Docket No. 17-724 IN THE October Term, 2017 CITY OF NORTH GREENE, Petitioner, v. GREENE FAMILY PLANNING CENTER, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT BRIEF FOR PETITIONER Team No. 17 Counsel for Petitioner September 22, 2017
QUESTIONS PRESENTED I. Whether the Fourteenth Circuit Court of Appeals improperly found that the City of North Greene s Ordinance violates the Free Speech Clause of the First Amendment of the United States Constitution? II. Whether the Fourteenth Circuit Court of Appeals incorrectly found that the City of North Greene s Ordinance violates the Free Exercise Clause of the First Amendment of the United States Constitution? i
TABLE OF CONTENTS QUESTIONS PRESENTED...i TABLE OF CONTENTS...ii TABLE OF AUTHORITIES...iv OPINIONS BELOW...viii STATEMENT OF JURISDICTION...viii CONSTITUTIONAL PROVISIONS INVOLVED...viii STANDARD OF REVIEW...ix STATEMENT OF THE CASE...1 SUMMARY OF THE ARGUMENT...3 ARGUMENT...4 I. THE ORDINANCE DOES NOT VIOLATE THE FREE SPEECH CLAUSE BECAUSE IT IS A REASONABLE REGULATION ON THE PRACTICE OF MEDICINE AND IS PERMISSIBLE UNDER THE PROFESSIONAL SPEECH DOCTRINE...4 A. The Ordinance Is A Content-Based, Viewpoint-Neutral Regulation Making It Eligible For Review Under Intermediate Scrutiny...7 B. As Supported By A Circuit Consensus And This Court s Decision In Casey, Regulations On Abortion-Related Disclosures Are Subject To At Most Intermediate Scrutiny...12 C. The Ordinance Is A Permissible Regulation Of Professional Speech...16 D. Because The Ordinance Regulates Professional Speech, It Is Subject To Intermediate Scrutiny A Standard It Far Surpasses...23 E. Even If This Court Finds That The Ordinance Is Subject To Strict Scrutiny, It Surpasses Such Review Because It Employed The Least Restrictive Means To Serve Its Compelling Interest...26 ii
II. THE ORDINANCE IS A NEUTRAL LAW OF GENERAL APPLICABILITY AND IS CONSTITUTIONAL UNDER ANY LEVEL OF SCRUTINY...26 A. The Ordinance Is Facially Neutral Because It Makes No Reference To Any Religious Practice, Conduct, Or Motivation...27 B. The Ordinance Is Operationally Neutral Because It Is Designed To Ensure Access To Reproductive Health Services And Not To Discriminate On The Basis Of Religion, Or Religious Practice...28 C. The Fourteenth Circuit Erred In Applying A Hybrid Exception To The Smith Rule Of Rational Basis Review...36 CONCLUSION...39 iii
TABLE OF AUTHORITIES CASES Abdus-Shahid v. Mayor & City Council of Baltimore, 674 Fed. Appx. 267 (4th Cir. 2017)...28 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)...ix Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004)...37 Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir. 2004)...30 Bd. of Trustees of the State Univ. of N.Y. v. Fox, 492 U.S. 469 (1989)...23 Brown v. Hot, Sexy and Safer Prods., Inc., 68 F.3d 525 (1st Cir. 1995)...37 Celotex Corp. v. Catrett, 477 U.S. 317 (1986)...ix Cent. Hudson Gas & Elec. Corp v. Pub. Serv. Comm n of N.Y., 447 U.S. 557 (1998)...5 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)...Passim Combs v. Homer-Center Sch. Dist., 540 F.3d 231 (3d Cir. 2008)...30 Conant v. Walters, 309 F.3d 629 (9th Cir. 2002)...9 EEOC v. Catholic Univ. of Am., 83 F3d 455 (D.C. Cir. 1996)...37 Employment Div., Dep t of Human Res. of Ore. v. Smith, 494 U.S. 872 (1990)...35 Evergreen v. Ass n Inc. v. City of N.Y., 740 F.3d 233 (2d Cir. 2014)...24, 26 iv
Gonzales v. Carhart, 550 U.S. 124 (2007)...6 Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643 (10th Cir. 2006)...30 Greene Family Planning Centers v. City of Greene, 2017 WL 1234567 (14th Cir. 2017)...Passim In re Primus, 436 U.S. 412 (1978)...21, 22 King v. Governor of the State of N.J., 767 F.3d 216 (3d Cir. 2014)...6 Kissinger v. Bd. Of Trustees, 5 F.3d 177 (6th Cir. 1993)...36 Kovacs v. Cooper, 336 U.S. 77 (1949)...4 Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253 (3d Cir. 2007)...33 Lowe v. S.E.C., 472 U.S. 181 (1985)...17, 18 Madsen v. Women s Health Ctr., Inc., 512 U.S. 753, 767 (1994)...24 McTernan v. City of York, Pa., 564 F3d 636 (3d Cir. 2009)...37 Miller v. Reed, 176 F.3d 1202 (9th Cir. 1999)...37 Moore-King v. County of Chesterfield, Va., 708 F.3d 560 (4th Cir. 2013)...5, 22 Nat l Inst. of Family & Life Advocates v. Harris, 839 F.3d 823 (9th Cir. 2016)...Passim NIFLA v. Harris, 839 F.3d 823 (9th Cir. 2016)...5 v
Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014)...Passim Planned Parenthood Minn., N.D., S.D., v. Rounds, 530 F.3d 724 (8th Cir. 2008)...6, 13, 14, 15 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)...Passim R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (1992)...5 Reed v. Town of Gilbert. 135 S.Ct. 2218 (2015)...Passim Riley v. Nat l Fed n of the Blind of N. Carolina, Inc., 487 U.S. 781 (1988)...7, 8 Rosenberger v. Rector and Visitors of Univ. of VA., 515 U.S. 819 (1995)...9 San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024 (9th Cir. 2004)...37 Sorrell v. IMS Health, Inc, 564 U.S. 552 (2011)...8, 10, 11, 23 Stormans, Inc. v. Wiesman, 764 F.3d 1064 (9th Cir. 2015)...28, 30 Stormans v. Selecky, 586 F.3d 1109 (9th Cir. 2009)...30 Stuart v. Camnitz, 774 F.3d 238 (4th Cir. 2014)...Passim Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570 (5th Cir. 2012)...6, 13, 14 Thomas v. Collins, 323 U.S. 516 (1945)...17 United States v. Swisher, 811 F.3d 299 (9th Cir. 2016)...12 vi
Watchtower Bible & Tract Soc y of N.Y., Inc. v. Vill. Of Stratton, 536 U.S. 150 (2002)...38 Wollschlaeger v. Governor of Florida, 760 F.3d 1195 (11th Cir. 2014)...5 CONSTITUTIONS AND STATUTES FED. R. CIV. P. 56(a)...ix U.S. CONST. AMEND. I...viii OTHER AUTHORITIES Daniel Halberstam, Commercial Speech, Professional Speech, and the Constitutional Status of Social Institutions, 147 U. PA. L. REV. 771 (1999)...19 Beth Holtzman, Have Crisis Pregnancy Centers Finally Met Their Match: California s Reproductive Fact Act, 12 NW. J. L. & SOC. POL Y 78 (2017)...7, 8, 16 Brief for Appellee, Nat l Inst. of Family & Life Advocates v. Harris, 839 F.3d 823 (9th Cir. 2016) (No. 15-CV-02277-JAH-DHB)...24, 25 Lindsey Schmidt, The Constitutional Right to an Abortion Does Not Encompass the Right to Be Uninformed: The Fourth Circuit's Puzzling Approach to Evaluating Mandatory Ultrasound Provisions in Stuart v. Camnitz, 95 NEB. L. REV. 1124 (2017)...17 Erika Schutzman, We Need Professional Help: Advocating for a Consistent Standard of Review When Regulations of Professional Speech Implicate the First Amendment, 56 B.C. L. REV. 2019 (2015)...16 An Overview of Abortion Law, GUTTMACHER INSTITUTE, https://www.guttmacher.org/state-policy/explore/overviewabortion-laws. (last visited Sept. 20, 2017)...10 Timothy Zick, Professional Rights Speech, 47 ARIZ. ST. L.J. 1289 (2015)...15, 17 vii
TO THE HONORABLE SUPREME COURT OF THE UNITED STATES: Petitioner, City of North Greene, the defendants in the United States District Court for the Eastern District of Greene and the appellees in the United States Court of Appeals for the Fourteenth Circuit, respectfully submit this brief-on-the-merits in support of its request that this Court reverse the judgment of the court of appeals. OPINIONS BELOW The opinion of the United States Court of Appeals for the Fourteenth Circuit appears in the record on pages 1-18 and is reported at Greene Family Planning Centers v. City of Greene, 2017 WL 1234567 (14th Cir. 2017). The Order granting certiorari by this Court appears on page 19 of the record. STATEMENT OF JURISDICTION A Formal Statement of Jurisdiction has been omitted in accordance with the Rules of the Billings, Exum & Frye National Moot Court Competition at Elon University School Of Law. CONSTITUTIONAL PROVISIONS INVOLVED The text of the First Amendment to the United States Constitution: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. U.S. CONST. AMEND. I. viii
STANDARD OF REVIEW The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). Such a dispute exists if a reasonable jury could return a verdict for the nonmoving party after all justifiable inferences are drawn in his or her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255 (1986). A factual dispute is genuine if the evidence would permit a reasonable jury to return a verdict for the nonmoving party, and a material fact is one that might affect the outcome of the suit under the governing law. Id. at 248. To sustain its motion, the moving party must show an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In essence, the inquiry at summary judgment is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 251-52. ix
