Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Balt.
| Decision Date | 05 January 2018 |
| Docket Number | No. 16-2325,16-2325 |
| Citation | 879 F.3d 101 |
| Parties | GREATER BALTIMORE CENTER FOR PREGNANCY CONCERNS, INCORPORATED, Plaintiff–Appellee, and St. Brigid's Roman Catholic Congregation Incorporated; Archbishop Edwin F. O'Brien, Archbishop of Baltimore and His Successors in Office, a Corporation Sole, Plaintiffs, v. MAYOR AND CITY COUNCIL OF BALTIMORE; Stephanie Rawlings–Blake, Mayor of Baltimore, in her Official Capacity; Leana S. Wen, M.D., in her official capacity as Baltimore City Health Commissioner, Defendants–Appellants, and Olivia Farrow, Esq., Acting Baltimore City Health Commissioner, in her official capacity; Baltimore City Health Department ; Oxiris Barbot, Defendants, International Municipal Lawyers Association ; Public Health Advocates ; The Information Society Project at Yale Law School; Naral Pro–Choice Maryland; Naral Pro–Choice America; Catholics for Choice ; Baltimore Abortion Fund; DC Abortion Fund, ("DCAF"); National Abortion Federation; Maryland Chapter for the National Organization for Women; Planned Parenthood of Maryland; Religious Coalition for Reproductive Choice; Whole Woman's Health of Baltimore; Women's Law Center of Maryland, Inc orporated; The Honorable Christopher Van Hollen, Jr.; The Honorable Elijah Cummings, Amici Supporting Appellant, Ebony Harris; Ethan Taylor; Linda Holliday ; Nicole Howard; Destinie Jackson; Jennera Smalls; American Center for Law and Justice; National and Local Pregnancy Care Organizations; Democrats for Life of America ; Institutional Religious Freedom Alliance; Christian Legal Society; National Institute of Family and Life Advocates ; Heartbeat International; National Legal Foundation; State of West Virginia; State of Alabama; State of Arkansas; State of Kansas; State of Michigan; State of Nebraska; State of Ohio; State of South Carolina; State of Texas; State of Utah; Dr. Kesten C. Green; Law Professors; Ethics & Religious Liberty Commission ; International Society for Krishna Consciousness, Incorporated; Archdiocese of Baltimore, Amici Supporting Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Suzanne Sangree, BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellants. David William Kinkopf, GALLAGHER EVELIUS & JONES LLP, Baltimore, Maryland, for Appellee. ON BRIEF: Molly R. Duane, Autumn C. Katz, Stephanie Toti, CENTER FOR REPRODUCTIVE RIGHTS, New York, New York, for Appellants. Peter J. Basile, FERGUSON, SHETELICH & BALLEW, PA, Baltimore, Maryland; Steven G. Metzger, Anatoly Smolkin, GALLAGHER EVELIUS & JONES LLP, Baltimore, Maryland; Mark L. Rienzi, THE BECKET FUND FOR RELIGIOUS LIBERTY, Washington, D.C., for Appellee. Simona G. Strauss, P. Casey Mathews, Palo Alto, California, Veronica R. Jordon–Davis, SIMPSON THACHER & BARTLETT LLP, New York, New York, for Amicus Public Health Advocates. Douglas W. Baruch, Washington, D.C., Janice Mac Avoy, Jennifer L. Colyer, Andrew B. Cashmore, Leigh G. Rome, FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP, New York, New York, for Amicus International Municipal Lawyers Association. Priscilla Joyce Smith, YALE LAW SCHOOL, Brooklyn, New York, for Amicus The Information Society Project at Yale Law School. Kimberly A. Parker, Lesley Fredin, Washington, D.C., Paloma Naderi, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, for Amici NARAL Pro–Choice Maryland, NARAL Pro–Choice America, Baltimore Abortion Fund, Catholics for Choice, DC Abortion Fund, Maryland Chapter for the National Organization for Women, National Abortion Federation, Planned Parenthood of Maryland, Religious Coalition for Reproductive Choice, Whole Woman's Health of Baltimore, Incorporated, Women's Law Center of Maryland, The Honorable Christopher Van Hollen, Jr., and The Honorable Elijah Cummings. Andrea Picciotti–Bayer, THE CATHOLIC ASSOCIATION, McLean, Virginia; Jack Ryan Terziu, Baltimore, Maryland, for Amici Ebony Harris, Ethan Taylor, Linda Holliday, Nicole Howard, Destinie Jackson, and Jennera Smalls. Edward L. White III, Erik M. Zimmerman, Ann Arbor, Michigan, Frances J. Manion, Geoffrey R. Surtees, AMERICAN CENTER FOR LAW AND JUSTICE, New Hope, Kentucky, for Amicus American Center for Law and Justice. Anna F. Paprocki, Deanna M. Wallace, AMERICANS UNITED FOR LIFE, Arlington, Virginia, for Amicus National and Local Pregnancy Care Organizations. Thomas C. Berg, Religious Liberty Appellate Clinic, UNIVERSITY OF ST. THOMAS SCHOOL OF LAW, Minneapolis, Minnesota; Kimberlee Wood Colby, Christian Legal Society, CENTER FOR LAW AND RELIGIOUS FREEDOM, Springfield, Virginia, for Amici Democrats for Life of America, Institutional Religious Freedom Alliance, and Christian Legal Society. Kevin H. Theriot, Elissa M. Graves, Scottsdale, Arizona, David A. Cortman, ALLIANCE DEFENDING FREEDOM, Lawrenceville, Georgia, for Amici National Institute of Family and Life Advocates