Casey Meets the Crisis Pregnancy Centers

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 884 (1992).

Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd., 502 U.S. 105, 115–118 (1991).

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,515 U.S. 557, 573 (1995) (internal quotation marks and citation omitted).

See Post R. , “Informed Consent to Abortion: A First Amendment Analysis of Compelled Physician Speech,” University of Illinois Law Review 2007, no. 3 (2007): 939–990, at 952–953.

Funder J. W. , “Medicine as a Profession,” Clinical Medicine 10, no. 3 (2010): 246–247, at 247.

Casey,505 U.S. at 884.

Id. See also Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985) (holding that compelled commercial speech does not violate the First Amendment when the required disclosure is “reasonably related to the State's interest in preventing deception of consumers”).

Lowe v. Securities and Exchange Commission, 472 U.S. 181, 210 (1985).

Id.

Id. (noting “there can be no doubt about the protected character of the communications, a matter that concerned Congress when the exclusion was drafted”).

Id., at 229 (White, J., concurring).

Id., at 230.

Id., at 232.

Halberstam D. , “Commercial Speech, Professional Speech, and the Constitutional Status of Social Institutions,” University of Pennsylvania Law Review 47, no. 4 (1999): 771–874, at 843, 852.

See id., at 844 (pointing to the fact that “a plaintiff in a malpractice case must demonstrate that the challenged advice not only was issued by a physician, but that it was conveyed in the context of an established physician-patient relationship”).

See Post, supra note 4, at 949.

Id., at 979; see also Post R. , “The Constitutional Status of Commercial Speech,” UCLA Law Review 48, no. 1 (2000): 1–57, at 40.

See Post, supra note 4, at 952.

See Stuart v. Loomis, 992 F. Supp. 2d 585 (M.D.N.C. 2014) aff'd. 774 F.3d 238 (4th Cir. 2014) see also Stuart, 774 F.3d. at 248.

Stuart, 992 F. Supp. 2d, at 599–60.

Id.

Id., at 600–601.

Id., at 600; see also Stuart, 774 F.3d at 251–54.

Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 536–37 (2001).

Id., at 544.

Keller v. State Bar of California, 496 U.S. 1, 13 (1990).

Moore-King v. County of Chesterfield, 708 F.3d 560, 569 (4th Cir. 2013) (“Moore-King's activities fit comfortably within the confines of professional speech analysis.”).

Id., at 568–69 citing Thomas v. Collins, 323 U.S. 516, 545 (1945) (Jackson, J., concurring).

See Funder, supra note 5, at 246.

See Bernstein E. Lee T. J. , “Where the Consumer Is the Commodity: The Difficulty with the Current Definition of Commercial Speech,” Michigan State Law Review 2013, no. 1 (2013): 39–82, at 55–61; Halberstam , supra note 14; Thomson H. B. , “Whither Central Hudson? Commercial Speech in the Wake of Sorrell v. JMS Health,” Columbia Journal of Law and Social Problems 47, no. 1 (2013): 171–206, at 172.

U.S. v. United Foods, Inc., 533 U.S. 405, 409 (2001).

See Halberstam , supra note 14, at 853–854.

San Diego Committee Against Registration and the Draft (Card) v. Governing Bd. of Grossmont, 790 F.2d 1471, 1478 (9th Cir. 1986) see also Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 633 (1980) (suggesting that nonprofit solicitations may involve commercial speech, which is often “intertwined with” noncommercial speech); Gaudiya Vaishnava Soc. v. City and County of San Francisco, 952 F.2d 1059, 1064 (9th Cir. 1990) (noting that nonprofits were engaged in commercial speech as well as “pure” speech); First Resort, Inc. v. Herrera, 2015 WL 739512, at *6-*9 (N.D. Cal. Feb. 20, 2015) (holding that a non-profit crisis pregnancy center was engaging in commercial speech when it advertised its services).

Thompson v. Western States Medical Center, 535 U.S. 357, 367 (2002) (quoting Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y., 447 U.S. 557, 566 (1980) (citations omitted).

See Guttmacher Institute, State Policies in Brief: Counseling and Waiting Periods for Abortion (June 1, 2014), available at <http://www.guttmacher.org/statecenter/spibs/spib_MWPA.pdf> (last accessed February 17, 2015).

S.D.C.L. § 34–23A10.1(1)(b)-(c) cited in Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, 653 F.3d 662, 665–666 (8th Cir. 2011).

N.C. Gen. Stat. § 90–21.85(a) (cited in Stuart v. Loomis, 992 F. Supp. 2d 585). States have also required abortion providers to give information that is at least arguably medically inaccurate, such as stating that abortion was associated with an “increased risk” of suicide, Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, 686 F.3d 889 (8th Cir. 2012) (en banc) (upholding the requirement), and that a 19-week fetus “may be able to survive outside the womb,” Summit Medical Center of Alabama v. Siegelman, 227 F. Supp. 2d 1194 (M.D. Ala. 1194) (declining to issue a preliminary injunction against the provision). Although state-compelled, medically inaccurate disclosures also raise serious First Amendment concerns, this article focuses primarily on compelled ideological statements.

