Two Maryland pregnancy resource centers went back to court last week to fight laws requiring them to post government-mandated warnings about their services.
In both cases, three-judge panels of the 4th U.S. Circuit Court of Appeals sided with the pregnancy resource centers earlier this year, ruling ordinances passed by Montgomery County and the City of Baltimore violated the centers’ right to free speech. But both the city and the county requested a rehearing, and the court agreed.
It is unusual for a federal appeals court to vacate its own decision and reconsider a case. Although courts do not say why they decide to rehear arguments, the judges might want to reverse the earlier decision. But they might also want to reaffirm the decision for different reasons.
Both cases involve ordinances requiring pregnancy resource centers to post notices in their waiting rooms. In Montgomery County, the signs tell clients the center does not have a licensed medical professional on staff. The signs also must say county health officials recommend women who are or might be pregnant visit a doctor.
Lawyers for Centro Tepeyac, a Catholic-run facility offering advice on abortion alternatives, argue the signs violate the center’s First Amendment rights by forcing it to convey the government’s message, which essentially warns women away from the centers. Lawyers also argue the ordinance violates the U.S. Constitution by targeting a specific organization—only pro-life pregnancy resource centers must post the warnings.
The District Court judge ruled the county could require a notice about licensed medical professionals but could not force the center to tell its clients to visit a doctor. The 4th Circuit panel struck down both parts of the ordinance, ruling even factual statements about staffing could imperil free speech.
During the second round of oral arguments on Dec. 6, the full 4th Circuit—12 judges—appeared divided on what carried greater weight: the county’s interest in regulating health and safety or the court’s duty to protect free speech.
Arguing on the county’s behalf, attorney Clifford Royalty equated the ordinance to laws requiring abortion providers to give women health-related information, requirements championed by pro-life advocates.
“This regulation simply requires factual information, it does not require pregnancy centers to adopt any kind of ideological message,” he said. “The sign is on the wall. … Centro Tepeyac can continue to provide confidential counseling to their patients, and they don’t have to utter a government message while they’re counseling their patients. It doesn’t interfere with their patient relationship at all.”
But Mark Rienzi, an attorney with Alliance Defending Freedom and a law professor at Catholic University of America’s Columbus School of Law, insisted the law unfairly targets pregnancy resources centers based on the content of their message. If the center counseled clients about any other kind of health-related issue, including drugs or heart health, they would not be required to post a sign.
“They talk about one subject that triggers it: pregnancy,” he said. “It’s clearly content based. What it does, is it forces the women at Centro Tepeyac to start every interaction they have with someone by saying, ‘Let me tell you how I’m not qualified and that the government thinks you ought to talk to somebody else.’”
Although the case focuses only on the law’s application to pregnancy resource centers, several of the judges speculated it might apply to churches whose pastors or priests counsel women about their pregnancies.
The ordinance passed by the City of Baltimore requires pregnancy resource centers to post signs telling clients they do not offer abortions or contraceptive drugs or referrals for those services. The District Court struck it down as an unconstitutional infringement on free speech.
Pregnancy resource centers in Austin, Texas; San Francisco; and New York also have gone to court to fight similar ordinances. In all cases, so far, judges have sided with the pregnancy centers. But the issue likely will end up at the U.S. Supreme Court, especially if the appeals courts issue conflicting rulings.
If the courts allow the ordinances to stand, it would represent a significant blow to free speech protections, said Matt Bowman, an attorney with Alliance Defending Freedom working on the Montgomery County case.
“The important thing to remember is that there is no case anywhere that has ever allowed the government to force someone to speak when they’re not selling anything, and not a licensed doctor or the like, but only want to talk about an issue like life and pregnancy,” he said. “A case that allows the government to force people to say things for the sole reason that they want to talk about an issue would have no limits on what the government could do.”