RICHMOND, Va. (AP) — A divided federal appeals court gave new life Wednesday to a Baltimore city ordinance that a judge had ruled violated the free-speech rights of anti-abortion pregnancy counseling centers.
The Baltimore ordinance requires pregnancy counseling centers to post a sign saying they don't provide abortions or birth control.
In an 8-4 decision, the 4th U.S. Circuit Court of Appeals ruled that U.S. District Judge Marvin J. Garbis improperly refused to allow discovery and committed other procedural errors in granting the Greater Baltimore Center for Pregnancy Concerns Inc.'s request to strike down the municipal ordinance requiring it to post the disclaimers. The appeals court made clear that it was not ruling on the merits of the center's First Amendment claim.
In a related case, the appeals court affirmed another judge's decision prohibiting enforcement of a key provision of a similar ordinance in Montgomery County, Md. The appeals court said in its 8-3 decision that the judge's ruling in favor of the Centro Tepeyac pregnancy center, was not marred by the kind of procedural flaws that compelled the court to return the Baltimore case to the trial court.
The Montgomery County law requires centers to post a notice that they don't have a medical professional on staff, and that county health officials recommend that women who may be pregnant see a doctor. The lower court enjoined enforcement of the second statement, but not the one dealing with absence of a medical professional on staff.
Thirteen months ago, a three-judge panel of the appeals court found both ordinances unconstitutional. The local governments appealed their respective cases to the full appeals court.
The centers claimed the ordinances infringed on constitutionally protected speech. The local governments described the laws as consumer protections targeting commercial speech, which is not entitled to the same level of scrutiny as religious or political speech.
"Although it may not ultimately prove meritorious, the city's commercial speech theory should not have been so easily dismissed by the district court," Judge Robert King wrote in the majority opinion in the Baltimore case.
He wrote that Grabis improperly denied the city the opportunity to develop expert testimony and other evidence tending to refute the center's claims. Grabis agreed with the center that discovery was not needed because the ordinance was unconstitutional on its face.
In one of two dissenting opinions, Judge J. Harvie Wilkinson III said the majority "fails to respect the Center's right not to utter a state-sponsored message that offends its core moral and religious principles."
He also suggested that if the ordinance is ultimately upheld, the majority may have set a precedent it will regret.
"For compelled speech can serve a pro-life agenda for elected officials as well as a pro-choice one," he wrote. "It is easy to imagine legislatures with different ideological leanings from those of the Baltimore City Council enacting measures that require organizations like Planned Parenthood to post a statement in their waiting rooms indicating what services they do not provide."
Wilkinson also wrote a dissenting opinion in the Montgomery County case, saying both mandated statements should have been prohibited.
"Because the dangers of compelled speech are real and grave, courts must be on guard whenever the state seeks to force an individual or private organization to utter a statement at odds with its most fundamental beliefs," he wrote.