Sanger C. , “Seeing and Believing: Mandatory Ultrasound and the Path to a Protected Choice,” UCLA Law Review 56, no. 1 (2008): 351–408, at 379.

Stuart v. Camnitz, 774 F.3d 238 (4th Cir. 2014). The only U.S. court of appeals cases dealing with ideological informed consent requirements after Casey are Rounds, 686 F.3d 889 (8th Cir.2012), and Texas Medical Providers Performing Abortion Services v. Lakey, 667 F.3d 570 (5th Cir. 2012) (upholding a requirement that physicians display and describe an ultrasound and fetal heartbeat and that the woman listen to them). The U.S. District Court for the Middle District of North Carolina recently struck down the requirement that physicians perform and describe an ultrasound to patients, even unwilling ones, before an abortion. Stuart, 992 F. Supp. 2d 585. And in Planned Parenthood of the Heartland v. Heineman, 724 F. Supp. 2d 1025 (D. Neb. 2010), the district court found that the plaintiffs had a likelihood of success on the merits of their First Amendment challenge to disclosure requirements that required physicians to discuss non-standard and non-medical “risks” of abortion. Id., at 1032, 1048. That case settled without appeal. See Planned Parenthood of the Heartland v. Heineman, 2010 4609299 (D. Neb. Nov. 4, 2010) Finally, the district court issued a preliminary injunction against a requirement that abortion providers link to a government website stating, among other things, that “pregnancy begins at conception.” Comprehensive Health of Planned Parenthood of Kansas and Mid-Missouri, Inc. v. Templeton, No. 13–2302-KHV, 2013 WL 3322332 (D. Kan. June 30, 2013) It appears that summary judgment motions are currently pending in that case. Plaintiffs were unsuccessful in challenging a required statement as to when human life begins in Planned Parenthood of Indiana, Inc. v. Commissioner of the Indiana Department of Health, 794 F.Supp.2d 892, 918–19 (S.D. Ind. 2011), rev'd in part on other grounds, 699 F.3d 962 (7th Cir. 2012).

Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, 530 F.2d 724, 729 (8th Cir. 2008) (en banc) (quoting Planned Parenthood v. Rounds, 375 F. Supp. 2d 881, 887 (D.S.D. 2005)).

Id., at 734–35; see also Casey, 505 U.S. at 882.

Rounds, 530 F.3d at 734–736.

Lakey, 667 F.3d at 578–580.

Stuart, 992 F. Supp. 2d at 605–609; see also Stuart, 774 F.3d at 253–54 (“The rupture of trust comes with replacing what the doctor's medical judgment would counsel in a communication with what the state wishes told. It subverts the patient's expectations when the physician is compelled to deliver a state message bearing little connection to the search for professional services that led the patient to the doctor's door.”).

Gallacher K. , “Protecting Women from Deception: The Constitutionality of Disclosure Requirements in Pregnancy Centers,” Women's Rights Law Reporter 33, no. 1, 113–149, at 117–118 (2011).

Id.

Id. see also Chen A. , “Crisis Pregnancy Centers: Impeding the Right to Informed Decision Making,” Cardozo Journal of Law & Gender 19, no. 3 (2013): 933–960, at 935–936.

See Committee on Government Reform, U.S. House of Representatives, “False and Misleading Information Provided by Federally Funded Pregnancy Resource Centers,” Prepared for Rep. Henry A. Waxman (July 2006) (documenting false information provided by CPCs) Gallacher , supra note 42, at 124–129.

N.Y.C. Admin. Code § 20–816(a)-(e) (cited in Evergreen Association v. City of New York, 740 F.3d 233 (2d Cir. 2014) cert. denied, 135 S.Ct. 435 (Nov. 3, 2014)). A petition for certiorari was filed in the Evergreen case in June of 2014.

Montgomery County Board of Health Resolution No. 16–1252 (cited in Centro Tepeyac v. Montgomery County, 722 F.3d 184, p, (4th Cir. 2013)).

City of Baltimore Ordinance 09–252 (cited in Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore, 721 F.3d 264, 271 (4th Cir. 2013).