STATEMENT OF THE CASE Summary of the Facts: The City of North Greene ( North Greene ) enacted Ordinance NG-16 ( the Ordinance ), to ensure that [a]ll residents of North Greene, regardless of income, have access to reproductive health services. Greene Family Planning Centers v. City of Greene, 2017 WL 1234567 (14th Cir. 2017). The City Council of North Greene ( the City Council ) enacted the Ordinance in response to an investigation that found a large number of North Greene residents are unaware of a city-funded reproductive health services program that provides women with immediate access to free or low-cost comprehensive family planning services and pregnancy-related care, including abortions. Id. at 3. Notably, the City Council determined that limited service family planning centers ( LSFPCs ) contribute to its residents lack of awareness of the program, by employing intentionally misleading practices that confuse and intimidate women from making fully informed decisions. Id. To increase awareness of the program, North Greene first attempted to inform residents by administering a public service announcement. Id. When the public service announcement failed to reach an effective amount of North Greene residents, North Greene enacted the Ordinance requiring LSFPCs to inform their clients of the existence of the program. Id. Before adopting the Ordinance, the City Council considered two reports a State of Greene report and a nationwide report both reporting that investigated LSFPCs provided false and misleading information about abortion risks, the effect of abortion on future fertility, and the mental health effects of abortion. Id. at 4. Additionally, North Greene conducted a debate meeting where the City Council heard testimony from citizens both in support and in opposition to the Ordinance. Id. In response to the reports and testimony, North Greene ultimately enacted the Ordinance and it became effective on January 1, 2017. Id. at 3. 1
The Ordinance applies to LSFPCs whose primary purpose is to provide pregnancyrelated services, but who do not provide information on, or refer its clients for, either abortions or comprehensive birth control services. Id. Further, the Ordinance requires that applicable LSFPCs provide notice to every client, either at the time the client checks-in or prior to meeting with a service provider to discuss family planning options, stating that North Greene provides access to family planning services, including abortions, to eligible women. Id. at 5. While the Ordinance provides the language for the notice, LSFPCs are permitted to create their own version of the notice, may state that the disclosure is required by North Greene, and can provide the notice with other disclosures and documents. Id. If an LSFPC fails to comply with the Ordinance, North Greene issues a citation requiring the center to correct the violation within 30 days, otherwise a $50.00 fine is administered every day it is in violation. Id. After the passage of the Ordinance, Greene Family Planning Centers ( Greene Family Planning ), an LSFPC with two locations in North Greene, failed to comply with the Ordinance by refusing to administer notice to its clients. Id. at 7. Greene Family Planning cited its pro-life agenda, stating that mandating notice would require the center to ensure that every conversation begins with the subject of abortion. Id. In response to Greene Family Planning s failure to adhere to the Ordinance, North Greene issued it a citation of violation, which the center ignored. Id. As a result, Greene Family Planning filed suit against North Greene alleging violations of the First Amendment under the doctrines of free speech and free exercise. Id. Summary of Proceedings: After expedited discovery, both parties filed motions for summary judgment in the United States District Court for the Eastern District of Greene ( Eastern District Court ) where the court properly granted North Greene s summary judgment finding no genuine issue of material fact on either allegation. See Id. at 2. Subsequently, Greene 2
Family Planning filed its notice of appeal seeking declaratory judgment, and both preliminary and permanent injunctions to prevent the enforcement of the Ordinance, in the United States Court of Appeals for the Fourteenth Circuit ( The Fourteenth Circuit ). Id. at 7. The Fourteenth Circuit incorrectly reversed the Eastern District Court, finding that the Ordinance violates both the First Amendment s Free Speech and Free Exercise clauses. Id. at 3. SUMMARY OF THE ARGUMENT This case presents the ideal opportunity for this Court to review the constitutionality of regulations on abortion-related disclosures and solidify an analytical framework for assessing such regulations in American jurisprudence. While this Court has noted on previous occasions States rights to regulate professions, through reasonable regulation and licensing, First Amendment challenges rooted in the Free Speech and Free Exercise clauses have arisen. Because of the uncertainty surrounding the applicable level of scrutiny applied to regulations on professional speech, clarification is required to resolve rising confusion. Free Speech Claim: The Fourteenth Circuit erred when it reversed the Eastern District Court s grant of North Greene s summary judgment on the free speech allegation because it failed to recognize that a majority of circuits, relying on this Court s precedence in Planned Parenthood of Southeastern Pennsylvania v. Casey, have applied at most intermediate scrutiny, even when reviewing content-based, abortion-related disclosures. 