and Heartbeat International. Frederick W. Claybrook, Jr., CLAYBROOK LLC, Washington, D.C.; Steven W. Fitschen, THE NATIONAL LEGAL FOUNDATION, Virginia Beach, Virginia, for Amicus National Legal Foundation. Patrick Morrisey, Attorney General, Elbert Lin, Solicitor General, Thomas M. Johnson, Jr., Deputy Solicitor General, Erica N. Peterson, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Amicus State of West Virginia. Steven T. Marshall, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ALABAMA, Montgomery, Alabama, for Amicus State of Alabama. Leslie Rutledge, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ARKANSAS, Little Rock, Arkansas, for Amicus State of Arkansas. Derek Schmidt, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF KANSAS, Topeka, Kansas, for Amicus State of Kansas. Bill Schuette, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MICHIGAN, Lansing, Michigan, for Amicus State of Michigan. Douglas J. Peterson, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF NEBRASKA, Lincoln, Nebraska, for Amicus State of Nebraska. Michael DeWine, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for Amicus State of Ohio. Alan Wilson, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Amicus State of South Carolina. Ken Paxton, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF TEXAS, Austin, Texas, for Amicus State of Texas. Sean D. Reyes, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF UTAH, Salt Lake City, Utah, for Amicus State of Utah. Blaine H. Evanson, Daniel Nowicki, GIBSON, DUNN & CRUTCHER LLP, Los Angeles, California, for Amicus Dr. Kesten C. Green. C. Kevin Marshall, David T. Raimer, Catherine Maggio Schmucker, JONES DAY, Washington, D.C., for Amici Law Professors. Daniel P. Collins, Adam P. Barry, MUNGER, TOLLES & OLSON LLP, Los Angeles, California, for Amici Ethics & Religious Liberty Commission, International Society for Krishna Consciousness, Incorporated, and Archdiocese of Baltimore.
Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Duncan and Judge Agee joined.
A Baltimore City ordinance requires pregnancy clinics that do not offer or refer for abortions to disclose that fact through signs posted in their waiting rooms. The district court held that the law, as applied to appellee, the Greater Baltimore Center for Pregnancy Concerns, Inc., violates the First Amendment's Free Speech Clause. We affirm. The City has considerable latitude in regulating public health and deceptive advertising. But Baltimore's chosen means here are too loose a fit with those ends, and in this case compel a politically and religiously motivated group to convey a message fundamentally at odds with its core beliefs and mission.
The Greater Baltimore Center for Pregnancy Concerns is a non-profit Christian organization committed to "providing alternatives to abortion to women who find themselves in the midst of an unplanned pregnancy." J.A. 360. Operating from rent-free space provided by a Catholic Church, the Center provides pregnant women with free services, including counseling, bible study, pregnancy tests, sonograms
, and education on child care, life skills, and abstinence. It also provides free prenatal vitamins, diapers, clothing, books, and other assistance. The Center does not charge for its goods or services. In keeping with its religious mission, the Center does not provide or refer for abortions. That fact is clearly stated in a "Commitment of Care" pamphlet available in the Center's waiting room. J.A. 362, 375.
The Center advertises its pregnancy-related services, but does not expressly broadcast its religious opposition to abortion in those ads. For example, a 2010 campaign on Baltimore buses touted "FREE Abortion Alternatives," "FREE Confidential Options Counseling," "FREE Pregnancy Tests," and "FREE Services." J.A. 698. A 2013 spread in the local Penny Saver advertised, among other things, "Pre-natal development information," "Information about procedures and risks of abortion," "Bible Study," and "Post Abortion Counseling & Education." J.A. 693. The Center is also affiliated with two pro-life umbrella organizations, Care Net and Heartbeat International, which refer women to their affiliates through national call centers and websites.
Concerned that women seeking abortions might be misled into visiting pro-life pregnancy centers and delaying the abortion, the Mayor and City Council of Baltimore enacted Ordinance 09-252 on December 4, 2009. The ordinance requires any "limited-service pregnancy center" to post a disclaimer in its waiting room notifying clients that it "does not provide or make referral for abortion or birth-control services." See Balt. City Health Code §§ 3-501 to 3-506 (2010). Under the ordinance, a "limited-service pregnancy center" means any entity "whose primary purpose is to provide pregnancy-related services" and which "provides information about...
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