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Victory for Life: Stay Granted in Crisis Pregnancy Center Case

Nurse practitioner Gail Brown (L) an unidentified patient and other nurses look at a print out of an ultrasound from a prenatal exam at the Maternity Outreach Mobile in Phoenix

The ACLJ represents two non-profit organizations that operate numerous pro-life crisis pregnancy centers in New York City in a lawsuit challenging a City law that imposes burdensome disclaimer and confidentiality requirements upon crisis pregnancy centers. Today we received a stay from the U.S. Court of Appeals for the Second Circuit that will protect our clients’ First Amendment rights while the case moves forward.

The law, enacted in March 2011, was designed by pro-abortion legislators to severely limit the ability of pro-life centers to advertise their services, and to divert the course of conversations that these centers have with women who are interested in their services, by requiring three lengthy disclaimers to be included, in English and Spanish, in any advertisements, in conversations in which a woman asks about abortion, contraception, or pre-natal care, and on signs posted at the center’s entrance and waiting area. Non-compliance with the law is punishable by thousands of dollars of penalties.

In July 2011, on the eve of when the law would take effect, the trial court granted our motion for a preliminary injunction, allowing our clients to continue to speak freely while the case moves forward. The court concluded that the law significantly burdens our client’s ability to speak freely, and is not the least restrictive way to promote the City’s interests. The court also concluded that the law’s definition of “pregnancy services center,” which determines what facilities are subject to the law’s requirements, is unconstitutionally vague.

The City appealed to the Second Circuit, and on January 17, a three-judge panel agreed with the trial court in holding that two of the law’s three disclaimer requirements violate our clients’ First Amendment rights. However, by a 2-1 vote, the panel also upheld a third disclaimer requirement and concluded that the law’s definition of “pregnancy services center” is not unconstitutionally vague. Judge Wesley wrote a separate opinion in which he stated that

Local Law 17 is a bureaucrat’s dream. It contains a deliberately ambiguous set of standards guiding its application, thereby providing a blank check to New York City officials to harass or threaten legitimate activity. . . . [T]he entire statute is irredeemably vague with respect to the definition of a pregnancy services center (PSC).

The Second Circuit later declined to rehear the case with a larger panel of judges concerning the third disclaimer requirement and vagueness issues. We then asked the court to allow the preliminary injunction to remain in place during the time it takes to prepare and file a petition for a writ of certiorari with the Supreme Court, and also during the time it takes for the Court to consider the petition. The City opposed our motion, and we filed a reply brief supporting the motion.

Today the Second Circuit granted our motion, which means that our clients will not need to comply with the law while the appeal moves to the Supreme Court in the coming months. This is a significant win because the law violates our clients’ constitutional rights for the reasons set forth by the trial court and Judge Wesley.

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