News Law and Policy

Federal Appeals Court Reverses Block on Baltimore’s CPC ‘Truth-in-Advertising’ Law

Jessica Mason Pieklo

A federal appeals court ruled a lower court was wrong when it blocked a Baltimore law requiring crisis pregnancy centers to disclose that they are not actual medical facilities.

Last week the Fourth Circuit Court of Appeals issued an important ruling in the battle over the business tactics used by so-called crisis pregnancy centers (CPCs) to dissuade women from accessing abortion services.

CPCs frequently advertise themselves as clinics that provide a full range of reproductive health services, but in reality many are non-medical organizations that dissuade women from obtaining abortion and birth control services.  In addition to deceptive advertising, some centers provide factually inaccurate information to patients and disregard patient confidentiality. Baltimore was the first city in the nation to pass legislation requiring these centers to disclose that they neither refer for nor offer abortion services. The ordinance was passed after NARAL Pro-Choice Maryland Fund released an extensive report documenting the harms posed by these centers, which was featured heavily in the legal defense of the city’s law. The ordinance was the first of its kind in the country, and was soon followed by similar ordinances in Austin, San Francisco, New York City, and Montgomery County, Maryland.

In 2010 the ordinance was challenged by the Archbishop of Baltimore and the Greater Baltimore Center for Pregnancy Concerns, arguing the law was unconstitutional. The Center for Reproductive Rights joined the City of Baltimore to defend the ordinance. In January 2011, the district court granted summary judgment in favor of the CPC and its allies before the city was even able to submit evidence in support of its case. The city and CRR immediately appealed the ruling to the Fourth Circuit. A divided appellate panel later upheld the lower court’s decision to block the ordinance in June 2012, and just a few months later, the full circuit court agreed to re-hear the case.

Recognizing the substantial evidence amassed by the Baltimore City Council that crisis pregnancy centers often engage in deceptive business practices to dissuade women from obtaining contraception and abortion services, the full Fourth Circuit held that a lower court’s decision blocking the city’s truth-in-advertising ordinance for CPCs was inappropriate. The decision from the full appellate court remands the case back to Senior U.S. District Judge Marvin J. Garbis for further legal proceedings and discovery.

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“We welcome the opportunity to further expose the deceptive business practices of these crisis pregnancy centers and will continue to work alongside the City of Baltimore to ensure women seeking contraception and abortion have timely access to those services so they can make the best health care decisions for themselves and their families,” said Stephanie Toti, senior staff attorney at the Center for Reproductive Rights and co-counsel to the Baltimore City Law Department.

Jodi Finkelstein, executive director of NARAL Pro-Choice Maryland, praised the decision in a statement. “We support improving services for women who choose to continue their pregnancies, but a line is crossed when CPCs lie to women looking for comprehensive pregnancy-related information,” Finkelstein said.

The decision is significant as more and more state legislatures pass abortion restrictions that require providers to tell their patients deceptive and misleading information—about a link between abortion and breast cancer, for instance. While the Fourth Circuit’s decision does not affect those laws specifically, it does send a signal that lying to women to prevent them from accessing reproductive health care they need will not stand.

News Law and Policy

Oakland Could Outlaw False Advertising by Crisis Pregnancy Centers

Nicole Knight Shine

California already requires CPCs to post information about free or low-cost abortion care or contraception in their facilities. The proposed ordinance would penalize licensed and unlicensed "limited service pregnancy centers" for making untrue or misleading statements in ads, online, and in publications.

Elected leaders in Oakland, California, want to crack down on crisis pregnancy centers (CPCs) with a truth-in-advertising ordinance.

A panel of some members of the city council on Tuesday took up the proposed measure during a Life Enrichment Committee meeting, arguing that many of these religiously run centers target pregnant people with deceptive billboards, websites, and search engine results for “abortion.”

California already requires CPCs to post information about free or low-cost abortion care or contraception in their facilities. The proposed ordinance would penalize licensed and unlicensed “limited service pregnancy centers” for making untrue or misleading statements in ads, online, and in publications. The ordinance also applies to statements of omission, meaning the withholding of information. Violators would be given ten days to take corrective action by the city attorney, and could face civil fines from $50 to $500. Penalties also include running new ads to correct deceptive ones.

“Crisis pregnancy centers put their ideological agenda ahead of women’s health,” Oakland Vice Mayor Annie Campbell Washington told those gathered in chambers. “They target what they call ‘abortion-minded women’ with deceptive advertising, implying they offer abortion services or referrals.”

Campbell Washington said the new “consumer protection measure” was necessary because individuals who go to CPCs are “being lied to.”

Baltimore, Maryland, was the first city in the nation to enact a similar truth-in-advertising ordinance, which has been blocked amid a court challenge. In 2011, San Francisco passed a similar ordinance. It prevailed after a protracted court battle, when a district judge said the First Amendment does not protect false and misleading commercial speech.

During public comments, Christina Malin, director of family health services for Alameda County Public Health Department, expressed support for the ordinance, noting that CPCs inflict harm by targeting low-income communities of color in particular. She described receiving a voicemail message from a CPC worker asking for help with an undocumented client with a high-risk pregnancy. Malin never learned what happened to the patient.

Malin also noted that county prenatal clinics had observed a tendency by CPCs to refer their clients to county facilities for medical care once the client reached about 24 weeks of pregnancy, when the individual “can no longer terminate easily” and abortion care, while lawful, is more expensive. These former CPC clients, Malin added, arrive without records of appropriate prenatal medical care, such as lab work.

