Tepeyac v. Montgomery Cnty.

• Decision Date: 26 March 2014
• Docket Number: Civil Action No. DKC 10–1259.
• Citation: 5 F.Supp.3d 745
• Court: U.S. District Court — District of Maryland
• Parties: Centro TEPEYAC v. MONTGOMERY COUNTY, et al.

5 F.Supp.3d 745

Centro TEPEYAC

v.MONTGOMERY COUNTY, et al.

Civil Action No. DKC 10–1259.

United States District Court,

D. Maryland.

Filed March 7, 2014.

Opinion Denying Reconsideration March 26, 2014.

John R. Garza, Garza Regan and Associates PC, Robert R. Michael, Shadoan Michael and Wells LLP, Rockville, MD, Mark Leonard Rienzi, Columbus School of Law, Matthew Scott Bowman, Michael Casey Mattox, Steven Henry Aden, Alliance Defense Fund, Washington, DC, for Centro Tepeyac.

Clifford L. Royalty, Patricia P. Via, Rockville, MD, for Montgomery County, et al.

MEMORANDUM OPINION

DEBORAH K. CHASANOW, District Judge.

Presently pending and ready for resolution in this action arising under the First and Fourteenth Amendments are the motion for summary judgment filed by Plaintiff Centro Tepeyac (“Centro Tepeyac”) (ECF No. 68) and the cross-motion for summary judgment filed by Defendants Montgomery County and Montgomery County Council (collectively, “the County”) (ECF No. 70). The issues are fully briefed and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the reasons that follow, the Plaintiff's motion will be granted in part and the County's motion will be denied.

I. BackgroundA. Factual Background

On February 2, 2010, the Montgomery County Council passed Resolution Number 16–1252 (“the Resolution”). The Resolution requires “Limited Service Pregnancy Resource Centers” (“LSPRCs”) to make certain disclaimers. (ECF No. 48–5). An LSPRC is defined as any “organization, center, or individual” that “(A) has a primary purpose to provide pregnancy-related services; (B) does not have a licensed medical professional on staff; and (C) provides information about pregnancy-related services, for a fee or as a free service.” ( Id. at 2). The Resolution further defines “licensed medical professional on staff” as “one or more individuals” who:

(A) are licensed by the appropriate State agency under Title 8, 14, or 15 of the Health Occupations Article of the Maryland Code;

(B) provide medical-related services at the center by either:

(i) providing medical services to clients at the Center at least 20 hours per week; or

(ii) directly overseeing medical services provided at the Center; and

(C) are employed by or offer services at the Center.

( Id.).

The Resolution obligates any LSPRC to post a sign in its waiting room that reads: (1) “the Center does not have a licensed medical professional on staff”; and (2) “the Montgomery County Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider”. ( Id.). The sign must be easily readable, written in English and Spanish, and “conspicuously posted in the Center's waiting room or other area where individuals await service.” ( Id.). Violation of the Resolution is a Class A civil violation. ( Id.). The Resolution may be enforced by a court action initiated by the County Attorney or a citation issued by the Department of Health and Human Services. ( Id. at 3).

The background section of the Resolution states that the County passed the Resolution after holding a public hearing on December 1, 2009, and concluding that “a disclaimer for certain pregnancy resource centers [was] necessary to protect the health of County residents.” ( Id. at 1). In particular, the County expressed concern that:

clients may be misled into believing that a Center is providing medical services when it is not. Clients could therefore neglect to take action (such as consulting a doctor) that would protect their health or prevent adverse consequences, including disease, to the client or the pregnancy.

( Id.). A similar sentiment was expressed in a January 29, 2010 memorandum to the County Council from Amanda Mihill, a legislative analyst for the County (“Mihill Memorandum”):

The Council is primarily concerned with ensuring that a pregnant woman is not led to mistakenly believing that an LSPRC is staffed by professionals licensed to give medical advice to patients. Women who believe they are receiving advice from medical professionals may not take important steps, including consulting appropriate medical professionals, which would protect their health or prevent adverse consequences during the pregnancy.(ECF No. 48–6, at 2). The Mihill Memorandum cited two studies to support this view, including a July 2006 report by the Minority Staff of the United States House of Representatives Committee on Government Reform entitled “False and Misleading Health Information Provided by Federally Funded Pregnancy Resource Centers.” (“Waxman Report”). The Mihill Memorandum cited the study's findings that approximately 87% of the centers contacted provided false or misleading information about the health effects of an abortion, including information about a link between abortion and breast cancer, the effect of abortion on future fertility, and the mental health effects of abortion. ( Id. at 23). The second report cited was a January 2008 report by the NARAL Pro–Choice Maryland Fund. (“NARAL Report”). NARAL sent volunteers into LSPRCs in Maryland, including Centro Tepeyac, and found that every center visited provided false or misleading information, including “false information about abortion risks, misleading data on birth control, and emotionally manipulative counseling.” ( Id. at 34).