505 U.S. 833 (1992). North Greene s adoption of the Ordinance demonstrates its desire to provide its citizen with expansive reproductive health services, and to prevent the spread of coercive professional practices. The City Council carefully researched and conducted public debate, to craft the best way to address its stated goals. Because the Ordinance is carefully crafted and reasonably regulates the professional practice of medicine, it does not violate LSFPCs free speech rights. 3
Free Exercise Claim: The Fourteenth Circuit erred when it reversed the Eastern District Court s grant of North Greene s summary judgment on the free exercise allegation, because the Ordinance is a neutral law of general applicability and does not impermissibly burden LSFPCs freedom of religion. Based on this Court s decision in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the Ordinance does not infringe or restrict religious practice because it applies equally to all LSFPCs, irrespective of whether a center is religiously affiliated or not. 508 U.S. 520 (1993). Because North Greene implemented the Ordinance to spread the awareness of the availability of comprehensive reproductive health services, and not to conflict with religious LSFPCs, the Ordinance does not violate the Free Exercise clause. Because North Greene implemented a carefully crafted regulation aimed at providing free, or low-cost, reproductive health services, and protecting vulnerable individuals from intentionally misleading professional practices, this Court should reverse and remand the decision of the Fourteenth Circuit. ARGUMENT I. THE ORDINANCE DOES NOT VIOLATE THE FREE SPEECH CLAUSE BECAUSE IT IS A REASONABLE REGULATION ON THE PRACTICE OF MEDICINE AND IS PERMISSIBLE UNDER THE PROFESSIONAL SPEECH DOCTRINE. States are vested with the power to protect the health and general welfare of its citizens by reasonable regulation even if a regulation incidentally affects protected speech. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992); see also Kovacs v. Cooper, 336 U.S. 77, 83 (1949) ( The police power of a state extends beyond health, morals and safety, and comprehends the duty... to protect the well-being and tranquility of a community... [a] state or city may prohibit acts or things reasonably thought to bring evil or harm to its people. ). The State s ability to implement reasonable regulations by utilizing its police power 4
often conflicts with the Constitution s recognition of the right to free speech resulting in uncertainty. However, this Court addressed this tension by identifying that there are categorical exemptions to free speech that result in diminished First Amendment protection, implicating different levels of judicial scrutiny depending on the type of regulation and the purposes underlying it. See Stuart v. Camnitz, 774 F.3d 238, 244 (4th Cir. 2014) (construing this Courts decision in Casey, and acknowledging that certain types of speech are subjected to a lower level of analysis, such as commercial speech). Thus, while regulations that are content-discriminatory against speech are presumptively invalid and are subject to the utmost scrutiny, there are categories of falling under government regulation that receive diminished First Amendment protections and are entitled lower level of scrutiny regardless of their content-discrimination. See id. (citing R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382 (1992) and Cent. Hudson Gas & Elec. Corp v. Pub. Serv. Comm n of N.Y., 447 U.S. 557 (1998)). This Court and appellate circuits expressly recognize that regulations of commercial speech and professional conduct are eligible for review under a lesser level of scrutiny, even if the regulation is based on the substance of the message being communicated. Similarly, many circuits have inferred that this Court recognizes professional speech or, speech that occurs between professionals and their clients in the context of their professional relationship, as entitled to a lower level of scrutiny. See NIFLA v. Harris, 839 F.3d 823, 839 (9th Cir. 2016); see also Wollschlaeger v. Governor of Florida, 760 F.3d 1195 (11th Cir. 2014); Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014), cert. denied, 134 S.Ct. 2881 (2014) and cert. denied, 134 S.Ct. 2871 (2014); Moore-King v. County of Chesterfield, Va., 708 F.3d 560 (4th Cir. 2013). Justification for subjecting professional speech to a lower level of scrutiny derives from States interest in regulating professions to protect and provide their citizens, with the confidence they 5
