First Resort, Inc. v. Herrera

• Decision Date: 20 February 2015
• Docket Number: Case No: C 11–5534 SBA
• Citation: 80 F.Supp.3d 1043
• Court: U.S. District Court — Northern District of California
• Parties: First Resort, Inc., Plaintiff, v. Dennis J. Herrera, in his official capacity as City Attorney of the City of San Francisco; Board of Supervisors of the City and County of San Francisco; and the City and County of San Francisco, Defendants.

80 F.Supp.3d 1043

First Resort, Inc., Plaintiff

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

Case No: C 11–5534 SBA

United States District Court, N.D. California, Oakland Division.

Signed February 20, 2015

Kelly Sinner Biggins, Michelle C. Ferrara, Stephen Arthur Tuggy, Locke Lord LLP, Los Angeles, CA, for Plaintiff.

Erin Brianna Bernstein, Mollie M. Lee, Office of the City Attorney of San Francisco, San Francisco, CA, for Defendants.

ORDER RE CROSS–MOTIONS FOR SUMMARY JUDGMENT

Dkt. 84, 86

SAUNDRA BROWN ARMSTRONG, District Judge

Plaintiff First Resort, Inc. (“First Resort”), a pregnancy services clinic, brings a facial challenge to the constitutionality of San Francisco's Pregnancy Information Disclosure and Protection Ordinance (“Ordinance”), S.F. Admin. Code, ch. 93 §§ 93. 193.5. The Ordinance is aimed at ensuring that indigent women facing unexpected pregnancies are not harmed by false or misleading advertising by certain providers of pregnancy-related services that do not offer abortions or referrals for abortions. Id. §§ 93.3(f), 93.4. As Defendants, First Resort has named the City and County of San Francisco, the San Francisco Board of Supervisors (“Board”) and the San Francisco City Attorney (collectively “the City”).

The parties are presently before the Court on the parties' respective motions for summary judgment, pursuant to Federal Rule of Civil Procedure 56. Having read and considered the papers filed in connection with these matters and being fully informed, the Court hereby DENIES First Resort's motion for summary judgment and GRANTS the City's cross-motion for summary judgment, for reasons set forth below. The Court, in its discretion, finds this matter suitable for resolution without oral argument. See Fed. R. Civ. P. 78(b) ; N.D. Cal. Civ. L.R. 7–1(b).

I. BACKGROUND

A. Factual Summary

1. First Resort

First Resort is a non-profit corporation which operates a state-licensed community medical clinic in San Francisco. Jt. Stmt. of Undisputed Facts in Supp. of the Cross–Mots. for Summ. J. Filed by Pls. and Defs. (“UF”) 1, 32, Dkt. 88. The clinic offers, without charge, services such as pregnancy testing, ultrasounds and counseling. UF 2. First Resort does not provide abortions or emergency contraception, and refuses to refer clients to other facilities for those services. UF 9. First Resort believes that “abortion harms the mother and father, their families, and the unborn child.” UF 8. This belief is recited in First Resort's Articles of Incorporation, which state that its goal is to “build an abortion-free world.” UF 33.

In its online and print advertising, First Resort characterizes itself as a provider of medical care and counseling services for pregnant woman. UF 50 & Ex. H, sub-exs. A–N. Although First Resort opposes abortions and does not provide abortions or abortion referrals, the subject of abortions and related resources are featured prominently in its promotional materials. For example, under the heading “Abortion Counseling,” First Resort's website (http://firstresort.org) represents that “we offer abortion information, resources, and compassionate support for women facing the crucial decisions that surround unintended pregnancies and are considering abortion.” UF, Ex. H, sub-ex. A. Another page discusses “Pregnancy Services and Abortion Services.” Id., sub-ex. G. On the services page of that section, First Resort claims that it provides “pregnancy options counseling and many other services.” Id., sub-ex. I. First Resort makes no mention in its website or advertising of its anti-abortion views or the fact that abortions and abortion referrals are not offered at its clinic.

First Resort's “target clients” are women who have an unplanned pregnancy, “are unsure about what they are going to do,” and are considering an abortion. UF 34(a). To reach its target client, First Resort uses Google's Adwords, a fee-based “keyword” service. The service ensures that when certain combinations of keywords such as “San Francisco” and “abortion” or “emergency contraception ” are used in an internet search query, a link to First Resort's website appears as a paid advertisement above the search results. UF 35, 36, 37. First Resort considers its online advertising as a means of competing with abortion providers for the attention of online viewers. UF 51.

