Federal court blocks NYC law forcing pregnancy centers to disclose services

[JURIST] The US District Court for the Southern District of New York [official website] Wednesday blocked [opinion, PDF] a New York City ordinance requiring non-profit pregnancy centers to disclose whether they provide abortion [JURIST news archive] services or emergency contraception. The law [Local Law 17 § 20-816] requires facilities meeting the definition of a "pregnancy center" to disclose certain information to patients: that New York City Department of Health and Hygiene [official website] advises woman to consult with a licensed medical provider; whether the facility has a licensed medical provider on staff; and whether the facility provides "referrals for abortion, emergency contraception, and prenatal care." The court granted a preliminary injunction holding that such requirements likely infringe on the non-profit facilities' First Amendment [text] rights under a strict scrutiny standard. New York City argued that the law should be held to a lower standard of scrutiny since the restriction was on a form of commercial speech. The city argued that though the facilities operate for a charitable purpose, they provide services and goods with economic value and in return have the opportunity to advocate against abortion and either prevent or delay a decision to terminate a pregnancy." But Judge William Pauley said that just because a facility provides a good or service with economic value does not make it a commercial entity:

the Plaintiffs engage in commercial speech because they are provided with an audience to whom they can espouse their beliefs—is particularly offensive to free speech principles. While Defendants apparently regard an assembly of people as an economic commodity, this court does not. Under such a view flyers for political rallies, religious literature promoting church attendance, or similar forms of expression would constitute commercial speech merely because they assemble listeners for the speaker. Accepting that proposition would permit the Government to inject its own message into virtually all speech designed to advocate a message to more than a single individual and thereby eviscerate the First Amendment's protections.
The lawsuit was brought by a group of non-profit pregnancy facilities represented by the American Center of Law and Justice (ACLJ) [advocacy website]. The ACLJ touted the decision [press release] as a First Amendment win for pro-life advocates.

There are currently several lawsuits challenging state laws placing restrictions on abortions. Earlier this month, the Center for Reproductive Rights (CRR) [advocacy website] filed a motion for a preliminary injunction to block a new Texas requiring a woman to have a sonogram with the doctor describing the fetus in detail before having an abortion. The lawsuit claims that by forcing the physician to deliver government-mandated materials to the patient, it violates the First Amendment rights of both the patient and of the physician. It forces patients to hear what CRR claims is politically-motivated speech before making a decision and forces physicians to deliver unwanted information. Last month, the CRR won a preliminary injunction in the US District Court for the District of Kansas [official website] to block a Kansas regulation [SB36] requiring clinics within the state to obtain a license to perform abortions. Earlier that week, a judge for the US District Court for the District of South Dakota [official website] issued a preliminary injunction [JURIST report] blocking a South Dakota abortion regulation [HB 1217] requiring a 72-hour waiting period.

 

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