S.D.N.Y.: Enjoins NYC law requiring disclosure of abortion referrals

A New York City ordinance which requires “pregnancy services centers” to make mandatory disclosures, including whether they provide referrals for abortion, has been enjoined by the district court for violating First Amendment speech rights.   Evergreen Ass’n, Inc. v. City of New York, 2011 WL 2748728 (S.D.N.Y., July 13, 2011)(Nos. 11 Civ. 2055, 2342). Judge William Pauley, III (Clinton) delivered the opinion of the court.

New York City’s Local Law No. 17 imposed fines on pregnancy service centers that failed to disclose: that the state Department of Health and Mental Hygiene encourages women who are pregnant to visit a licensed medical provider; whether the facility has a licensed medical provider on staff; and whether the facility provides referrals for abortions, emergency contraception, or prenatal care.  The ordinance also gave authority to the city to temporarily “seal” facilities for repeated violations.  The plaintiffs were facilities that operate in New York City and provide free pregnancy-related services, such as pregnancy testing, ultrasounds, and counseling. The court found that the plaintiffs showed irreparable harm and a likelihood of success on the merits of their claim that the ordinance violated their First Amendment free speech rights.

The plaintiffs showed that the ordinance would compel them to speak certain messages or face significant fines and/or closure of their facilities. Accordingly, the court held that the ordinance was a direct limitation on speech that warranted a presumption of irreparable harm to the plaintiffs’ First Amendment rights.

The defendants argued that intermediate scrutiny was appropriate because the ordinance targeted commercial speech.  The city contended that the plaintiffs advertised goods and services that had commercial value, such as diapers, counseling, pregnancy testing, and ultrasounds.  In addition, the plaintiffs received something of value, “the opportunity to advocate against abortion and either delay or prevent the decision to terminate a pregnancy,” in exchange for their goods and services.

The court strongly rejected both arguments, stating that the defendants’ overbroad definition of commercial speech would “upend established free speech protections.”  If an organization proposed a commercial transaction each time it offered a good or services, any religious congregation offering communion wine and any domestic violence shelter providing housing would find their speech subject to diminished constitutional protection.

In addition, the court found the defendant’s argument that the plaintiffs engage in commercial speech because they are provided an audience to whom they can espouse their beliefs, to be “particularly offensive to free speech principles.”  It held that treating an assembly of people as a commodity would turn political rally fliers and religious pamphlets into commercial speech that “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.”

Holding the ordinance to strict scrutiny, the court found that the city has a compelling interest in preventing deceptive practices generally, but Local Law No. 17 was not narrowly tailored to that interest.  The court agreed that “unlicensed ultrasound technicians operating in pseudo-medical settings” could create significant harms to pregnant, at-risk women who believe they are receiving medical care, but also held that  Local Law No. 17 is not the least restrictive means of addressing deceptive practices. The ordinance burdens the plaintiffs by increasing their advertising costs while altering the tenor of their advertisements by “drowning the intended message in the City’s preferred admonitions.”  In addition, the city conceded that only a sign outside of the premises, in English and Spanish, would be enough to alert clients that medical services were not available in the facility.  Further, the city could post its own signs on public property outside of the facilities that would not restrict the plaintiff’s speech rights.

The court also found that the ordinance is over-inclusive because it affects the speech of facilities that do not engage in deceptive practices.  The court noted that the city could impose licensing requirements on ultrasound technicians, which would allow it to regulate the manner in which those examinations are conducted and curb any manipulative use.

Finally, the court held that the definition of “pregnancy service centers” which included having the “appearance of a licensed medical facility” and listed several non-exclusive factors of such “appearance” was unconstitutionally vague.  The court found that the “fundamental flaw” is that the enumerated factors are only “among” those to be considered by the Commissioner, and do not minimize the possibility of arbitrary enforcement by the city.

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