Published: November 18, 2011
Pregnancy counseling center says San Francisco ordinance violates First Amendment, files suit in federal court
First Resort, one of two pregnancy counseling centers in San Francisco facing speech restrictions under a new ordinance adopted by the Board of Supervisors, has filed suit in U.S. District Court challenging the measure’s constitutionality.
In a Nov. 16 press release, First Resort called the San Francisco law “an unconstitutional ordinance,” saying it is vague and has “intimidating enforcement provisions” that result in “an impermissible chilling effect on free speech, in violation of the First Amendment.”
“Under the ordinance,” said the First Resort news release, “the City Attorney is authorized unilaterally to determine what speech, or even what failure to speak, is ‘untrue or misleading, whether by statement or omission,’ and then issue a cease and desist letter; file a lawsuit for injunctive relief; seek possibly Draconian fines and penalties; and collect attorney’s fees and costs no matter how trivial the alleged violations may have been.”
“The obvious purpose of these provisions is to allow the City to intimidate small organizations or groups of citizens into speaking only in ways ‘approved’ by the City,” said First Resort. “In light of public pronouncements by the City Attorney’s office and individual members of the Board of Supervisors, it is clear the risk of bias and discrimination in enforcement is very high. This has forced First Resort to take legal action to protect their ongoing work and the organization.”
The measure won final approval by the San Francisco Board of Supervisors on Oct. 25 amid warnings that it would almost certainly be challenged in court. The ordinance, introduced Aug. 2 by Supervisor Malia Cohen, requires pregnancy counseling centers to inform prospective clients that they do not offer abortions -- under the theory that, by failing to do so, pregnancy centers are engaging in “false or misleading advertising.”
The radically pro-abortion group NARAL Pro Choice California, whose national counterpart has launched a countrywide campaign against pro-life pregnancy counseling centers, assisted Cohen in drafting the ordinance.
“The law purports to protect women ‘seeking information regarding options to terminate a pregnancy’ from receiving ‘untrue or misleading’ information from providers of medical or counseling services, yet it expressly excludes from its liability and enforcement provisions all pregnancy centers, including the City itself, that ‘provide or provide referrals to clients for… abortions,” said First Resort’s news release announcing the lawsuit. “Thus, by design, it would regulate and restrict speech only by persons and organizations the City regards as having ‘anti-abortion’ or pro-life views, exempting the rest.”
First Resort’s lawsuit came just days after the city of Austin, Texas, suspended enforcement of a similar law there after the Austin ordinance was also challenged in federal court. The city agreed not to enforce the law while its legal experts review it. LifeCare, a pregnancy counseling center in Austin, agreed to hold off on its lawsuit in the meantime.
Similar laws in New York and Maryland have been struck down or their enforcement blocked by federal judges on the grounds they violate the free speech guarantees of the First Amendment.
“The Board of Supervisors was informed that the ordinance was deeply flawed, but a majority of these local elected officials chose to overlook the flaws brought to their attention by our legal counsel and presumably raised in the cautionary memo prepared by their own City Attorney,” First Resort CEO Shari Plunkett said in a prepared statement. “This ordinance is the result of a private political organization using the power of government to attack First Resort, based on what the government inaccurately perceives to be First Resort’s viewpoints on some of the major issues of our time. It was crafted to target one or two specific organizations and carefully shelter from its scope all groups whose viewpoints the City agrees with. The ordinance is explicitly viewpoint-based repression of free speech on a subject that is at the heart of First Amendment protections. Thus, we believe the ordinance is a blatant violation of the First Amendment to the Constitution of the United States of America. We regret we were not treated fairly in City Hall, and now seek remedy in the courts.”
“As the only other organization affected by this ill-advised ordinance, we commend First Resort for their willingness to stand up for principled, constitutional protections for all,” said Chastidy Ronan, executive director of Alpha Pregnancy Center in San Francisco. “This law attacks one group of pregnancy resource providers, but not another group with a competing message. This creates an uneven playing field for free speech and is patently unfair. We will watch closely as the wheels of justice turn.”
The California Catholic Conference, the political action arm of the state’s bishops, also weighed in on the lawsuit, according to First Resort, which quoted CCC communications director Carol Hogan as saying: “An abortion-on-demand mentality unfortunately dominates the thinking of the San Francisco Board of Supervisors. According to statistics provided by the Guttmacher Institute in August 2011, 22 percent of all U.S. pregnancies (excluding miscarriages) end in abortion and 50 percent of women who have abortions each year have had at least one previous abortion. At the current rate, 3 in 10 American women will have had an abortion by age 45. Given those facts, licensed pregnancy centers are key to providing women the time and space to contemplate such an important decision and make a choice in accordance with their core values and beliefs. Targeting of pregnancy centers who do not provide abortions or refer clients for abortion and attempting to control their advertising and communications with clients is an unmistakable attempt to repress free speech.”