require to put their health or livelihood in the hands of those who utilize knowledge and methods with which the clients ordinarily have little or no familiarity. King v. Governor of the State of N.J., 767 F.3d 216, 232 (3d Cir. 2014). Further, a plurality of the circuits recognized that physician speech particularly in abortion-related disclosure cases is entitled to reduced First Amendment protection because of the need for giving [] truthful, nonmisleading information which is relevant... to the decision. See Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 575 (5th Cir. 2012) (citing Casey, 505 U.S. at 882). Regulating the medical profession and ensuring that citizens have access to relevant knowledge to make an informed decision is part of states significant role... in regulating the medical profession. See Gonzales v. Carhart, 550 U.S. 124, 128 (2007). Particularly, while this Court has yet to state a definitive analytical framework to evaluate abortion-related disclosure cases, circuits apply intermediate scrutiny based on this Courts decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, recognizing that vulnerable woman should be apprised of, and received unbiased information on, all options when faced with an unplanned pregnancy. See Casey, 505 U.S. 833 (1992); see also Nat l Inst. of Family & Life Advocates v. Harris, 839 F.3d 823 (9th Cir. 2016); Stuart, 774 F.3d at 238; Lakey, 667 F.3d at 570; Planned Parenthood Minn., N.D., S.D., v. Rounds, 530 F.3d 724 (8th Cir. 2008). This Court should reverse the Fourteenth Circuit and hold that the Ordinance is not an impermissible burden on free speech and is subject to, and surpasses, the standard for intermediate scrutiny, because this Court has not yet mandated a standard for evaluating abortion-related disclosure cases and it is a permitted regulation on professional speech. Accordingly, the Ordinance does not violate the Free Speech clause because: (1) while it may be content-based, it is viewpoint-neutral; (2) this Court did not announce a level of scrutiny to apply 6
to abortion related-disclosure cases and circuits apply intermediate scrutiny; (3) its viewpoint neutrality makes it eligible for review under the professional speech doctrine a recognized exception among the majority of circuits; and (4) the Ordinance passes intermediate scrutiny. A. The Ordinance Is A Content-Based, Viewpoint-Neutral Regulation Making It Eligible For Review Under Intermediate Scrutiny. The Ordinance does not violate the Free Speech clause because while it is content-based, it is viewpoint-neutral subject to lesser scrutiny analyzed as a reasonable state regulation on abortion-related disclosures, or as a regulation of professional speech. The First Amendment protects the right to freedom of speech, which is infringed upon by either silencing speech or by compelling speech requiring that someone speak against his or her will. See Beth Holtzman, Have Crisis Pregnancy Centers Finally Met Their Match: California s Reproductive Fact Act, 12 NW. J. L. & SOC. POL Y 78, 110 (2017) (discussing Caroline M. Corbin, Compelled Disclosures, 65 ALA. L. REV. 1277, 1282 (2014)). While the First Amendment prohibits the government from compelling speech, the right is not absolute and courts will uphold laws that compel speech, so long as it satisfies the applicable level of scrutiny determined on how the speech is classified. Id., supra, at 110. Thus, even though the Ordinance compels speech, and is thus content-based restriction on speech, its viewpoint-neutrality does not make it presumptively unconstitutional and renders it eligible for review under lesser scrutiny not conflicting with this Court s recent decision in Reed v. Town of Gilbert. 135 S.Ct. 2218 (2015). The first step for determining the applicable level of scrutiny is determining whether the government s regulation is content-based or content-neutral. Id. at 2228. In cases concerning compelled speech, this Court held that [m]andating speech that a speaker would not otherwise make necessarily alters the content of the speech. Riley v. Nat l Fed n of the Blind of N. Carolina, Inc., 487 U.S. 781, 782 (1988). Thus, compelled speech is often considered content- 7