Evergreen, 740 F.3d at 245 (holding that either intermediate or strict scrutiny applied) Centro Tepeyac v. Montgomery County, 722 F.3d 184, 192 (4th Cir. 2013) (upholding district court's decision to apply strict scrutiny on appeal of preliminary injunction) see also O'Brien v. Mayor & City Council of Baltimore, 768 F. Supp. 2d 804, 814 (D. Md. 2011) (concluding “that the Ordinance regulates the Plaintiffs' fully protected non-commercial speech so that strict scrutiny is triggered”), aff'd sub nom. Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Baltimore, 683 F.3d 539 (4th Cir. 2012) on reh'g en banc, 721 F.3d 264 (4th Cir. 2013) and aff'd in part, vacated in part, remanded sub nom. Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Baltimore, 721 F.3d 264 (4th Cir. 2013).

Evergreen, 740 F.3d at 245 & n.6.

Centro Tepeyac, 779 F. Supp. 2d 456, 468 (D. Md. 2011).

Id., at 463–464, 467. Although non-profit entities might be engaging in commercial speech when they solicit funds, such solicitation was not involved in the CPC cases. Riley v. National Fed'n of the Blind, 487 U.S. 781, 796 (1988).

Evergreen, 740 F.3d at 250, 251; Centro Tepeyac, 722 F.3d at 192.

Evergreen, 740 F.3d at 247–248. Centro Tepeyac, 722 F.3d at 192. In Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Baltimore, the en banc Fourth Circuit held that the district court abused its discretion in striking down without an opportunity for discovery the requirements that CPCs disclose the limited nature of their services. Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Baltimore, 721 F.3d 264 (4th Cir. 2013).

Evergreen, 740 F.3d at 247–251.

Centro Tepeyac, 722 F.3d at 190.

Greater Baltimore Ctr. for Pregnancy Concerns, 721 F.3d at 292–293 (Wilkinson, J., dissenting).

Id., at 294.

Id., at 296–297.

See Post, supra note 17, at 5 (“The boundaries of the category [of commercial speech] are thus quite blurred.”).

See Burrows M. , “The Cubbyhole Conundrum: First Amendment Doctrine in the Face of Deceptive Crisis Pregnancy Center Speech,” Columbia Human Rights Law Review 45, no. 3 (2014): 896–954, at 901–902, 919–931; Keighley J. , “Can You Handle the Truth? Compelled Commercial Speech and the First Amendment,” University of Pennsylvania Journal of Constitutional Law 15, no. 2 (2012): 539–616, at 542–543 (noting “the First Amendment doctrine's confused definition of commercial speech”).

See Keighley , supra note 64, at 603–04 (criticizing courts for focusing too much on the religious motive for the speech).

See Burrows , supra note 64, at 925 (noting that “the speech of those engaged in unlicensed occupations” is generally fully protected under the First Amendment).

See supra Part I.B.

See Post, supra note 4, at 952; Halberstam , supra note 14, at 833–834.

See Keighley , supra note 64, at 604.

Evergreen, 740 F.3d at 249.

Id.

Id. (emphasis added).

Id., at 250.

Tepeyac, 779 F. Supp. 2d at 467.

Teypeyac, 722 F.3d at 193 ( Wilkinson J. , concurring) (emphasis added).

550 U.S. 124 (2007).

Rounds, 530 F.3d at 734.

Id.

Lakey, 667 F.3d at 576 (citing Casey, 505 U.S. at 871).

Id., at 580.

Hill B. J. , “What Is the Meaning of Health? Constitutional Implications of Defining ‘Medical Necessity’ and ‘Essential Health Benefits’ Under the Affordable Care Act,” American Journal of Law and Medicine, vol. 38, no. 2 & 3 (2012): 445–470, at 448–451.

Oral argument in McCullen v. Coakley, 134 S. Ct. 2518, 2014 WL 144977 (Jan. 15, 2014).

Id., at *29.

134 S. Ct. 2518, 2527 (2014).

Id., at 2527–2536. Indeed, at one point the opinion literally has it both ways, noting that “[a] group of individuals can obstruct clinic access and clog sidewalks just as much when they loiter as when they protest abortion or counsel patients.” Id., at 2531 (emphasis added).

421 U.S. 809 (1975).

Id., at 815 n.5.

Id., at 822.

Bigelow v. Commonwealth, 191 S.E.2d 173, 195 (Va. 1972) rev'd, 413 U.S. 909 (1973) See also Dent v. State of West Virginia, 129 U.S. 114, 121–123 (1889).

Id., at 196.

463 U.S. 60, 67 (1983).

Id., at 67–68, 69.

Id., at 70–71 and n.19.

Guttmacher Institute, Fact Sheet: Contraceptive Use in the United State (Aug. 2013), available at <http://www.guttmacher.org/pubs/fb_contr_use.html> (last visited February 17, 2015).

See, e.g., § 4(c) of Alabama House Bill 57, Reg. Sess. (2013).

See, e.g., Cal. Bus. & Prof. Code § 1701.1 (West 2011) N.J. Stat. Ann. § 2C:21–20 (West).