SAN FRANCISCO — The California Ninth District Court of Appeal recently ruled in favor of the City of San Francisco to dismiss a claim by pregnancy center First Resort that a city ordinance violates its constitutional right to free speech.
On June 27, Judge Dorothy Nelson delivered the opinion, voicing the court’s disapproval of the growing number of pregnancy centers in California that intentionally seek to mislead pregnant women, creating a national problem.
“False and misleading advertising by clinics that do not provide abortions, emergency contraception or referrals to providers of such services has become a problem of national importance,” Nelson said in the appeals court decision.
The case stems from a city ordinance, dubbed the Pregnancy Information Disclosure and Protection Ordinance, that was passed in San Francisco in 2011. The ordinance prohibits limited services pregnancy centers (LSPCs) from false advertising to obtain clients in search of abortion options or from to disseminating untrue or misleading information about their services.
After the ordinance passed, First Resort, a LSPC in San Francisco, filed a suit against the city, alleging freedom of expression, equal protection, void for vagueness and state law preemption claims. Following the trial court’s ruling, First Resort appealed the decision, claiming the same factors.
First Resort allegedly advertises that they offer abortion information, resources and compassionate support for women facing the crucial decisions that surround unintended pregnancies and are considering abortion.
The LSPC allegedly uses advertisements such as Google AdWords to compete with abortion providers for viewers’ attention. If a person searched key words like “abortion" and “San Francisco,” First Resort’s website would be pulled up. However, First Resort does not provide abortions or emergency contraception to its patients, nor does it refer its patients to other facilities for such services. First Resort is anti-abortion, stating that its goal to “build an abortion-free world,” which it allegedly does not advertise.
The court categorized First Resort’s web advertising as commercial speech that is false or misleading and dismissed First Resort’s claim that its advertising was protected speech because it receives no fees for services. Nelson, however, ruled that because First Resort has a clear economic motivation to produce successful advertisements, the advertisements receive no First Amendment protection.
Nelson said First Resort’s “argument that a person of ordinary intelligence cannot possibly know what speech the ordinance regulates is unpersuasive” and dismissed First Resort’s claim that the ordinance is invalid because it is unconstitutionally vague. The ordinance stipulates that the city does not intend to regulate, limit or curtail advocacy and respects the right to counsel against abortions.
First Resort claimed that it was being discriminated against for being anti-abortion, but the appeals court clarified that the right of conscience means that the government cannot compel an entity to say something that they don’t believe in.
“The ordinance does not require First Resort to say anything affirmative about abortion beliefs; it only requires that they not say something that would mislead prospective clients," Nelson said in the decision.
Nelson also expressed the court’s disapproval of the growing number of CPCs in California that intentionally seek to mislead pregnant women.
“From the city’s perspective, such deception is harmful, especially to indigent women facing unintended pregnancies," Nelson said in the opinion. "For these women, time is of the essence, and even a few days delay in accessing emergency contraception or abortion services can render less invasive options unavailable.”
Judge A. Wallace Tashima dissented only regarding the question of whether the ordinance is preempted by state law, and suggested that the issue be taken to the California Supreme Court.