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Appeals Court Partially Reinstates NYC Crisis Pregnancy Center Disclosure Law

January 22, 2014 — A federal appeals court on Friday reversed part of a ruling that barred New York City from enforcing a law that requires crisis pregnancy centers to disclose more information about their services, the AP/Wall Street Journal reports (AP/Wall Street Journal, 1/17).

Background

The law requires CPCs to disclose whether they offer abortion services, emergency contraception and prenatal care or refer for such services. Under the law, the information must be posted in English and Spanish in the centers and in advertisements. The law also requires CPCs to disclose whether they have a licensed medical provider on site.

After two CPCs challenged the law, Manhattan Federal Judge William Pauley in July 2011 temporarily blocked it from taking effect, saying it is "offensive to free speech principles." He wrote that the city's definition of commercial speech was too broad. He also said that because the law "relates to the provision of emergency contraception and abortion -- among the most controversial issues in our public discourse -- the risk of discriminatory enforcement is high" (Women's Health Policy Report, 7/14/11).

Appeals Court Ruling

In a 2-1 decision, a three-judge panel of the 2nd U.S. Circuit Court of Appeals said the lower-court judge went too far in rejecting the law as a whole and restored the requirement that CPCs disclose whether a licensed medical provider is working at the facility.

They noted that without such abilities, the city would be deprived "of its ability to protect the health of its citizens and combat consumer deception in even the most minimal way."

In the majority opinion, Judge Rosemary Pooler wrote that the city has a compelling interest in ensuring consumers understand what services the centers offer. She noted that officials passed the law only after hearing testimony about CPCs using misleading practices, poor patient experiences and potential delays in access to reproductive care.

She also noted that testimony showed that CPCs are often located near Planned Parenthood facilities and have misleading names and signs.

Other Provisions Likely Unconstitutional, Judges Say

The judges said other components of the law -- such as a requirement that CPCs disclose whether they would refer women for abortions, emergency contraception or prenatal care -- likely are unconstitutional (AP/Wall Street Journal, 1/17).

They also declined to reinstate another aspect of the law requiring CPCs to post signs stating 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]."

In a partial dissent, Judge Richard Wesley wrote that while the "city has an interest in preventing impostors from posing as healthcare workers and in making sure that misinformation is not directed at a vulnerable class of poor or uninformed women," it "does not have a right to sweep all those who, for faith-based reasons, think that abortion is not the right choice in with those who would defraud or intentionally mislead women making this important and personal decision."

Reactions

City Council Speaker Melissa Mark-Viverito said the ruling is a partial win. "While we are disappointed that the Second Circuit struck down some disclosure requirements for Pregnancy Service Centers, the provision that was upheld will help to protect pregnant women across the five boroughs."

Lawyers from Alliance Defending Freedom, which represented the two CPCs, said in a statement that they are "evaluating their options for appeal" (Klasfeld, Courthouse News, 1/20). Meanwhile, the American Center for Law & Justice, whose lawyers argued against the law, in a statement said it is pleased that "serious constitutional flaws" in the law were recognized but is disappointed that some parts were revived (AP/Wall Street Journal, 1/17).