was trying to "mitigate the effect of deceptive advertising"; and that in the pursuit of this the Council could not have employed a less drastic remedy. Let me highlight just a part of Judge Garbis' keen analysis. * "Defendants assert that the ordinance applies to any persons offering pregnancy-related information including Lamaze instructors, maternity clothing retailers, lactation consultants, etc. However, the Ordinance is applicable only to those who will never provide or refer for abortion or birth-control services. Such a qualification limits the application of the Ordinance primarily (if not exclusively) to those with strict moral or religious qualms regarding abortion and birth-control. The Center's viewpoint, formed on the basis of sensitive religious, moral, and political beliefs, is the overarching reason for its stark refusal to perform or refer for abortions and certain types of birth-control. Under the First Amendment, a government cannot 'impose special prohibitions on those speakers who express views on [governmentally] disfavored subjects' [quoting a 1992 Supreme Court decision]." * "The Center offers services that have value in the commercial marketplace. However the offering of free services such as pregnancy tests and sonograms in furtherance of a religious mission fails to equate with engaging in a commercial transaction. Were that the case, any house of worship offering their congregants sacramental wine, communion wafers, prayer beads, or other objects with commercial value, would find their accompanying speech subject to diminished constitutional protection. The nature of information transmitted by the Center includes, by any measure, speech generally afforded the highest level of constitutional protection." * With regard to viewpoint discrimination ["considered a particularly offensive form of content-based discrimination"] Garbis was particularly insightful. "It is revealing that Defendants refer to the Ordinance as a means of mitigating the 'harm' caused by the Plaintiffs' underlying 'propaganda' speech relating to abortion and contraction. Such descriptions can only support the conclusion that the Defendants enacted the Ordinance out of disagreement with Plaintiffs' viewpoints on abortion and birth-control." In an important footnote, Garbis adds, "It is worth noting that during consideration of the Ordinance, an amendment was offered requiring pro-life and pro-choice pregnancy centers alike to provide disclosures regarding the services offered. The amendment was defeated by a 10 to 5 margin." What's sauce for the pro-life goose ought to be sauce for the pro-abortion gander. If pregnancy centers are to be compelled to state what they don't provide, why shouldn't pro-abortion organizations is required to post what they don't provide? * The Council bore the responsibility to rebut the assumption that its regulation of protected speech is invalid--for example, by showing that its Ordinance is "narrowly tailored to promote a compelling government interest." But it fails that test if a "less restrictive alternative would serve the government's purpose." Garbis demonstrated how the Ordinance abysmally failed. For example, there is no "carve-out" provision for those centers which "do not engage in any deceptive practices," he wrote. "The disclaimer requirement is imposed irrespective of how forthcoming and transparent a pregnancy center presents itself." In fact the "legislative record" of deceptive advertising is "uneven," Garbis wrote. "The record reflects only sporadic instances of limited-service pregnancy centers [the descriptive phraseology employed by the Council] engaging in deceptive advertising." Of course pregnancy centers would challenge the notion that they deceive in any manner. In fact, "The Baltimore-based pregnancy centers subject to regulation under this Bill already disclose to clients that they do not refer for abortions or contraception," as an attorney for Care Net testified in hearings prior to the bill's passage. "The legal education and other services offered by [various pro-life pregnancy organizations] are designed to ensure that centers are operating in compliance with state and federal laws and providing only truthful and accurate information." Judge Garbis' ruling was a huge victory for the Archdiocese of Baltimore, which had challenged the Ordinance. In a statement, Archbishop Edwin F. O'Brien praised the ruling, which he said would allow "the important and compassionate work of these pro-life pregnancy centers to continue without interference from Baltimore City." Needless to say pro-abortion forces are not giving up. "An official with the Center for Reproductive Rights said in an e-mail Saturday that the group and the City of Baltimore would appeal Friday's ruling by a federal judge," the Baltimore Sun reported. Please send your comments to daveandrusko@gmail.com. If you like, join those who are following me on Twitter at http://twitter.com/daveha. |
