Evergreen Ass’n, Inc. v. City of New York, — F.3d —-, 2014 WL 184993 (2d Cir. 2014)
The City appealed from a preliminary injunction against Local Law 17, which required pregnancy services centers to make certain disclosures about their services. On appeal, the court concluded that the law wasn’t impermissibly vague in its definition of pregnancy centers. Further, plaintiffs didn’t show likely success on the merits as to the portion of the law requiring pregnancy services centers to disclose if they have a licensed medical provider on staff. However, other aspects of the law impermissibly compelled speech.
The law required pregnancy centers to disclose, at their entrances and waiting rooms, on advertisements, and during telephone conversations:
(1) whether or not they “have a licensed medical provider on staff who provides or directly supervises the provision of all of the services at such pregnancy service center”;
(2) “that 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”; and
(3) whether or not they “provide or provide referrals for abortion,” “emergency contraception,” or “prenatal care.”
The law defined a “pregnancy services center” as a “facility, … the primary purpose of which is to provide services to women who are or may be pregnant, that either (1) offers obstetric ultrasounds, obstetric sonograms or prenatal care; or (2) has the appearance of a licensed medical facility.” It provided a nonexclusive list of factors for consideration in determining whether a facility “has the appearance of a licensed medical facility,” and stated that it was “prima facie evidence that a facility has the appearance of a licensed medical facility if it has two or more of the factors.” Finally, the law exempted facilities that are “licensed … to provide medical or pharmaceutical services” or have a licensed medical provider on staff.
The NYC Council heard testimony about the need for such disclosures to avoid misleading women. Several people testified about misleading practices by crisis pregnancy centers (CPCs), including that they’re often intentionally located in proximity to Planned Parenthood facilities and that they often use misleading names and signage. One women’s health center director testified about a CPC that would “park a bus in front of her clinic, from which the CPC’s counselors, often wearing scrubs, would offer ultrasounds, harass Center patients, tell patients that the Center was closed, or identify themselves as Center workers.” An official from the Department of Health and Mental Hygiene testified that delay in prenatal care posed risks to women and newborns, and that delays in access to abortion and emergency contraception were risky. Testimony discussed patients who’d been misled by CPCs, leading to delays in access to services, e.g.:
One woman scheduled an appointment for an abortion at an organization that, as she learned upon arrival, was a CPC. Another works at a grocery store and had to negotiate with both her boss and one of her co-workers to get the day off so she could go to the clinic and have the abortion that she and her husband had together decided was best. When she realized she had gone to a place that wasn’t going to provide the service she needed, that she had wasted her day off, lost the income she could have had that day working, and that it would be without purpose, and that it might be three weeks before she could get another day off to try this again, she was outraged.
Another patient went to a CPC and was told that she needed multiple ultrasounds before the abortion could be done.
Though these were medically unneccessary, they delayed her so long that she went beyond the legal limit for abortion.
Testimony indicated that this was not an isolated incident.
A
NARAL Report summarized NARAL’s website analysis, phone survey, in-person visits, and review of literature distributed by CPCs: “many CPCs use medical sounding names, are located near medical clinics and hospitals, provide pregnancy testing and ultrasounds, and require patients to fill out detailed forms soliciting personal information, all of which creates the impression that the CPCs are medical facilities. Several counselors NARAL spoke with gave incorrect information as to how long a woman can legally wait before getting an abortion.”
Opponents also testified that their CPCs didn’t mislead patients. The Council found that “some pregnancy services centers engaged in deceptive practices about their services; that these deceptive practices could impede or delay consumer access to reproductive health services and wrongly lead consumers to believe they had received care from a licensed medical provider; and that existing laws did not adequately protect consumers from these deceptive practices.” It further found that delay increases health risks and financial burdens and may severely limit a woman’s options. The Council stated that it enacted the law to ensure that “consumers in New York City have access to comprehensive information about and timely access to all types of reproductive health services including, but not limited to, accurate pregnancy diagnosis, prenatal care, emergency contraception and abortion.”
Some of the plaintiff CPCs offered ultrasounds and sonograms; others didn’t. Most provided their services free of charge, except for one that offers services to women housed at its residential facilities. They objected to the law on First Amendment compelled speech grounds.
The court first found the law severable, and then the majority found that the definition of “pregnancy services center” was not unconstitutionally vague, given the overall definition plus objective guiding factors. (These were: “the pregnancy services center (a) offers pregnancy testing and/or pregnancy diagnosis; (b) has staff or volunteers who wear medical attire or uniforms; (c) contains one or more examination tables; (d) contains a private or semi-private room or area containing medical supplies and/or medical instruments; (e) has staff or volunteers who collect health insurance information from clients; and (f) is located on the same premises as a licensed medical facility or provider or shares facility space with a licensed medical provider.”)
The court then found that each challenged provision either stood or fell under both strict and intermediate scrutiny, so it didn’t have to pick a level of scrutiny, despite the parties’ arguments about regulating medicine etc. In a footnote, however, the court rejected the argument that rational basis review applied because these were disclosures, not speech bans, applied to commercial speech. Even assuming the speech was commercial, the law didn’t regulate “purely factual and uncontroversial information,” as required to apply rational basis review. (This is why “uncontroversial” is a ridiculous standard. It’s uncontroversial that these facilities don’t provide abortion information; indeed, they’d rather not admit that abortion information exists, because the topic of abortion is controversial. But any speaker resisting a disclosure mandate will not want to admit that the information is relevant, making it controversial no matter how factual the information is.)
