RICHMOND, Va. — A federal appeals court struggled for nearly three hours Thursday with whether two Maryland localities violated the free-speech rights of anti-abortion pregnancy counseling centers by requiring them to post certain disclaimers.
In June, a three-judge panel of the 4th U.S. Circuit Court of Appeals found the Baltimore and Montgomery County statutes unconstitutional. The governments appealed to the full appeals court, which is expected to rule in several weeks or months.
The ordinances were challenged by the Greater Baltimore Center for Pregnancy Concerns and Cento Tepeyac Women’s Center. The city ordinance requires pregnancy counseling centers to post a sign saying they don’t provide abortions or birth control. The Montgomery County law requires centers to post a notice that they don’t have a medical professional on staff, and that county health officials recommend that women who may be pregnant see a doctor.
Judges vigorously questioned lawyers for both sides on whether the governments violated the centers’ First Amendment rights in their zeal to rein in what they view as deceptive practices that could pose a threat to women’s health.
“I’m troubled by the notion that you believe anything can be compelled to be said, even if it’s accurate,” Judge Paul V. Niemeyer, who wrote the majority opinion for the panel, told county attorney Clifford L. Royalty. “We have a fundamental right not to be told what to say when performing a legal service.”
Royalty said government-required disclosures are common. He said a sign is a “minimal intrusion” that does not deter the centers from delivering their anti-abortion message.
Judge J. Harvie Wilkinson III said he did not have a problem with making Cento Tepeyac disclose that it doesn’t employ a medical professional. A federal judge upheld that section of the ordinance but was overturned by the appeals panel.
“In a health situation, doesn’t the government have some latitude to act to prevent harms that might result as long as the means are narrowly tailored?” Wilkinson asked.
Mark Rienzi, attorney for Cento Tepyac, said the notice was designed to blunt the impact of its counselors’ message by implying that they aren’t qualified.
Wilkinson said that while he views the disclosure as harmless, he agreed with the district court judge and the panel that the mandated referral to a doctor goes too far.
“It seems to have an ideological overtone of ‘You’re not really going to find help here,'” Wilkinson said.
‘Public health is a special situation’
In the other case, Judge Dennis Shedd asked Baltimore Center for Pregnancy Concerns attorney David Kinkopf why he would fight an ordinance that simply requires his client to tell the truth — that it doesn’t provide abortions or contraception.
“Isn’t that a little bit odd? I would think you might be proud of that,” Shedd said.
Kinkopf said the center has a right to share the information in its own way, not by a method forced on it by the government.
He also said that if the government wants women to know the center doesn’t offer certain services, it clearly has the right to do that through its own advertising and public outreach. If the government believes the center is deceiving people, he said, the proper remedy is enforcement of fraud and false advertising laws.
Some of the judges also raised the issue of whether the governments should simply spread the message through their own websites and other means rather than force the centers to carry it for them.
Suzanne Sangree, an attorney for the city, said the government is simply trying to prevent women from being deceived about the services they will receive.
She seemed to have an ally in Judge Robert King, who dissented in the panel ruling.
“Public health is a special situation,” he said. “We’re talking about the health of women — young women who are in many cases in a vulnerable situation.”
However, Wilkinson said he was troubled that the law only targets anti-abortion centers, thus raising the question of viewpoint discrimination.
“Are they engaging in any sort of medical practice or doing anything that poses a risk?” Wilkinson asked. “If you can’t point to some harmful procedure, doesn’t that go a little too far?”
Kinkopf said the center does not engage in medical practice, and that heath issues deserve “full and open debate without the government imposing its view.”