NY AG Enjoined from Enforcing False Advertising Ban Against Clinics Promoting Abortion Pill Reversal

In National Institute for Family & Life Advocates v. James, (WD NY, Aug. 22, 2024), a New York federal district court preliminarily enjoined New York's Attorney General from enforcing New York's false advertising law against two pregnancy centers that promote abortion pill reversal in their promotional material and on their websites. The court said in part:

In short, a "morally and religiously motivated offering of free services cannot be described as a bare 'commercial transaction.'"... As such, the speech at issue here is not commercial.... . Nothing could be fundamentally less commercial than this speech about how a woman might save her pregnancy....

Because Plaintiffs' speech is noncommercial, restrictions are subject to strict scrutiny.... The State's enforcement of the New York Statutes against pro-life pregnancy centers based on their speech about APR is a content-based restriction, as it "target[s] speech based on its communicative content."... It is also viewpoint-based. The Attorney General targets statements supporting the APR protocol....

At the preliminary injunction hearing, the State conceded that it does not attempt to satisfy strict scrutiny. And the record is devoid of anything to suggest that this standard could be met....

NY Sues Crisis Pregnancy Centers for False Advertising

New York's Attorney General filed suit this week in a New York state trial court against eleven crisis pregnancy centers and their parent organization alleging that they have violated the state's deceptive business practices and false advertising laws in promoting abortion pill reversal. The complaint (full text) in People of the State of New York v. Heartbeat International, Inc., (NY County Sup. Ct., filed 5/6/2024), alleges in part:

There is no competent and reliable scientific evidence to substantiate Defendants’ claims about APR’s efficacy and safety, including the central promise that APR can “reverse” the “abortion pill.”  The process has never been FDA approved, and researchers and major medical professional associations in the United States and abroad, including the American College of Obstetricians and Gynecologists (“ACOG”), have warned that it is unproven and unscientific. 

New York Attorney General Letitia James issued a press release announcing the filing of the lawsuit.

Jewish Students Sue Columbia University Charging Pervasive Antisemitism

Suit was filed last week in a New York federal district court by Jewish and Israeli students at Columbia University charging the University with widespread antisemitism.  The complaint (full text) in Students Against Antisemitism, Inc. v. Trustees of Columbia University in the City of New York, (SDNY, filed 2/21/2024) alleges violations of Title VI of the 1964 Civil Rights Act, of New York state and city Human Rights and Civil Rights Laws, breach of contract and deceptive business practices. The 114-page complaint reads in part:

Columbia ... has for decades been one of the worst centers of academic antisemitism in the United States.  Since October 7, 2023, when Hamas terrorists invaded Israel ...antisemitism at Columbia has been particularly severe and pervasive.... 

Columbia’s antisemitism manifests itself in a double standard invidious to Jews and Israelis.  Columbia selectively enforces its policies to avoid protecting Jewish and Israeli students from harassment, hires professors who support anti-Jewish violence and spread antisemitic propaganda, and ignores Jewish and Israeli students’ pleas for protection.  Those professors teach and advocate through a binary oppressor-oppressed lens, through which Jews, one of history’s most persecuted peoples, are typically designated “oppressor,” and therefore unworthy of support or sympathy.  Columbia permits students and faculty to advocate, without consequence, for the murder of Jews and the destruction of Israel, the only Jewish country in the world....

... Columbia has permitted endemic antisemitism to exclude Jewish and Israeli students from full and equal participation in, and to deprive them of the full and equal benefits of, their educational experience at Columbia, and has invidiously discriminated against them by, among other things, failing to protect them in the same way Columbia has protected other groups.... [I]t has responded to antisemitism with at best deliberate indifference....

Columbia Spectator reports on the lawsuit.

Colorado Bakery, In Court Again, Loses Attempt to Dismiss Transgender Discrimination Claim

 In Scardina v. Masterpiece Cakeshop, Inc.,(CO Dist. Ct., March 4, 2021), a Colorado state trial court dismissed Colorado Consumer Protection Act claims against a bakery that has been the subject of extensive litigation over its refusal to design wedding cakes for same-sex weddings. In the current case, plaintiffs claimed that the bakery engaged in misleading advertising indicating that they would sell birthday cakes to LGBT individuals. The court dismissed the claim because "the most salient materials Plaintiff allegedly relied on are not advertisements," but were news articles and op-eds. However the court refused to dismiss plaintiff's Colorado Anti-Discrimination Act claim that she was discriminated against because of her transgender status when plaintiff refused to make a blue and pink cake celebrating her gender transition. The court said in part:

Whether making Plaintiff’s requested cake is inherently expressive, and thus protected speech, depends on whether Defendants would thereby convey their own particularized message, and whether the likelihood is great that a reasonable observer would both understand the message and attribute that message to Defendants.... The Court cannot conclude, based on the current record, that the act of making a pink cake with blue frosting, at Plaintiff’s request, would convey a celebratory message about gender transitions likely to be understood by reasonable observers. Further, to the extent the public infers such a message, that message is far more likely to be attributed to Plaintiff, who requested the cake’s simple design. Therefore, if Defendants violated CADA here, they have not shown that their freedom of speech would be violated by holding them liable.

State False Advertising Ban Does Not Apply To Catholic Schools

In State of West Virginia ex. rel. Morrisey v. Diocese of Wheeling-Charleston, (WV Cir. Ct., Nov. 6, 2019), a West Virginia Trial Court held that West Virginia's Consumer Credit and Protection Act does not apply to religious institutions' advertising or sale of educational or recreational services.  In the case, plaintiffs contended that the Diocese engaged in deceptive acts or practices by failing to disclose that in the past it had knowingly employed some priests and laity that had sexually abused children while it advertises a safe learning environment in its schools and camps. The court also held that application of the Act to religious schools would involve an unconstitutional excessive entanglement of church and state. After reaching its conclusions, the trial court stayed the action and certified the questions raised in the case to the West Virginia Supreme Court. The Intelligencer reports on the decision. [Thanks to Mark Chopko for the lead.]