News Law and Policy

Federal Appeals Court Unanimously Rejects North Carolina ‘Choose Life’ License Plates

Jessica Mason Pieklo

A three-judge panel said in its decision that the specialty license plates, which help fund anti-choice crisis pregnancy centers in the state, violate the First Amendment.

In a unanimous decision Tuesday, a three-judge panel of the United States Court of Appeals for the Fourth Circuit upheld a lower court’s ruling that North Carolina’s “Choose Life” license plates are unconstitutional because the state does not offer alternative, pro-choice license plates.

In 2011, North Carolina lawmakers approved “Choose Life” license plates as one of 80 specialty plates to be offered by the state. Each “Choose Life” plate would cost $25, with $15 of the proceeds going into the Carolina Pregnancy Care Fellowship, an association of anti-choice crisis pregnancy centers. But while the assembly approved the “Choose Life” plates, it rejected proposals to offer license plates with alternative messages such as “Respect Choice” and “Trust Women.” The decision to not offer a specialty plate with an alternative viewpoint on abortion, the Fourth Circuit concluded, constitutes “blatant viewpoint discrimination squarely at odds with the First Amendment.”

The core issue in cases like these is whether or not the speech at issue—in this instance, the state-sponsored “Choose Life” license plate—is to be considered purely government speech, which would grant the state sole discretion over the message, or whether the plates constitute individual speech, which implicates First Amendment protections from the government favoring one message at the expense of another. According to the Fourth Circuit, the specialty plates here are a combination of both government speech and individual speech. Clearly the government has control over the message, but citizens chose specialty plates to communicate a specific viewpoint. But, when balanced on the whole, the plates tilt strongly in favor of private speech, the court determined. Thus, North Carolina is not free to privilege an anti-choice message over a pro-choice one.

“Specialty plates are closely associated with the drivers who select and pay for them,” the court wrote. “And the driver, on whose car the special message constantly appears for all those who share the road to see, is the ultimate communicator.”

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The conclusion that the specialty plates represent a combination of government and private speech and, therefore, cannot blatantly discriminate in terms of messaging was in many ways expected. The Fourth Circuit issued a very similar ruling with respect to neighboring South Carolina’s “Choose Life” license plate.

“Today’s ruling protects the right of North Carolinians of all political beliefs to have equal access to avenues for free speech,” Chris Brook, an attorney for the American Civil Liberties Union of North Carolina, said in a statement.

The decision marks the second recent loss for North Carolina anti-choice activists from the federal courts. Just last month, a federal district court permanently blocked the state’s mandatory ultrasound law. And despite the fact that the current administration is on the record as not supporting the ultrasound law, North Carolina Attorney General Roy Cooper has said he plans to appeal the decision striking the mandatory ultrasound law to the Fourth Circuit.

Attorneys for North Carolina could appeal the decision and request either the full appeals court or the U.S. Supreme Court take up the case. 

Roundups Law and Policy

Gavel Drop: The Fight Over Voter ID Laws Heats Up in the Courts

Jessica Mason Pieklo & Imani Gandy

Texas and North Carolina both have cases that could bring the constitutionality of Voter ID laws back before the U.S. Supreme Court as soon as this term.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts

Texas Attorney General Ken Paxton intends to ask the U.S. Supreme Court to reinstate the state’s voter ID law.

Meanwhile, according to Politifact, North Carolina attorney general and gubernatorial challenger Roy Cooper is actually saving taxpayers money by refusing to appeal the Fourth Circuit’s ruling on the state’s voter ID law, so Gov. Pat McCrory (R) should stop complaining about it.

And in other North Carolina news, Ian Millhiser writes that the state has hired high-powered conservative attorney Paul Clement to defend its indefensible voter ID law.

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Alex Thompson writes in Vice that the Zika virus is about to hit states with the most restrictive abortion laws in the United States, including Alabama, Louisiana, Mississippi, and Texas. So if you’re pregnant, stay away. No one has yet offered advice for those pregnant people who can’t leave Zika-prone areas.

Robin Marty writes on Care2 about Americans United for Life’s (AUL) latest Mad Lib-style model bill, the “National Abortion Data Reporting Law.” Attacking abortion rights: It’s what AUL does.

