Week of January 1, 2018 through January 5, 2018
Greater Baltimore Center v. Mayor and City Council (Wilkinson 1/5/2018): The Fourth Circuit held that ordinances requiring pregnancy centers that do not offer abortion services or referrals to post a conspicuous notice of this fact in waiting rooms violate the First Amendment to the United States Constitution. The court reasoned that one such ordinance, as applied to a pregnancy services center that provided only free services and did not advertise deceptively, failed to satisfy heightened First Amendment scrutiny because the city did not prove the inefficacy of less restrictive alternatives, provide concrete evidence of deception, or more precisely target its regulation. Thus, the court affirmed the decision of the district court granting summary judgment to the Greater Baltimore Center for Pregnancy Concerns, Inc. Full Opinion
U.S. EEOC v. Maryland Insurance Admin (Keenan 1/5/2018): The Fourth Circuit held that a company using a facially gender-neutral compensation system to place Equal Pay Act claimants and comparators on different steps of the pay scale at different starting salaries must still present evidence that the job-related distinctions underlying the salary plan, including prior state employment, in fact motivated the company to pay the different salaries. The court also held a jury would not be compelled to find that male comparator’s credentials and prior work experience were, in fact, the reasons for the disparity in pay awarded to the female claimants, as that was an issue of fact to be weighed by the jury against the other evidence in the case. The court thus vacated the district court’s order granting summary judgment to the Maryland Insurance Administration and remanded the case for further proceedings. Full Opinion
Russell Moody v. Huntington Ingalls Inc. (Gregory 1/3/2018): The Fourth Circuit held that a retired employee who experienced a workplace injury prior to retirement may continue to draw disability benefits after retirement. The court reasoned that voluntary retirement before the onset of a workplace injury’s debilitating effects does not preclude the existence of a “disability” under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §§901, 902(10), 908. The court thus reversed the decision of the Benefits Review Board that denied the plaintiff’s benefits and remanded for further proceedings. Full Opinion
Greater Baltimore Center v. Mayor and City Council, No. 16-2325
Decided: January 5, 2018
The Fourth Circuit held that ordinances requiring pregnancy centers that do not offer abortion services or referrals to post a conspicuous notice of this fact in waiting rooms violate the First Amendment to the United States Constitution. The court reasoned that one such ordinance, as applied to a pregnancy services center that provided only free services and did not advertise deceptively, failed to satisfy heightened First Amendment scrutiny because the city did not prove the inefficacy of less restrictive alternatives, provide concrete evidence of deception, or more precisely target its regulation. Thus, the court affirmed the decision of the district court granting summary judgment to the Greater Baltimore Center for Pregnancy Concerns, Inc.
The Greater Baltimore Center for Pregnancy Concerns (the “Center”) is a non-profit Christian organization committed to providing abortion alternatives to women with unplanned pregnancies. It provides pregnant women with many free pregnancy-related services, but does not provide or refer for abortions. This fact is clearly stated in a Commitment of Care pamphlet available in the Center’s waiting room. The Center puts out ads such as “free abortion alternatives.” The Mayor and City Council of Baltimore enacted Ordinance 09-252 on December 4, 2009 due to concerns that women seeking abortions might be misled into visiting pregnancy centers and delaying the abortion. The ordinance requires any “limited-service pregnancy center” to post a disclaimer in its waiting room notifying clients that it does not provide or make referrals for abortions or birth-control services. A violation of the ordinance allows Baltimore City’s Health commissioner to issue a notice directing the pregnancy center to comply. Failure to do so results in the issuance of a $150 citation. The Center falls into the definition of limited-service pregnancy center and was cited for violation of the ordinance.
The Center filed suit under 42 U.S.C. § 1983 seeking to enjoin enforcement of the ordinance for violating the Center’s First Amendment rights to free speech, assembly, and free religious exercise; the Fourteenth Amendment’s guarantee of equal protection; and Maryland law’s “conscience clause,” Md. Code Ann., Health-Gen. §20-214. The district court granted summary judgment for the Center, holding the ordinance violated the Free Speech Clause because it was not narrowly tailored to accomplish a compelling government interest. A panel of the Fourth Circuit Court of Appeals affirmed on appeal. Rehearing the case en banc, the court vacated the district court’s judgment and remanded for further proceedings, concluding further discovery was needed. After extensive discovery, the district court held that the ordinance, as applied to the Center, violated the First Amendment right to freedom of speech. This appeal followed.
First, the Fourth Circuit held that the Baltimore ordinance’s compulsion “to utter or distribute speech bearing a particular message” should receive heightened scrutiny. The City argued that a relaxed level of scrutiny applied because the regulation is a routine exercise of the state’s police power that targets commercial speech, or alternatively that targets professional speech. The court held that the ordinance, as applied to the Center, does not regulate commercial speech because nothing in the record suggests that the Center proposes any commercial transactions in the waiting room where the disclaimer would appear, and the Center collects no remuneration of any kind. Furthermore, it is not clear that the ordinance directly regulates the Center’s advertisement as the ordinance applies to pregnancy centers regardless of whether they advertise at all, and the record gives no indication that the Center harbors an economic motivation. The Fourth Circuit further held that the ordinance, as applied to the Center, does not regulate professional speech. The Center fits none of the characteristics of a professional speaker: Maryland pregnancy centers are not required to be licensed or otherwise subject to a state regulatory scheme; there is no medical or professional board that certifies the Center’s employees; there is no disciplinary panel that regulates their conduct; the volunteer “medical director,” a licensed physician, is very rarely on site and does not meet directly with clients; and none of the clients pay for the services. Importantly, the court recognized that the ordinance forced the Center “to utter in its own waiting room words at odds with its foundational beliefs and with the principles of those who have given their working lives to it.”
Second, the Fourth Circuit held that the Baltimore ordinance did not satisfy heightened scrutiny. The court first considered whether there was a weighty government interest involved. Baltimore’s stated goals in enacting the ordinance were to address allegedly deceptive advertising and to prevent health risks that can accompany delays in seeking to end a pregnancy. The court recognized the importance of a state’s ability to regulate deceptions and health risks. However, the court held that there was insufficient evidence to demonstrate that deception actually takes place and that health harms are in fact being caused by delays resulting from deceptive advertising. The court held the record only showed affirmative advocacy of abortion alternatives by a lawful non-profit group, and that none of the public advocacy of alternatives suggested that the Center would provide help or assistance in obtaining an abortion. The court held that truthful affirmative assertions are not, without more, misleading. The court found troubling that the ordinance applied solely to speakers who talk about pregnancy-related services but not to speakers on any other topic, and that the ordinance compelled speech from pro-life pregnancy centers, but not other pregnancy clinics that offer or refer for abortion. The court held that a speech edict aimed directly at those pregnancy clinics that do not provide or refer for abortions is neither viewport nor content neutral.
The court then held that the ordinance was not narrowly-tailored because the City could pursue its goals through less restrictive means and because there was only a loose fit between the compelled disclosure at issue and the purported ills identified by the government. The ordinance was over inclusive because the city sought to combat deceptive advertising and consequently delays in abortion services by requiring a notice instead of directly applying laws that prohibit misleading advertising. The court held that, without proving the inefficacy of less restrictive alternatives, providing concrete evidence of deception, or more precisely targeting its regulation, the City could not prevail and the Baltimore ordinance, as applied to the Center, failed to satisfy heightened First Amendment scrutiny.
Accordingly, the Fourth Circuit affirmed the decision of the district court granting summary judgment to the Center and dismissed the case.
Jennifer M. Greene