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Media Alerts - The Evergreen Association, Inc. v. City of New York
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January 20, 2014
  The Evergreen Association, Inc. v. City of New York
Headline: Second Circuit Partially Upholds, and Partially Reverses, District Court Injunction Striking Down Disclosure Requirements on "Crisis Pregnancy Centers"

Area of Law: Constitutional Law

Issue(s) Presented: Whether New York City can impose requirements on pregnancy services centers aimed at informing potential clients about the centers and the services they do and do not provide, without violating their First Amendment right to free speech.

Brief Summary: In 2010, a New York City Council member introduced a bill designed to regulate the practice of "crisis pregnancy centers" that provide non-medical pregnancy services and are opposed to abortion. The bill, which was signed into law in 2011 by then-Mayor Bloomberg, required "pregnancy service centers" (facilities that either (1) offered obstetric ultrasounds, sonograms, or prenatal care or (2) had the appearance of a licensed medical facility) to disclose (1) whether they had a licensed medical provider on staff; (2) the fact that the New York City Department of Health and Mental Hygiene encouraged potentially pregnant women to consult with a licensed provider; and (3) whether they provided referrals for abortion, emergency contraception, or prenatal care. The bill's legislative records stated that it was intended to prevent deceptive practices that could impede or delay access to reproductive health services. A group of pregnancy services providers that did not provide referrals for abortion or emergency contraception services sought a preliminary injunction in the United States District Court for the Southern District of New York, arguing that the law was void for vagueness and that it compelled them to speak in violation of the First Amendment. The district court granted their requested injunction in full. On appeal, the Second Circuit affirmed in part and vacated in part. The Second Circuit found that the law was not impermissibly vague and that its first requirement (requiring the centers to disclose whether they had a licensed medical provider on staff) was constitutional, but that the other two requirements violated the First Amendment. The court severed those two provisions from the law.

To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...8b60ea2c229/1/hilite/

Extended Summary: In 2011 then New York City Mayor Michael Bloomberg signed into law Local Law 17 (Law 17), which was scheduled to go into effect four months later. Law 17 required "pregnancy service centers" (facilities that either (1) offered obstetric ultrasounds, sonograms, or prenatal care or (2) had the appearance of a licensed medical facility) to disclose (1) whether they had a licensed medical provider on staff; (2) the fact that the New York City Department of Health and Mental Hygiene encouraged potentially pregnant women to consult with a licensed provider; and (3) whether they provided referrals for abortion, emergency contraception, or prenatal care. The centers were required to provide these disclosures at their entrances and waiting rooms, on advertisements, and during telephone conversations. The bill's legislative records stated that it was intended to prevent deceptive practices that could impede or delay access to reproductive health services.

A group of pregnancy services providers that did not provide referrals for abortion or emergency contraception services sought a preliminary injunction in the United States District Court for the Southern District of New York, in order to prevent the law from taking effect. The district court enjoined the law in full, concluding that the law was impermissibly vague and that they were likely to succeed on the merits.

On appeal, the Second Circuit disagreed that the law was impermissibly vague, holding that Law 17's definition of "pregnancy service center" was sufficiently specific to notify regulated facilities and to curtail arbitrary enforcement. The court then addressed the law's three substantive disclosure requirements, which the plaintiffs argued unconstitutionally compelled speech.

The court found the first disclosure provision - requiring centers to disclose whether they had a licensed medical provider on staff - to be constitutional and therefore enforceable. Although this regulation compelled speech, the court held that it still passed muster because it was narrowly tailored to achieve a compelling government interest: letting a woman know, when she entered a particular pregnancy services center, whether it had a licensed medical provider on hand to supervise her treatment. The court rejected the plaintiffs' argument that this interest could be achieved by general City-sponsored advertisements.

However, the Second Circuit found that the second and third disclosure requirements were unconstitutional. As to the second provision - requiring pregnancy services centers to state 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" - the court stated that less restrictive alternatives existed, such as a City-wide advertising campaign. The court added that this requirement forced pregnancy services centers to convey the City's position on this issue, which was subject to dispute. Additionally, the court rejected the third provision, which required the centers to disclose whether they provided access to emergency contraception and abortion services. The court held that "a requirement that pregnancy services centers address abortion, emergency contraception, or prenatal care at the beginning of their contact with potential clients alters the centers' political speech by mandating the manner in which the discussion of these issues begins."

The Second Circuit thus partially affirmed and partially vacated the district court's decision, striking down the two provisions of Law 17 found unconstitutional, but otherwise leaving the law intact. Judge Wesley concurred in part and dissented in part, arguing that the entire statute was impermissibly vague in how it defined a pregnancy services center. To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...8b60ea2c229/1/hilite/


Panel: Circuit Judges Pooler, Wesley, and Lohier

Argument Date: 9/14/2012

Date of Issued Opinion: 1/17/2014

Docket Number: Nos. 11-2735-cv, 11-2929-cv

Decided: District Court's judgment affirmed in part, vacated in part, and remanded for further proceedings consistent with this Opinion.

Case Alert Author(s): Christopher Roma

Counsel: James Henderson, American Center for Law & Justice, for Plaintiffs-Appellees the Evergreen Association Inc. and Life Center of New York, Inc.; Matthew Bowman, Alliance Defense Fund, for Plaintiff-Appellees Pregnancy Care Center of New York, Boro Pregnancy Counseling Center, and Good Counsel, Inc; Mordecai Newman, Assistant Corporation Counsel, for Defendant-Appellants City of New York

Author of Opinion: Circuit Judge Pooler

Case Alert Circuit Supervisor: Professor Emily Gold Waldman

    Posted By: Emily Waldman @ 01/20/2014 08:17 AM     2nd Circuit  

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