The Washington Post profiled Cecile Richards, president of the Planned Parenthood Federation of America. Given this Congress, that will likely spur another round of hearings. (It did get a response from Richards herself.)

Kimberly Strawbridge Robinson writes in Bloomberg BNA that Stanford Law Professor Pamela Karlan thinks the Supreme Court’s clarification of the undue burden standard in Whole Woman’s Health v. Hellerstedt will have ramifications for voting rights cases.

This must-read New York Times piece reminds us that we still have a long way to go in accommodating breastfeeding parents on the job.

News Health Systems

The Crackdown on L.A.’s Fake Clinics Is Working

Nicole Knight

"Why did we take those steps? Because every day is a day where some number of women could potentially be misinformed about [their] reproductive options," Feuer said. "And therefore every day is a day that a woman's health could be jeopardized."

Three Los Angeles area fake clinics, which were warned last month they were breaking a new state reproductive transparency law, are now in compliance, the city attorney announced Thursday.

Los Angeles City Attorney Mike Feuer said in a press briefing that two of the fake clinics, also known as crisis pregnancy centers, began complying with the law after his office issued notices of violation last month. But it wasn’t until this week, when Feuer’s office threatened court action against the third facility, that it agreed to display the reproductive health information that the law requires.

“Why did we take those steps? Because every day is a day where some number of women could potentially be misinformed about [their] reproductive options,” Feuer said. “And therefore every day is a day that a woman’s health could be jeopardized.”

The facilities, two unlicensed and one licensed fake clinic, are Harbor Pregnancy Help CenterLos Angeles Pregnancy Services, and Pregnancy Counseling Center.

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Feuer said the lawsuit could have carried fines of up to $2,500 each day the facility continued to break the law.

The Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act requires the state’s licensed pregnancy-related centers to display a brief statement with a number to call for access to free and low-cost birth control and abortion care. Unlicensed centers must disclose that they are not medical facilities.

Feuer’s office in May launched a campaign to crack down on violators of the law. His action marked a sharp contrast to some jurisdictions, which are reportedly taking a wait-and-see approach as fake clinics’ challenges to the law wind through the courts.

Federal and state courts have denied requests to temporarily block the law, although appeals are pending before the U.S. Court of Appeals for the Ninth Circuit.

Some 25 fake clinics operate in Los Angeles County, according to a representative of NARAL Pro-Choice California, though firm numbers are hard to come by. Feuer initially issued notices to six Los Angeles area fake clinics in May. Following an investigation, his office warned three clinics last month that they’re breaking the law.

Those three clinics are now complying, Feuer told reporters Thursday. Feuer said his office is still determining whether another fake clinic, Avenues Pregnancy Clinic, is complying with the law.

Fake clinic owners and staffers have slammed the FACT Act, saying they’d rather shut down than refer clients to services they find “morally and ethically objectionable.”

“If you’re a pro-life organization, you’re offering free healthcare to women so the women have a choice other than abortion,” said Matt Bowman, senior counsel with Alliance Defending Freedom, which represents several Los Angeles fake clinics fighting the law in court.

Asked why the clinics have agreed to comply, Bowman reiterated an earlier statement, saying the FACT Act violates his clients’ free speech rights. Forcing faith-based clinics to “communicate messages or promote ideas they disagree with, especially on life-and-death issues like abortion,” violates their “core beliefs,” Bowman said.

Reports of deceit by 91 percent of fake clinics surveyed by NARAL Pro-Choice California helped spur the passage of the FACT Act last October. Until recently, Googling “abortion clinic” might turn up results for a fake clinic that discourages abortion care.

“Put yourself in the position of a young woman who is going to one of these centers … and she comes into this center and she is less than fully informed … of what her choices are,” Feuer said Thursday. “In that state of mind, is she going to make the kind of choice that you’d want your loved one to make?

Rewire last month visited Lost Angeles area fake clinics that are abiding by the FACT Act. Claris Health in West Los Angeles includes the reproductive notice with patient intake forms, while Open Arms Pregnancy Center in the San Fernando Valley has posted the notice in the waiting room.

“To us, it’s a non-issue,” Debi Harvey, the center’s executive director, told Rewire. “We don’t provide abortion, we’re an abortion-alternative organization, we’re very clear on that. But we educate on all options.”

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