Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor of Baltimore

879 F.3d 101
CourtCourt of Appeals for the Fourth Circuit
DecidedJanuary 5, 2018
Docket16-2325
StatusPublished
Cited by15 cases

This text of 879 F.3d 101 (Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor of Baltimore) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor of Baltimore, 879 F.3d 101 (4th Cir. 2018).

Opinion

WILKINSON, Circuit Judge:

A Baltimore City ordinance requires pregnancy clinics that do not offer or refer for abortions to disclose that fact through signs posted in their waiting rooms. The district court held that the law, as applied to appellee, the Greater Baltimore Center for Pregnancy Concerns, Inc., violates the First Amendment’s Free Speech Clause. We affirm. The City has considerable latitude in regulating public health and deceptive advertising. But Baltimore’s chosen means here are too loose a fit with those ends, and in this case compel a politically and religiously motivated group to convey a message fundamentally at odds with its core beliefs and mission.

I.

A.

The Greater Baltimore Center for Pregnancy Concerns is a non-profit Christian organization committed to “providing alternatives to abortion to women who find themselves in the midst of an unplanned pregnancy.” J.A. 360, Operating from rent-free space provided ,by a Catholic Church, the Center provides pregnant women with free services, including counseling, bible study, pregnancy tests, sonograms, and education on child care, life skills, and abstinence. It also provides free prenatal vitamins, diapers, clothing, bpoks, and other assistance. The Center does not charge for its goods or services. In keeping with its religious mission, the Center does not provide or refer for abortions. That fact is clearly stated in a “Commitment of Care” pamphlet available in the Center’s waiting room. J.A. 362, 375.

The Center advertises its pregnancy-related services, but does not expressly broadcast its religious opposition to abortion in those ads. For example, a 2010 campaign on Baltimore' buses touted “FREE Abortion Alternatives,” “FREE Confidential Options Counseling,” “FREE Pregnancy Tests,” and “FREE Services.” J.A. 698. A 2013 spread in the local Penny Saver advertised, among other things, “Pre-natal development information,” “Information about procedures and risks of abortion,” “Bible Study,” and “Post Abortion Counseling & Education.” J.A. 693. The Center is also affiliated with two pro-life- umbrella organizations, Care Net and Heartbeat International, which refer women to their affiliates through national call centers and websites.,

-Concerned that women seeking abortions might b.e misled into visiting pro-life pregnancy centers and delaying the abortion, the Mayor and City Council of Baltimore enacted Ordinance 09-252 on December 4, 2009. The ordinance requires any “limited-service pregnancy center” to post a disclaimer in its waiting room notifying clients that it “does not provide or make referral for abortion or birth-control services.” See Balt. City Health Code §§ 3-501 to 3-506 (2010). Under the ordinance, a “limited-service pregnancy center” means any entity “whose primary purpose is to provide pregnancy-related services” • and which “provides information about pregnancy-related services,” but “does not provide or refer for” abortions or “nondirec-tive and comprehensive” birth control. Id. at § 3-501. The required signs must be “conspicuously posted” and “easily readable” in English- and Spanish. Id. at § 3-502(b).

In the event of a violation, the ordinance authorizes Baltimore City’s Health Commissioner to issue a notice directing an offending pregnancy center to correct the violation. Id. at § 3-503. Failure to comply is punishable by the issuance of a $150 citation. Id. at § 3-506; Balt., Md. City Code Art. I, §§ 40-14, 41-14.

B.

The Center filed suit against the City Council, Mayor Stephanie Rawlings-Blake, and acting Health Commissioner Olivia Farrow in the District of Maryland on March 29, 2010. The suit, brought under 42 U.S.C. § 1983, sought to enjoin enforcement of the ordinance for violating the Center’s First Amendment rights to free speech, assembly, and free religious exercise; the Fourteenth Amendment’s guarantee of equal protection; and Maryland law’s so-called “conscience clause,” Md. Code. Ann., Health-Gen. § 20-214. The Center filed a motion for partial summary judgment on First Amendment grounds supported by an affidavit from its executive director, and the City responded with a motion to dismiss for failure to state a claim. The City also filed a Rule 56(f) affidavit informing the district court that it believed additional discovery was necessary to resolve the case.

The district court granted summary judgment for the Center. It held that the ordinance violated the Free Speech Clause because it was not narrowly tailored to accomplish a compelling government interest. O’Brien v, Mayor & City Council of Baltimore, 768 F.Supp.2d 804, 808 (D. Md. 2011). A panel of this court affirmed that decision on appeal. Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Baltimore, 683 F.3d 539 (4th Cir. 2012).

Rehearing the case en banc, the court vacated the' district court’s judgment and remanded for further proceedings. Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Baltimore, 721 F.3d 264 (4th Cir. 2013) (en banc). The court concluded that discovery was needed to determine the Center’s economic motivation, the scope and content of its advertisements, the effect of the ordinance, and “evidence substantiating the efficacy of the Ordinance in promoting public health, as well as evidence disproving the effectiveness of purported less restrictive alternatives to the Ordinance’s disclaimer.” Id. at 285-88.

On remand, the parties conducted extensive discovery and filed cross-motions for summary judgment. The City objected to some discovery limitations below, but does not raise that issue on appeal. As it acknowledges, “[t]he evidence that the City was able to gather through discovery is more than sufficient” to decide this case. Appellant Opening Br. 17.

The district court held that the ordinance, as applied, to the Center, violated the First Amendment right to freedom of speech. J.A. 1243. First, it concluded “that the Ordinance is a content-based regulation that regulates noncommercial speech, or, at the least, that the Center’s commercial and professional speech is intertwined with its noncommercial speech, and [the ordinance] is thus subject to strict scrutiny.” J.A. 1256. Second, the district court determined that the record failed to demonstrate that the ordinance furthers a compelling government interest because “there is insufficient evidence to demonstrate that' deception actually takes place and that health harms are in fact being caused by delays resulting from deceptive advertising.” J.A. 1280. Finally; the court concluded that the ordinance is not narrowly tailored because it applies to pregnancy centers “regardless of whether they advertise nonfraudulently or do not advertise at all.” J.A. 1286.

This appeal followed. We review the grant of a motion for summary judgment de novo. See Desmond v. PNGI Charles Town Gaming, L.L.C., 564 F.3d 688, 691 (4th Cir. 2009).

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879 F.3d 101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greater-baltimore-center-for-pregnancy-concerns-inc-v-mayor-of-baltimore-ca4-2018.