The 2nd U.S. Circuit Court of Appeals on Jan. 17 upheld a portion of a lower federal judge's decision to toss the city law, but the appeals court reinstated a portion of the law that requires centers to disclose whether they have medical personnel on staff. The appeals court erred in upholding the third provision, said ADL Senior Legal Counsel Matt Bowman, who argued the case before the 2nd Circuit on behalf of two pregnancy centers and a maternity home.
"The appeals court rightly affirmed that the city cannot force pregnancy centers to communicate some city-crafted messages that encourage women to go elsewhere, but the court left one provision in place that still does that," Bowman said in a press release on the ADF's website. "Because this type of compelled speech is not constitutional, we are considering our options for appeal regarding the remaining provision of New York City's ordinance."
The appeals court's three-judge panel agreed with a 2011 district court ruling that struck down portions of the law requiring centers to notify women whether the center offers abortions, to tell women whether a center has licensed medical providers on staff and to encourage women to consult with medical providers.
"The district court's order kept the city from enforcing the totality of its anti-speech ordinance, which some city officials designed to deter women from receiving the help they need to make fully informed choices about their pregnancy," Bowman said. "The 2nd Circuit reinstated one provision of the ordinance but did not provide any clarity as to whom it applies and when the city's language must be recited. The district court was right about the vagueness of the entire ordinance. It should be completely invalidated."
The 2nd Circuit ruled the law's requirement to inform women that the center does not offer abortions "requires centers to mention controversial services that some pregnancy services centers, such as plaintiffs in this case, oppose."
The ruling continued: "A requirement that pregnancy services centers address abortion, emergency contraception, or prenatal care at the beginning of their contact with potential clients alters the centers' political speech by mandating the manner in which the discussion of these issues begins. … The centers must be free to formulate their own address."
The appeals court also struck a provision that centers post a sign saying "the New York City Department of Health and Mental Hygiene encourages women who are or who may be pregnant to consult with a licensed provider." The court said if the city wanted to get that message across, it could do so through its own ad campaign, not through pregnancy centers.
ADF is concerned about another part of the appeals court ruling. The lower judge had ruled that the city's definition of a pregnancy center was too vague. The 2nd Circuit said the definition of a center -- which amounts to any counseling center that looks medical -- was fine. One of the judges, in a concurring opinion that dissented from that part of the ruling, said the definition was a "bureaucrat's dream," because city officials could enforce the regulation on whomever they wanted. Bowman agreed.
"The city can decide to persecute pro-life centers just because they don't like the way they look," Bowman said.
ADF has until Jan. 31 to decide whether to appeal that part of the three-judge panel's decision to a full panel of the 2nd Circuit. Newly elected New York City Mayor Bill de Blasio has said he, like his predecessor Michael Bloomberg, supports the city law and would pursue appeals if it was struck down.
The case was argued back in 2012, but the 2nd Circuit often takes time to deliver its rulings because it's one of the busiest appeals courts in the country.
The case stems from an appeal by the City of New York of a 2011 federal court order prohibiting the city from enforcing the ordinance that threatened non-medical, pro-life pregnancy services centers with heavy fines and possible closure if they didn't provide posted, printed and oral notices crafted by the city that would have encouraged women to go elsewhere. The ADF had charged in a lawsuit that the city ordinance was unconstitutional.
Launched in 1994, the ADF describes itself as "a legal alliance of Christian attorneys and like-minded organizations defending the right of people to freely live out their faith."
Compiled by Diana Chandler, general assignment writer/editor for Baptist Press, including reports from the WORLD News Service. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress) and in your email (baptistpress.com/SubscribeBP.asp).
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