Fourth Circuit Strikes Baltimore Ordinance Regulating Fake Clinics

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Analysis Law and Policy

Fourth Circuit Strikes Baltimore Ordinance Regulating Fake Clinics

Jessica Mason Pieklo

The decision comes as the Supreme Court is set to examine the constitutionality of a similar California law.

A federal appeals court on Friday ruled as unconstitutional a 2009 Baltimore city ordinance requiring anti-choice crisis pregnancy centers (CPCs) to post signs disclosing that they neither offer nor refer patients for abortions. The decision strikes a blow to similar efforts across the country and comes just as the U.S. Supreme Court is considering a similar case out of California.

In 2009, Baltimore city officials—concerned that patients might get the wrong impression about available services—passed a law that required businesses advertising as reproductive health-care centers to publicly disclose via waiting-room signs whether they do not, in fact, offer or refer visitors for abortion care and emergency contraception. The ordinance applies to “limited-service pregnancy centers,” meaning any entity “whose primary purpose is to provide pregnancy-related services” and which “provides information about pregnancy-related services,” but “does not provide or refer for” abortions or “nondirective and comprehensive” birth control. The signs must be “conspicuously posted” and “easily readable” in English and Spanish.

The Greater Baltimore Center for Pregnancy Concerns (GBCPC) is a CPC that advertises itself in places like the local paper and on the sides of buses as a reproductive health-care clinic providing a full range of services. The center does not, however, offer abortion and emergency contraception; nor does it refer patients elsewhere for that care. In March 2010, GBCPC sued the City of Baltimore over the disclosure law, arguing it violated the center’s free speech rights. The following year, a district court agreed and blocked the ordinance. Attorneys for the city appealed; in 2012 a panel of judges for the U.S Court of Appeals for the Fourth Circuit affirmed the district court’s decision. Attorneys for the city then asked the entire Fourth Circuit to hear the case. The full court reversed the panel’s decision, directing the case to go back to the district court for more evidence-gathering. The court determined that more information was needed about GBCPC’s advertising practices as well as “evidence substantiating the efficacy of the ordinance in promoting public health.”

In October 2016, a federal court again blocked the ordinance. Friday’s ruling upholds that 2016 decision.

Roe is gone. The chaos is just beginning.

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According to the Fourth Circuit’s latest ruling, while the city has “considerable latitude in regulating public health and deceptive advertising,” the ordinance at issue is “too loose a fit with those ends.” The result, according to the court, is to “compel a politically and religiously motivated group to convey a message fundamentally at odds with its core beliefs and mission.”

“The ordinance forces the center to utter in its own waiting room words at odds with its foundational beliefs and with the principles of those who have given their working lives to it,” wrote Judge J. Harvie Wilkinson III for the panel. “Without proving the inefficacy of less restrictive alternatives, providing concrete evidence of deception, or more precisely targeting its regulation, the city cannot prevail.”

First Amendment speech cases are often full of muddled arguments. But in recent years, conservative legal advocates have taken the murky waters of free speech jurisprudence and made them almost unnavigable by arguing laws that regulate the commercial sphere—such as truth-in-advertising laws, or anti-discrimination ordinances like the one at issue in Masterpiece Cakeshop—unconstitutionally force them to endorse political speech they disagree with.

This case is a perfect example of a federal court buying those arguments hook, line, and sinker.

Attorneys for the City of Baltimore had defended the ordinance on the grounds that the regulation targets commercial or professional speech, areas government bodies typically have greater legal latitude to regulate. The law does, in fact, target commercial speech: It requires certain professions to issue certain truthful disclosures: in this case, that anti-choice pregnancy centers posing as reproductive health-care clinics do not offer comprehensive reproductive health-care services. It seems like a pretty clear-cut argument, and it should have been an easy win for the city. So what happened?

What happened is that the Fourth Circuit determined that the ordinance as applied to the center doesn’t regulate commercial speech because the anti-choice clinic is, basically, not engaged in any commercial transaction in the waiting rooms where the signs are required to appear.

“Even if pregnancy-related services are discussed there,” Wilkinson wrote, “the Center collects no remuneration of any kind, including referral fees from physicians. A morally and religiously motivated offering of free services cannot be described as a bare ‘commercial transaction.'”

So. Let’s break this down even more. A business—because that is what GBCPC is, regardless if whether it is a for-profit or a nonprofit one—is apparently not doing business in its waiting room? In this case, yes, says the Fourth Circuit.

According to the court, the center is a “nonprofit organization whose clearest motivation is not economic but moral, philosophical, and religious.”

The fact that its free services may have commercial value in other contexts—like, say, where touting them for fundraising to keep its doors open is concerned—is not enough to “transform the Center’s ideological and religious advocacy into commercial activity,” the court determined.

In effect, the court decided that GBCPC is a pop-up religious storefront that just so happens to offer services like ultrasounds that are commercial in nature. But because it operates as a nonprofit and subsidizes its services, it’s not really a business at all. It doesn’t matter that it is advertising commercial services, in a commercial context, apparently. According to the Fourth Circuit, what matters is what is in the hearts and minds of GBCPC employees. And that, the court determined, is religious advocacy, not money.

Of course, what is in the hearts and minds of the GBCPC employees and its business mission shouldn’t immunize it from the legal effects of deceptively advertising itself to the public—or, for that matter, from refusing service to LGBTQ people or other vulnerable groups. These businesses, with some exceptions, are subject to truth-in-advertising laws and anti-discrimination laws like their for-profit counterparts.  

Furthermore, there’s a break in GBCPC’s logic here. If it is so fundamentally focused on a religious mission that includes anti-abortion ideology, then why not be willing to state that loud and proud by complying with the disclosure? GBCPC gets to have it both ways here. It gets to argue both that it has a religious motivation for offering pregnancy-related services and duck the law without having to disclose that it doesn’t provide all pregnancy-related services. 

The Fourth Circuit acknowledged that different facts might have a different result, but it is hard to imagine another anti-choice pregnancy center falling outside of the court’s reasoning here. This could spell bad news for reproductive rights advocates nationwide as the U.S. Supreme Court prepares to hear arguments later this spring in National Institute of Family and Life Advocates v. Becerra, a case challenging a California law passed in 2015 that requires the state’s licensed pregnancy centers to display a brief statement with a number to call for access to free and low-cost birth control and abortion care. Unlicensed centers must disclose that they are not medical facilities. 

Anti-choice pregnancy centers represented by the conservative litigation mill Alliance Defending Freedom (ADF)—which was at one point also involved in litigating the GBCPC case—argue the disclosure mandated under the law violates their First Amendment free speech and religious exercise rights because it requires religiously affiliated institutions to send a message that conflicts with their mission of promoting childbirth. Both a lower court and the U.S. Court of Appeals for the Ninth Circuit have ruled the California law is constitutional.

The Supreme Court has not yet scheduled an argument date for the California case. And while the Fourth Circuit’s decision last week has no impact on that one, it’s difficult to imagine the conservative wing of the Roberts Court coming to a different conclusion than the Fourth Circuit did here.

The result of such a decision would do real harm to pregnant people. The evidence is clear: Patients at fake anti-choice clinics receive inadequate care and are provided with medically false and misleading information. It’s a predatory business model with a religious objection to comprehensive reproductive health care at its core—and it could very well get the blessing of the Supreme Court later this year.