Justices' ruling likely kills Baltimore's abortion-sign law

City's controversial ordinance was enjoined pending high court's resolution

By Steve Lash
BridgeTower Media Newswires

BALTIMORE - A sharply divided U.S. Supreme Court on Tuesday likely killed a Baltimore ordinance that required pregnancy centers opposed to abortion and artificial birth control to notify patients the facilities do not offer services for terminating or preventing pregnancies.

In a 5-4 decision, the high court struck down as unconstitutional a similar California law that requires pregnancy centers to notify patients the state offers abortion and contraceptive services. The justices held the law compelling notification violated the centers' right to free speech.

The high court rendered its decision as Baltimore's appeal of a lower-court decision that the city ordinance is similarly unconstitutional is pending before the justices.

The high court was likely holding Baltimore's appeal in abeyance pending its decision in the California case, National Institute of Family and Life Advocates v. Becerra, No. 16-1140, and could now simply decline to hear the city's appeal.

Baltimore's controversial ordinance, which has been enjoined pending a Supreme Court resolution, requires "limited-service pregnancy centers," such as Greater Baltimore Center for Pregnancy Concerns Inc., to post conspicuously in their waiting rooms signs stating in English and Spanish that the facilities do not provide or make referral for abortion or birth-control services. Failure to comply with the ordinance can result in a civil fine.

The Baltimore city solicitor's office, which has mounted the high-court appeal, declined to issue a statement on the Supreme Court's decision in Becerra.

But the board chairman of the Greater Baltimore Center for Pregnancy Concerns - a Christian-based facility challenging the ordinance hailed the high court's free-speech ruling.

"It's a principle that we have believed in since the Baltimore ordinance was passed," Thomas Schetelich said. "It's a matter of First Amendment protection. It allows people to seek help where they choose to and for us to be able to offer the help that we do without having to compromise our core beliefs."

Schetelich is a partner at Baltimore-based Ferguson, Schetelich & Ballew P.A., which represented the center in its legal challenge. He said he expects the Supreme Court will decline to hear the city's appeal in light of its ruling on the California law.

The Greater Baltimore Center for Pregnancy Concerns operates in buildings owned by the Catholic Church. The center said it provides free pregnancy-related services and counseling to 1,200 women annually, but for religious reasons will neither provide nor refer patients for abortions or particular methods of birth control.

The Baltimore City Council passed the ordinance in 2009, and the Archdiocese of Baltimore sued the city the following year. A federal judge ruled in favor of the plaintiffs, including the Greater Baltimore Center for Pregnancy Concerns, in January 2011, preventing the city from enforcing the law. The city appealed, and the 4th U.S. Circuit Court of Appeals then remanded the case for procedural reasons.

U.S. District Judge Marvin J. Garbis subsequently struck down the ordinance on constitutional grounds, prompting the city's appeals to the 4th Circuit and Supreme Court.

The case is docketed at the Supreme Court as Mayor and City Council of Baltimore v. Greater Baltimore Center for Pregnancy Concerns Inc., No. 17-1369.

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'Paradigmatic example'

Justice Clarence Thomas, in writing for the Supreme Court's slim majority, called the California law an unconstitutional "content-based regulation of speech" in that it required clinics to provide "a government drafted script" about state-sponsored services.

"One of those services is abortion the very practice that petitioners are devoted to opposing," Thomas wrote. "By requiring petitioners to inform women how they can obtain state-subsidized abortions at the same time petitioners try to dissuade women from choosing that option the licensed notice plainly alters the content of petitioners' speech."

Thomas said California remains free to mount its own public-service campaign to notify Californians that the state provide abortion and contraceptive services.

Thomas was joined in the opinion by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Samuel A. Alito Jr. and Neil M. Gorsuch.

Kennedy, in a concurring opinion, called the California law "viewpoint discrimination" in violation of the First Amendment.

"This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression," wrote Kennedy, who was joined by Roberts, Alito and Gorsuch. "For here the state requires pro-life pregnancy centers to promote the state's own preferred massage advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these."

Added Kennedy: "Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties."

NIFLA appealed a lower-court ruling rejecting its request for a preliminary injunction blocking enforcement of the law. The 9th U.S. Circuit Court of Appeals called it unlikely that NIFLA would prevail in its First Amendment challenge, a decision the Supreme Court reversed.

Justice Stephen G. Breyer, in dissent, said the California law is akin to Pennsylvania's state-mandated notice on the health risks of abortion and the availability of adoption services that the high court upheld in 1992 as a reasonable means to ensure women have an informed choice in Planned Parenthood of Southeastern Pennsylvania v. Casey.

"If a state can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive healthcare about childbirth and abortion services?" Breyer wrote. "As the question suggests, there is not convincing reason to distinguish between information about adoption and information about abortion in this context. After all, the rule of law embodies evenhandedness, and what is sauce for the goose is normally sauce for the gander."

Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor joined Breyer's dissent.

Published: Thu, Jun 28, 2018

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