based and subject to strict scrutiny. Additionally, a more abhorrent form of discrimination viewpoint-discrimination warrants higher-level scrutiny, because it often attacks a specific ideology. However, there are recognized exceptions to content-based, compelled-speech regulations that permit the application of a lower level of scrutiny exceptions that are not often afforded to viewpoint-discriminatory regulations. See Holtzman, supra, at 110. Content-Based Discrimination: Content discrimination is a term that encapsulates various types of discrimination, including viewpoint-discrimination. A regulation discriminates based on content when it draws distinctions based on the message a speaker conveys. Reed, 135 S.Ct. at 2227. Further, a regulation of speech is content-based if it, applies to [] particular speech because of the topic discussed or the idea or message expressed. Id. (citing Sorrell v. IMS Health, Inc, 564 U.S. 552 (2011)). Finally, just as a regulation restricting speech can be content-based, a regulation requiring or mandating speech can be content-based. Riley, 487 U.S. at 782 (stating that a provision of a regulation [][was] a content-based regulation because mandating speech that a speaker would not otherwise make necessarily alters the speech s content. ). The Ordinance is likely content-based because it requires that all LSFPCs comply with the Ordinance, specifically to provide its patients with the notice of North Greene s cityfunded family planning services. See Greene Family Planning Centers, 2017 WL 1234567 at 15; see also Harris, 839 F.3d at 835 (stating that an Act requiring dissemination of an almost identical disclosure was facially content-based because it compelled Crisis Pregnancy Centers to disseminate similar notices). However, as indicated in Justice Monroe s dissenting opinion, the Ordinance is not viewpoint-discriminatory, because it does not discriminate based on [a] particular opinion, point of view, or ideology of a certain speaker. See id. at 15; Harris, 839 F.3d at 835. 8
Viewpoint-Discrimination: The Ordinance is not viewpoint-discriminatory because it applies universally, regardless of any potential objections that an LSFPC may have to certain family planning services. Viewpoint-discrimination is a severe form of content discrimination and is defined as, the regulation of speech based on the specific motivating ideology or the opinion or perspective of the speaker. Reed, 135 S.Ct. at 2227 (citing Rosenberger v. Rector and Visitors of Univ. of VA., 515 U.S. 819, 829 (1995) (internal citations omitted)). Further, as stated in Reed, a regulation can be content-based but viewpoint-neutral if it does not discriminate among viewpoints within that subject matter. Id. at 2230. For example,... a law banning the use of sound trucks for political speech and only political speech would be a content-based regulation, even if it imposed no limits on the political viewpoints that could be expressed. Id. Therefore, if the law specified that only certain types of political ideologies were prohibited from using sound trucks, this would be impermissibly viewpoint-discriminatory. See Conant v. Walters, 309 F.3d 629 (9th Cir. 2002) (finding a law viewpoint-discriminatory because [o]nly doctor-patient conversations that include discussions of the medical use of marijuana trigger the policy. Moreover, the policy does not merely prohibit the discussion of marijuana; it condemns expression of a particular viewpoint, i.e., that medical marijuana would likely help a specific patient ). Because the Ordinance does not discriminate based on viewpoints within the subject matter that it is regulating, the Ordinance is at most a content-based, viewpoint-neutral regulation. The Ordinance applies equally to all licensed and unlicensed LSFPCs, regardless of what if any objections they may have to certain family-planning methods. See Harris, 839 F.3d at 835 (upholding a similar notice requirement viewpoint-neutral, even though the majority of pregnancy centers were religiously affiliated and morally opposed to abortive methods). 9