To fund its operation, including the provision of free client services, First Resort relies on donations generated through its fundraising activities. UF 4. For fiscal year 2012, First Resort received donations exceeding $1,000,000, $300,000 of which was allocated to the clinic operations. UF 39. To generate donations, First Resort employees are encouraged to share client “stories” and experiences. UF 46–47. Members of First Resort's senior management receive enhanced compensation based on the number of new clients brought in. UF 48.

2. The Ordinance

On April 2, 2011, San Francisco Supervisor Malia Cohen introduced legislation, cosponsored by Supervisor Scott Weiner, that eventually became the Ordinance. UF 11. October 25, 2011, the Ordinance was presented to the Board for a vote. Ten supervisors voted in favor of the Ordinance, while one voted against it. UF 18 & Ex. F. The new Ordinance was signed into law by Mayor Edwin Lee on November 3, 2011, and took effect on December 4, 2011. UF 19.

The Ordinance amended the San Francisco Administrative Code by adding Chapter 93, which consists of sections 93.1 through 93.5, and is divided into five separate sections: (1) “Title,” id. § 93.1; (2) “Findings,” id. § 93.2; (3) “Definitions,” id. § 93.3; (4) “Violation,” id. § 93.4; and (5) “Enforcement,” id. § 93.5. According to the Findings, the impetus for the Ordinance is the concern that pregnancy clinics that oppose abortion—referred to as “crisis pregnancy centers”—have become common throughout California. Id. § 93.2(5). Though some centers readily acknowledge that they do not provide abortions or emergency contraception or referrals for the same, others do not—and intentionally seek to mislead women contemplating abortion into believing that their facilities offer abortion services and unbiased counseling. Id. § 93.2(6). From the City's perspective, such deception is harmful, especially to indigent women facing unexpected pregnancies. For these particular women, time is of the essence, and even a few days delay in accessing emergency contraception or abortion services can render less invasive options unavailable. Id. § 93.2(9); see also UF 28, 29.

To address the potential false or deceptive advertising by crisis pregnancy centers, the Ordinance prohibits the use of false or misleading advertising regarding the services offered by certain of those centers. This prohibition states as follows:

SEC. 93.4. VIOLATION

(a) It is unlawful for any limited services pregnancy center, with intent directly or indirectly to perform pregnancy-related services (professional or otherwise), to make or disseminate or cause to be made or disseminated before the public in the City, or to make or disseminate or cause to be made or disseminated from the City before the public anywhere, in any newspaper or other publication, or any advertising device or in any other manner or means whatever, including over the Internet, any statement, concerning those services, professional or otherwise, or concerning any circumstance or matter of fact connected with the proposed performance or disposition thereof which is untrue or misleading, whether by statement or omission, that the limited services pregnancy center knows or which by the exercise of reasonable care should know to be untrue or misleading.

(b) It is unlawful for any limited services pregnancy center, with intent directly or indirectly to perform pregnancy-related services (professional or otherwise), to make or disseminate or cause to be so made or disseminated any such statement identified in subsection (a) as part of a plan or scheme with the intent not to perform the services expressly or impliedly offered, as advertised.

S.F. Admin. Code § 93.4 (emphasis added).

The Ordinance distinguishes between a “pregnancy services center” and a “limited services pregnancy center.” Id. § 93.3(f), (g). A “pregnancy services center” is defined as any facility, licensed or otherwise, whose primary purpose is to provide services to women who are or may be pregnant, that either (1) offers obstetric ultrasounds, obstetric sonograms or prenatal care to pregnant women, or (2) has the appearance of a medical facility (as determined by additional criteria). Id. § 93.3(g).

A “limited services pregnancy center” is defined as a pregnancy services center (within the meaning of section 93.3(g)) “that does not directly provide or provide referrals to clients for the following services: (1) abortions; or (2) emergency contraception.” Id. § 93.3(f) (emphasis added). The prohibition against false advertising set forth in the Ordinance applies only to a “limited services pregnancy center.” Id. § 93.5(a). The Ordinance expressly states, however, that it is not intended to “regulate, limit or curtail” abortion-related advocacy. Id. § 93.2(10).

The Ordinance may be enforced by the San Francisco City Attorney through a civil action. Id. § 93.5. Before filing an action, the City Attorney must provide the limited services pregnancy center with written notice of the violation that must be cured within ten days. Id. § 93.5(a). If the center does not timely respond to or correct the violation, the City Attorney may file suit against the limited services pregnancy center for injunctive relief. Id. § 93.5(a). A court may order the violator, inter alia, to pay for and disseminate appropriate corrective advertising; and to post a notice indicating whether a licensed doctor, nurse or nurse practitioner is present and whether abortions,...