Baltimore could face free-speech lawsuit if pregnancy center bill is passed

A Baltimore City Council bill requiring “pregnancy centers” to post a sign if they do not provide abortion or birth control services may be unconstitutional, some argue.

The latest version of the bill, introduced by Council President Stephanie C. Rawlings-Blake and passed by the Judiciary and Legislative Investigations Committee Monday night, would fine centers that do not comply $150 per day.

Casey Mattox, legal counsel at the Alliance Defense Fund, a conservative group, said that if the bill becomes law, he would be surprised if the city were not sued.

“First of all, this is basically tailored to only impose any kind of disclosure requirement on pregnancy resource centers and not to impose any requirement of disclosure on, for example, Planned Parenthood clinics or other abortion clinics,” Mattox said. “It’s basically a viewpoint problem because you’re favoring one side of the debate.”

There are four pregnancy resource centers in the city.

The purpose of the bill is to make sure women who go to one of them know that they will not be able to get an abortion or birth control there, said Wendy Royalty, chairwoman of the board of NARAL Pro-Choice Maryland.

As is, the centers operate by luring in women who think they are going to an abortion clinic and then “trick” them into continuing their pregnancies, she said. The centers also give the women inaccurate information about the risks of abortion and the effectiveness of birth control, Royalty said.

The proposal still requires a dual vote by the full City Council.

The city solicitor’s office has signed off on the measure, with Solicitor George A. Nilson writing that he sees no constitutional problems with it.

“While it is true that compelled disclosure can potentially infringe upon First Amendment rights, it is well settled that regulations requiring disclosure of truthful, factual information are permissible, provided the disclosure is justified by a sufficient purpose behind the legislation,” Nilson wrote.

The purpose of this bill is to ensure that women are fully informed about what services a particular center provides so they can find the services they seek, he wrote.

University of Maryland School of Law professor Mark Graber, too, said the bill is constitutional.

“There is a commercial speech doctrine that says government cannot regulate most advertising as long as it’s truthful, but there are no decisions that say government can’t require a business to make truthful statements about what the business does,” said Graber, who wrote a book on abortion and the Constitution.

“So in fact here, what the government is simply saying is, ‘We’re worried about when you say pregnancy services, people may be misled,’” Graber said. “That’s not covered by the commercial speech doctrine. … It’s a sense of honestly stating your viewpoint, but you get to choose what your viewpoint is. We’re not telling anybody to perform abortions, we’re simply asking, ‘Do you or don’t you,’ and because you’re a business, you can’t keep this secret.”

He compared Baltimore’s bill to the requirement that tobacco companies put health warnings on cigarette packages.

For Silver Spring solo practitioner Jon Katz, those cigarette warnings go too far, and Baltimore’s bill does too.

“I do believe that the language of the First Amendment is clear enough, both that government should be taking a very hands-off approach on speech and also about requiring people to speak,” he said.

Pregnancy resource centers can cause problems for women seeking abortion or birth control, but “the First Amendment means nothing if we don’t have reprehensible speech,” Katz added.

The best response to the centers would be to spread the word via the Internet, the media and even pickets that the centers are “fraudulent,” he said.

Conscience clause

Mattox, of the Alliance Defense Fund, said that in addition to discriminating against the anti-abortion point of view, the bill is written such that it could apply to an individual nurse in a hospital who will not perform or make referrals for abortion or birth control. That’s confusing and could interfere with the nurse’s federal and state conscience clause protections.

He also argued that pregnancy centers would likely disagree with any sign that states that they do not provide birth control. The centers discuss abstinence, which is a form of birth control, he said.

Mattox said that if the city’s goal is ensuring that women are well informed about their choices, abortion clinics should have to post signs about all the services they don’t provide, such as adoption placement and help finding maternity clothes.

Two of the city’s pregnancy centers are funded by the Catholic Church.

Sean Caine, a spokesman for the Archdiocese of Baltimore, said the bill would force the centers to make statements inconsistent with the religious beliefs of their operators.

The required sign would “send[] the message that such services are available elsewhere and should be considered by women,” Caine said.