First Resort, Inc. v. Herrera

• Decision Date: 27 June 2017
• Docket Number: No. 15-15434,15-15434
• Citation: 860 F.3d 1263
• Parties: FIRST RESORT, INC., Plaintiff-Appellant, v. Dennis J. HERRERA, in his official capacity as City Attorney of the City of San Francisco; Board of Supervisors of the City & County of San Francisco; City and County of San Francisco, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

860 F.3d 1263

FIRST RESORT, INC., Plaintiff-Appellant,

v.Dennis J. HERRERA, in his official capacity as City Attorney of the City of San Francisco; Board of Supervisors of the City & County of San Francisco; City and County of San Francisco, Defendants-Appellees.

No. 15-15434

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 15, 2016 San Francisco, California

Filed June 27, 2017

Stephen A. Tuggy (argued) and Kelly S. Biggins, Locke Lord LLP, Los Angeles, California, for Plaintiff-Appellant.

Erin B. Bernstein (argued) and Matthew Goldberg, Deputy City Attorneys; Yvonne R. Meré, Chief of Complex and Affirmative Litigation; Dennis J. Herrera, City Attorney; Office of the City Attorney, San Francisco, California; for Defendants-Appellees.

Jonathan M. Eisenberg, Deputy Attorney General; Mark R. Beckington, Supervising Deputy Attorney General; Douglas J. Woods, Senior Assistant Attorney General; Kathleen A. Kenealy, Chief Assistant Attorney General; Office of the Attorney General, Los Angeles, California; for Amicus Curiae Attorney General of California.

Priscilla Joyce Smith, Yale Law School, Brooklyn, New York, for Amici Curiae Information Society Project at Yale Law School and First Amendment Scholars.

Paula M. Mitchell, Attorney; Lindsay N. Burton, Law School Participant; Los Angeles, California; for Amici Curiae NARAL Pro-Choice California, California Religious Coalition for Reproductive Choice, California Women Lawyers, and Women Lawyers Association of Los Angeles.

Before: Dorothy W. Nelson, A. Wallace Tashima, and John B. Owens, Circuit Judges.

Concurrence by Judge Tashima

OPINION

NELSON, Senior Circuit Judge:

First Resort, Inc. ("First Resort") challenges the constitutionality of San Francisco's Pregnancy Information Disclosure and Protection Ordinance ("the Ordinance"), a law designed to protect indigent women facing unexpected pregnancies from the harms posed by false or misleading advertising by limited services pregnancy centers ("LSPCs"). S.F. Admin. Code, ch. 93 §§ 93.1–93.5. The district court granted in part Appellees' (collectively, "the City") motion to dismiss, denied First Resort's motion for summary judgment, and granted Appellees' cross-motion for summary judgment. First Resort now appeals those decisions. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the district court and hold the Ordinance is constitutional and not preempted by state law.

BACKGROUND

1. First Resort

Until 2014, First Resort, an LSPC, operated a state-licensed community medical clinic and advertised its services in San Francisco under the name "First Resort." Since 2014, First Resort has operated its clinic under the names "Third Box" and "Support Circle." As a non-profit corporation, First Resort provides free pregnancy-related services, including pregnancy testing, ultrasounds, and counseling. First Resort's goal is "to build an abortion-free world," and therefore it does not provide abortions or emergency contraception

to its patients, nor does it refer its patients to other facilities for such services.

First Resort's target clients are women who are unsure how to proceed with unplanned pregnancies, including women considering abortion. While operating its website under the name "First Resort," the clinic utilized paid-for online advertising services, such as Google Adwords, to reach its intended audience. Upon searching for certain keywords such as "San Francisco," "abortion," and "emergency contraception

," internet users were directed to First Resort's website. First Resort uses its online advertising to compete with abortion providers for viewers' attention.

Although First Resort has a clear anti-abortion agenda, the clinic advertised itself online as an unbiased and neutral organization that provided "abortion information, resources, and compassionate support for women" with "unintended pregnancies" who are "considering abortion." The website further stated that First Resort "equip[s] [women] with the resources [they] need to make a well-informed decision about [their] options," and offered information about abortion procedures and costs. Notably, the website and advertising materials did not mention First Resort's anti-abortion stance or that it did not provide referrals for abortions.

