4th Circuit En Banc Decides 2 Limited-Service Pregnancy Center Disclaimer Cases

A sharply divided 4th Circuit Court of Appeals sitting en banc yesterday reversed on procedural grounds a district court opinion that invalidated a Baltimore ordinance requiring limited-service pregnancy centers to post disclaimers. The required signs must say that the facility does not provide or make referrals for abortions or certain birth-control services.  In Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore, (4th Cir., July 3, 2013), in an opinion joined by 8 of the 12 judges hearing the case, the court said:

We refrain today from evaluating the ultimate merits of the Center’s claims, however, focusing instead on the preliminary errors made by the district court as it rushed to summary judgment. Those errors include the court’s denial to the City of essential discovery, its refusal to view in the City’s favor what evidence there is, and its verboten [sic.] factual findings, many premised on nothing more than its own supposition. In these circumstances, it is fitting to simply vacate and remand for properly conducted proceedings.

Judge Niemeyer wrote a dissent joined by Judges Wilkinson, Shedd, and Agee, saying in part:

Even though the City may have a compelling interest in preventing misrepresentations about abortion, it is not free to impose a requirement of speech on those who do not misrepresent. 

Judge Wilkinson also filed a separate dissent, saying in part:

In a case concerning a law that requires private, noncommercial organizations to convey a government-authored message, one would expect to find at least some acknowledgement of the dangers of state-compelled speech. But one will search the majority’s opinion in vain for any such recognition. Instead, the majority opts to opine on various points of civil procedure, apparently oblivious to the fact that litigation is not an end in itself, but a means of vindicating the substantive values underlying our legal order, among which I had hitherto supposed were the freedoms of conscience and belief.

(See prior related posting.)

A second case decided yesterday involved a Montgomery County, Maryland Resolution requiring limited-service pregnancy centers to post signs saying they do not have a licensed medical professional on staff, and that "the Montgomery County Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider."  The 4th Circuit, en banc, in an 11-3 decision, affirmed a district court's preliminary injunction against enforcement of second part of the disclaimer requirement.  In Tepeyac v. Montgomery County, (4th Cir., July 3, 2013), the majority held that the district court applied the proper preliminary injunction standard and did not abuse its discretion.

Judge Wilkinson filed a concurring opinion. Judge Niemeyer filed a dissent that was joined by Judges Shedd and Agee arguing that both parts of the required disclaimer are unconstitutional.

The Washington Post reports on both decisions.