The Mihill Memorandum went on to assess the medical literature and found that most of the medical community does not share the views about the health risks of abortion apparently espoused at LSPRCs, including Centro Tepeyac. While acknowledging that studies reaching opposite conclusions exist and no medical procedure is completely risk-free, “[t]he issue the proposed regulation is designed to address is that some LSPRCs provide their clients with misinformation/incomplete information about their pregnancy options which can negatively affect a woman's decision regarding her pregnancy and health.” ( Id. at 3). The surveyed medical literature consistently recommended prenatal care as early as possible in a woman's pregnancy because it is associated with positive health results. “The proposed regulation would address this health concern by ensuring that clients of LSPRCs understand that the information they are receiving is not necessarily from licensed medical professionals.” ( Id.).

At the Council debate, Councilmember George Leventhal said that as members of the Council's Health and Human Services Committee began understanding the activities of LSPRCs,

it became clear to us that many services are provided that may be perceived as medically related services including pregnancy tests, sometimes sonograms, and medical and health counseling. With this understanding, the Committee felt it was valid and appropriate public policy to ensure that County residents understand that they are not visiting a medical clinic if the center does not have licensed medical professionals on staff and that pregnant women, women who are or may be pregnant, should see a doctor.

(ECF No. 49–3, at 2). Councilmember Phil Andrews opposed the Resolution, finding that it is unnecessary as he has not received a single complaint from anyone who went to an LSPRC in his eleven years as a Councilmember. (ECF No. 49–3, at 5).

A press release sent after the Resolution's approval from the Office of Councilmember Duchy Trachtenberg, the chief sponsor of the Resolution, stated that “the regulation is needed because some pregnancy centers often provide false and misleading information to women.... [LSPRCs] often discourage women from seeking contraception or abortion.” (ECF No. 48–8).

Centro Tepeyac is a pro-life Montgomery County non-profit corporation that provides pregnancy services such as pregnancytesting, confidential discussion of pregnancy options, and support to families in the form of diapers and baby clothes. It considers itself a pregnancy center subject to the Resolution. All of its goods and services are provided free of charge, although occasionally a woman will give a personal donation to the center. (ECF No. 49–5, at 22, 43, Trans. 22:14–20, 43:14–24, Deposition of Mariana Vera). Centro Tepeyac does not provide abortions or refer women for abortions. It does not have a licensed medical professional on staff. (ECF No. 48–4 ¶¶ 3, 7, 8). It promises confidentiality to the women it counsels and does not disclose information concerning the counseling sessions without the consent of the woman. (ECF No. 49–4 ¶ 2). Ms. Mariana Vera, Centro Tepeyac's Executive Director, represented in comments submitted to the County Council that “[a]t least half” of the women who take a pregnancy test at Centro Tepeyac were referred by the public clinics of Montgomery County. (ECF No. 48–6, at 58). Those referrals continued even after passage of the Resolution. (ECF No. 48–4 ¶ 4, Declaration of Mariana Vera). The County-run health centers have compiled a list of private facilities where women can get a pregnancy test. This list includes Centro Tepeyac but nowhere states that Centro Tepeyac does not have licensed medical professionals on staff or that pregnant women should see a licensed healthcare provider. (ECF No. 48–13; see also ECF No. 48–10 at 36, Trans. 36:7–23).

According to Ms. Vera,

The Resolution chills and burdens the free speech rights of Centro Tepeyac, by forcing us to suggest to our clients that we are not qualified to talk with them or to provide them with assistance. Likewise, it chills our free speech rights by forcing us to post a sign suggesting that the County believes they should go elsewhere. The Resolution has chilled and burdened the Center in that it has taken critical time and attention away from our core mission of helping women.

(ECF No. 48–4 ¶¶ 10–11). Ms. Vera took a similar position in her deposition, stating that she did not want the sign being the first thing women see upon entering the center “because what it's communicating is that we are not qualified enough to help these women.” (ECF...