2. False and Misleading Advertising by Clinics

False and misleading advertising by clinics that do not provide abortions, emergency contraception

, or referrals to providers of such services has become a problem of national importance. This issue has been the subject of a congressional report and proposed federal legislation. See Minority Staff of H. Comm. on Gov't Reform, Special Investigations Div., False & Misleading Health Information Provided by Federally Funded Pregnancy Resource Centers (July 2006) (the "Waxman Report "); Stop Deceptive Advertising for Women's Services Act of 2013, S. 981, 113th Cong. (2013) ("A Bill [t]o direct the Federal Trade Commission to prescribe rules prohibiting deceptive advertising of abortion services...."). The congressional report found that certain pregnancy resource centers "frequently fail to provide medically accurate information" and that "the vast majority of pregnancy centers" contacted during the investigation misrepresented the medical consequences of abortion. Waxman Report at 14. The report further concluded that while "[t]his tactic may be effective in frightening pregnant teenagers and women and discouraging abortion [,]" it "denies [them] vital health information, prevents them from making an informed decision, and is not an accepted public health practice." Id.

Local governments around the country, including in San Francisco, have also sought to curtail the deceptive practices of pregnancy service centers. On August 2, 2011, Supervisor Malia Cohen, a member of the Board of Supervisors of the City and County of San Francisco ("the Board"), introduced legislation aimed at preventing such deceptive practices. That same day, the City Attorney sent First Resort a letter expressing his "serious concerns" about First Resort's misleading advertisements and asking First Resort to "correct" its advertising "to clarify that the clinic does not offer or make referrals for abortion services." This is the only such letter the City Attorney sent First Resort.

At an October 18, 2011 Board meeting, various supervisors commented on the proposed legislation. Supervisor Cohen stated, "I want to remind you the purpose and intent of this Ordinance is to protect consumers of pregnancy-related services by prohibiting [LSPCs] from knowingly disseminating false or misleading advertising information about the services they provide." Supervisor Weiner said, "we are obviously balancing ... constitutional rights here," noting that "we're all very conscious of the First Amendment," and that "this has been a narrowly drafted ordinance." Disagreeing with his colleagues, Supervisor Elsbernd argued that "the proponents of this legislation [have] made clear that their target is ... First Resort," and that "there has been no testimony, documentation, no affidavits of any woman, any service, someone seeking service who has been misled."

On October 25, 2011, the Board passed the Ordinance in a ten-to-one vote. The Ordinance was signed into law on November 3, 2011, and took effect on December 4, 2011.

3. The Ordinance

The Ordinance amended the San Francisco Administrative Code, adding Chapter 93, Sections 93.1 through 93.5, "to prohibit [LSPCs] from making false or misleading statements to the public about pregnancy-related services the centers offer or perform." The Ordinance is divided into five sections: (1) "Title," (2) "Findings," (3) "Definitions," (4) "Violation," and (5) "Enforcement." See generally S.F. Admin. Code, ch. 93 §§ 93.1–93.5.

The "Findings" section explains the impetus for the Ordinance, stating that "[i]n recent years, clinics that seek to counsel clients against abortion"—often referred to as crisis pregnancy centers ("CPCs")—"have become common throughout California." Id. § 93.2(5). Although some CPCs "openly acknowledge, in their advertising and their facilities, that they do not provide abortions or emergency contraception

or refer clients to other providers of such service[,]" others "seek to mislead women contemplating abortion into believing that their facilities offer abortion services and unbiased counseling." Id. § 93.2(6). "Because of the time-sensitive and constitutionally protected nature of the decision to terminate a pregnancy, false and misleading advertising by clinics that do not offer or refer clients for abortion or emergency contraception is of special concern to the City." Id. § 93.2(9). This is because "[w]hen a woman is misled into believing that a clinic offers services that it does not in fact offer, she loses time crucial to the decision whether to terminate a pregnancy," and "may also lose the option to choose a particular procedure, or to terminate a pregnancy at all." Id. The "Findings" section also emphasizes that the "City respects the right of [LSPCs] to counsel against abortions ... and the City does not intend by this Chapter to regulate, limit or curtail such advocacy." Id. § 93.2(10).

In addition, the "Findings" section notes the City's relevant financial concerns. In particular, the Ordinance explains that if women "who have chosen to terminate a pregnancy are misled and delayed by the false advertising of CPCs, the cost of providing more invasive and expensive options may fall upon the City health facilities, which provide the medical services of last resort for the City's indigent population." Id. § 93.2(11).

In the "Definitions" section, the Ordinance distinguishes between a "[p]regnancy services center" and an LSPC. Id. § 93.3(f)–(g). A "[p]regnancy services center" is defined as "a facility, licenced or otherwise ... the primary purpose of which is to provide services to women who are or may be pregnant, that either (1) offers obstetric...