Campbell Washington noted that CPCs are difficult for clients to vet on their own because a facility will frequently change its name.

Rewire found, for example, the state has licensed the CPC Third Box Pregnancy Clinic to operate at 400 30th Street #401 in Oakland under the legal name First Resort. But online and in Yelp reviews the facility at 400 30th Street #401 is called Support Circle Pregnancy Clinic.

First Resort, as it turns out, is the same religiously run nonprofit that challenged the San Francisco ordinance, as the San Francisco Chronicle reported. In its print and online ads in San Francisco, First Resort claimed to offer “abortion information, resources and compassionate support for women facing the crucial decisions that surround unintended pregnancies and are considering abortion,” although it did not refer clients to abortion providers or provide abortion care.

On Tuesday, Amy Everitt, state director of the advocacy group NARAL Pro-Choice California, showed those gathered in chambers how a Google search for “Oakland” and “abortion” produced results with three clinics, two of which were CPCs. She noted that a 2015 NARAL investigation found that 91 percent of CPCs in the report dispensed false information.

Google has said it would correct its inaccurate search results.

The measure now heads to the full Oakland City Council after unanimously clearing the Life Enrichment Committee.

The ordinance comes amid reports in Sacramento and Los Angeles of CPCs flouting the new state law requiring pregnancy-related centers, including CPCs, to post a brief notice about access to free and low-cost abortion care and contraception.

The Los Angeles City Attorney recently announced that his office would begin cracking down on violators of the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act, as Rewire reported. But some jurisdictions have chosen not to enforce the law while five lawsuits against the FACT Act are pending.

Officials running CPCs contend they’d rather close than comply, and say in court filings the law violates their First Amendment rights.

Alliance Defending Freedom Senior Counsel Matt Bowman, who is representing the National Institute of Family and Life Advocates in challenging the FACT Act, said in a statement earlier this month thatforcing [the centers] to promote abortion and recite the government’s messages is a clear violation of their constitutionally protected First Amendment freedoms.”

News LGBTQ

Federal Court Issues Preliminary Injunction Allowing Trans Student to Use Boys’ Bathroom

Imani Gandy

Gavin Grimm sued the Gloucester County School Board over its policy requiring students to use restrooms that reflect their “biological gender” rather than their gender identity.

A federal district court in Virginia issued an injunction on Thursday in favor of transgender student Gavin Grimm, requiring that Gloucester County School Board permit him to use the boys’ restroom at his high school.

Grimm sued the Gloucester County School Board over its policy requiring students to use restrooms that reflect their “biological gender” rather than their gender identity. The student’s attorneys argued that the policywhich essentially expels transgender students from communal restrooms and requires them to use “alternative” restroom facilitiesis unconstitutional under the 14th Amendment and violates Title IX of the U.S. Education Amendments of 1972, a federal law prohibiting sex-based discrimination at schools that receive federal funding.

Grimm’s attorneys had asked the district court for an injunction blocking the policy. The court initially sided with the school board, ruling that its bathroom policy did not violate Title IX, and that the privacy interests of other students outweighed any potential harm to Grimm in using a different bathroom.

After Grimm appealed that ruling to the Fourth Circuit Court of Appeals, a three judge-panel reversed the district court’s dismissal of Grimm’s claim in late April, ruling that the district court had relied on the wrong standard in failing to issue the injunction. In backing Grimm, the court relied heavily on recent guidance issued by the U.S. Department of Education that denying transgender students access to the school bathrooms of their choice is a violation of Title IX, and remanded the case back to the lower court for a new hearing with instructions to include consideration of the Department of Education’s guidance. After entertaining a request by the school board that all 15 judges who sit in the Fourth Circuit rehear the case “en banc,” meaning before the full court, the Fourth Circuit announced that it would not review its prior ruling.

In Thursday’s order granting the injunction, the Virginia district court noted that “[i]t appears to the Court from the unrebutted declaration submitted by the parties that the plaintiff is entitled to use the boys’ restroom.”

“Therefore, for the reasons set forth in [Judge Davis’s] concurrence and based on the declarations submitted by the parties, the Court finds that the plaintiff is entitled to a preliminary injunction,” wrote District Court Judge Robert G. Doumar in the order.

Earlier this month, the school board requested that the U.S. Supreme Court review the case. The petition filed with the Court asks the justices to reexamine a line of legal precedent relied on by the Fourth Circuit in ruling for Grimm. This precedent, a principle of judicial deference sometimes referred to as the Auer/Seminole Rock doctrine, grants federal agencies like the Department of Education substantial leeway in interpreting the regulations for laws they are responsible for enforcing, like Title IX. But given the Court’s current calendar, the earliest it could hear the case, should it agree to take it, is next year.

In late May, the Supreme Court declined to to hear another case involving student loan financing that similarly sought to undermine the longstanding principle of judicial deference.

In an email to Rewire, Joshua Block, staff attorney for the American Civil Liberties Union, which represents Grimm in this lawsuit said, “This ruling will have the biggest impact for Gavin personally.”

“Under the Fourth Circuit’s decision, it was already clear that Gavin would ultimately prevail in court. This preliminary injunction makes sure that Gavin’s legal victory has a real impact on his life while he is still at school.”