Anyway, the status disclosure (whether a licensed medical provider was on site) passed strict scrutiny, while the others failed even intermediate scrutiny. The City had a compelling interest in passing the law, to prevent delays in access to reproductive health services. “[T]he State has a strong interest in protecting a woman’s freedom to seek lawful medical or counseling services in connection with her pregnancy.”
The status disclosure was narrowly tailored to promote this compelling government interest, using the least restrictive means. The Supreme Court suggested in Riley v. Nat’l Federation of the Blind that a requirement that solicitors disclose their professional status would be narrowly tailored to the state’s interest in “informing donors how the money they contribute is spent in order to dispel the alleged misperception that the money they give to professional fundraisers goes in greater-than-actual proportion to benefit charity.” Here, invalidating the status disclosure “would deprive the City of its ability to protect the health of its citizens and combat consumer deception in even the most minimal way.” It was the least restrictive means “to ensure that a woman is aware of whether or not a particular pregnancy services center has a licensed medical provider at the time that she first interacts with it.”
The alternatives of city-sponsored ads or signs posted outside CPCs, prosecuting fraud and false advertising, and imposing licensing requirements on ultrasound professionals wouldn’t get the job done. “City-sponsored advertisements and signs cannot alert consumers as to whether a particular pregnancy services center employs a licensed medical provider, because, among other things, this is discrete factual information known only to the particular center.” Fraud/false advertising claims pursued after the fact could be too late for women’s health, and licensing wouldn’t alert consumers to the status of a CPC unless the licensing scheme itself mandated disclosure. Plus, not all regulated centers offered ultrasounds.
Nor was the law overly broad. The district court found the law overinclusive because not all CPCs engage in deception. But that wasn’t the only problem the City sought to solve—the law “seeks to prevent woman from mistakenly concluding that pregnancy services centers, which look like medical facilities, are medical facilities, whether or not the centers engage in deception.” The law applied to centers that looked like medical facilities. As with the law suggested in Riley, “the laws in question support the state interest in informing consumers and combating misinformation.” The court noted that its result was consistent with Centro Tepeyac v. Montgomery County, 779 F.Supp.2d 456 (D. Md. 2011), rev’d in part, 683 F.3d 591 (4th Cir. 2012), rev’d en banc, 722 F.3d 184 (4th Cir. 2013). As Judge Wilkinson stated in his concurrence in Centro Tepeyac:
[I]n exercising its broad police power to regulate for the health and safety of its citizens, the state must also enjoy some leeway to require the disclosure of the modicum of accurate information that individuals need in order to make especially important medical … decisions…. [The Status Disclosure] relies on the common-sense notion that pregnant women should at least be aware of the qualifications of those who wish to counsel them regarding what is, among other things, a medical condition.
The other disclosures didn’t fare so well. First, the service disclosure required pregnancy services centers to disclose whether or not they provide or provide referrals for abortion, emergency contraception, or prenatal care. Though the suggested alternatives (state-sponsored ads, prosecutions for fraud and false advertising, etc.) were insufficient, the status disclosure by itself might satisfy the City’s interest, “as it alerts consumers to a small bit of accurate information about the type of services each center provides—medical or non-medical—even though it does not discuss specific services.”
Even absent less restrictive means, the services disclosure was too much of a burden on plaintiffs’ speech in the context of “a public debate over the morality and efficacy of contraception and abortion.” This would alter their political speech “by mandating the manner in which the discussion of these issues begins.” “Because it mandates discussion of controversial political topics, the Services Disclosure differs from the ‘brief, bland, and non-pejorative disclosure’ required by the Status Disclosure.” Intermediate scrutiny wouldn’t produce a different result given the political nature of the speech and the status disclosure as a less restrictive alternative.
So too with the government message requiring pregnancy services centers to disclose that “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.” Here, the status disclosure could satisfy the government’s interest, as could an ad campaign by the government. “The City’s broad message does not require knowledge of discrete information available only to individual pregnancy services centers.” Also, the centers shouldn’t have to advertise on behalf of the city, since the question of whether “pregnant women should see a doctor” is a “public issue subject to dispute,” as this very litigation demonstrated. (See what I mean about controversiality?) Though the regulation made clear that the message came from the government, “a law that requires a speaker to advertise on behalf of the government offends the Constitution even if it is clear that the government is the speaker.” See Wooley v. Maynard, 430 U.S. 705 (1977).
Judge Wesley dissented in part, finding the definition of pregnancy services centers too vague:
It contains a deliberately ambiguous set of standards guiding its application, thereby providing a blank check to New York City officials to harass or threaten legitimate activity.…The operators of such a center have no way of knowing whether the Commissioner will penalize them for failing to comply with the law’s requirements even if the center exhibits no other characteristics similar to a medical facility; the context of the law raises the troubling possibility of arbitrarily harsh enforcement against such centers that choose not to tell women about the option of abortion.
Rebecca Tushnet 