NEW YORK—In New York City, 41 percent of pregnancies end in abortion, a rate almost twice the national average. On Friday the city defended its law targeting pregnancy resource centers that attempt to provide pregnant women with an option that isn't abortion.
A District Court placed a temporary ban on the law in July, a ruling the city appealed to the 2nd U.S. Circuit Court of Appeals, which heard arguments on the case Friday. Attorneys involved in the arguments say the case, along with others like it elsewhere, will likely head to the U.S. Supreme Court.
The city law that New York City Mayor Michael Bloomberg signed in March 2011 would require pregnancy resource centers to post signs saying the centers are not licensed medical facilities and whether they provide abortions or abortion referrals. For violations, the centers would face fines ranging from $200 to $2,000 and closure for three or more separate violations in one year. The city justified passing the law by saying some centers had engaged in deceptive practices on what services they offered, based off testimony from groups like NARAL Pro-Choice America.
But the law has been put on hold. In July a District judge issued a preliminary injunction against the law, saying it was a "direct limitation on speech." (See "Protecting the protectors," by Jamie Dean, July 14, 2011.) Also, because the city gave very little definition of what it considered a "pregnancy services center," U.S. District Judge William Pauley said the "risk of discriminatory enforcement is high."
At least one 2nd Circuit judge on the three-judge panel that will decide the fate of the law clearly sided with the District judge and the pregnancy center attorneys. "The point is that this is forced speech," said U.S. Circuit Judge Richard Wesley. "Suddenly [pregnancy centers] have to tell [clients] the other side of the argument."
None of the three judges was impressed with the evidence of the pregnancy centers' "deception" that the city provided in justifying the law. For example, the city presented a pregnancy center ad it considered deceptive: The ad said the center offered "abortion alternatives."
"Abortion alternatives could mean alternative procedures," said the city's lawyer, Mordecai Newman. "It is unclear what is being offered."
One of the pregnancy center lawyers, James Henderson of the American Center for Law and Justice, said if a pregnancy center was deceptive, the city could prosecute it under existing anti-fraud laws.
"All of us are concerned about the lack of supporting data," said U.S. Circuit Judge Rosemary Pooler, who nevertheless seemed to side with the city.
Newman, the city's lawyer, said the law addressed pregnancy centers' messages that could affect "a population that is often young … often not well educated."
"This is so broad it captures any kind of speech that borders on puffery," said Judge Wesley. "You direct this at anyone who could misperceive something. … Is this directed at misperception as opposed to deception?"
U.S. Circuit Judge Raymond Lohier jumped in, too. "I would caution you here," he told the city's lawyer.
"I'm saying the issue is how is someone who is perhaps young, perhaps unsophisticated, likely to understand an ambiguous sign," Newman said.
Wesley asked whether locating a pregnancy center in the same building as a medical office, even if five floors separated them, would be deceptive.
"It might be, it might not be," said Newman.
"Well, you're representing the city," said Wesley.
"The city looked to proximity, yes," said Newman.
The judges proceeded to ask Newman whether a certain group might fall under the law—he said "probably."
"When you say 'probably,' the 'probably' is why we're here," said Judge Lohier.
"We're assuming a commissioner will behave within the spirit of the guidelines," said Newman.
If the arguments were a guide, at least two of the judges seemed skeptical of the government's arguments. But courts are notoriously unpredictable. Because the law is under a preliminary injunction, the litigants expect a decision in a month or two—warp speed for the legal system.
The 4th U.S. Circuit Court of Appeals recently ruled on a similar law in Maryland, deciding in favor of the pregnancy centers. Another similar case is pending in Texas. If various circuit courts issue conflicting rulings on the pregnancy center laws, the Supreme Court is very likely to take the cases down the road.