Instead, each LSFPC is subject to the Ordinance s notice requirement, regardless of a center s religious affiliation. See Reed, 135 S.Ct. at 2230 (finding that a town s sign ordinance was content-based, but viewpoint neutral because,... [t]he restrictions for event signs appl[ied] equally no matter who sponsors them. ). For example, the Ordinance does not impose more stringent regulations on religious LSFPCs than on LSFPCs who do not provide abortions for other reasons such as expense, insurance coverage, and lack of resources and instead focuses on the message to be conveyed. See An Overview of Abortion Law, GUTTMACHER INSTITUTE, https://www.guttmacher.org/state-policy/explore/overview-abortion-laws. (last visited Sept. 20, 2017) (summarizing state abortion laws, discussing abortion requirements, and stating the resources needed for for conducting the procedure, for example, 41 states require abortions [] be performed by a licensed physician... and 19 states require the involvement of a second physician after a specified point. ). Therefore, the Ordinance applies equally to all LSFPCs that choose not to provide abortions or comprehensive birth control, either for religious purposes or for some other reason. Because the Ordinance does not differentiate between the different LSFPCs, the Ordinance is at most a content-based, viewpoint-neutral regulation. Unlike the law in Sorrell v. IMS Health, Inc., the Ordinance does not constitute viewpoint-discrimination, because it does not specifically target LSFPCs with certain ideological viewpoints. See 564 U.S. 552 (2011); see also Greene Family Planning Centers, 2017 WL 1234567 at 15 (Monroe, J., dissenting). In Sorrell, this Court reviewed the constitutionality of a Vermont State law that banned the sale, disclosure, and use of information that identified physicians and their prescription habits. The law utilized speaker- and content-based regulations to restrict who could purchase the information and dictating how such information could be used. As a result, the law effectively prohibited only brand-named drug pharmaceutical manufacturers 10
from using the information in the marketing of their drugs even though the law allowed for numerous exceptions. Sorrell, 564 U.S. at 572 ( The explicit structure of the statute allows the information to be studied and used by all but a narrow class of disfavored speakers. ). This Court deemed the law unconstitutional, stating that it was impermissibly viewpointdiscriminatory because it blatantly disfavored marketing speech with a particular content and subjected it to more rigorous judicial scrutiny. See Id. at 563; see also Harris, 839 F.3d at 835-36 (discussing the application of Sorrell to determine the viewpoint-neutrality of a California abortion disclosure law). In coming to this conclusion, this Court looked to the law s legislative findings and determined that the law was created for the express purpose of decreasing marketing efforts by brand-named drug manufacturers, thereby targeting specific speakers. Sorrell, 564 U.S. at 572. Unlike the law in Sorrell, the Ordinance is much more inclusive and does not convey a particular opinion, because it applies to all LSFPCs regardless of whether they are religiously affiliated; they are licensed; or they charge a fee. As discussed above, the law in Sorrell used a series of exceptions making the prescriber-identifying information unavailable to pharmaceutical manufacturers, all while making it available to an almost limitless audience. Id. In contrast, the Ordinance is all-inclusive and does not make exemptions based on the speaker. Additionally, the Ordinance does not convey a particular opinion, because the notice does not suggest a preference regarding family-planning methods, and instead simply states the existence of free or low-cost comprehensive family-planning services. In Sorrell, the law allowed almost everyone to obtain and use provider-identifying information, except for pharmaceutical manufacturers, which was supported by the face of the law and the law s legislative findings. The Ordinance and the legislative findings in this case, however, do not support the contention that it was enacted for 11
the purpose of targeting pro-life centers who may not convey information regarding other family planning options available in North Greene. Greene Family Planning Centers, 2017 WL 1234567 at 9. Instead, the purpose of the Ordinance, and the findings surrounding its enactment, support North Greene s desire to inform all residents about the city s reproductive health programs, and ensure that the information is conveyed correctly and timely. Thus, the Ordinance does not target religious LSFPCs, and instead applies equally, regardless of a center s moral, or ethical opinions, and is therefore viewpoint-neutral. B. As Supported By A Circuit Consensus And This Court s Decision In Casey, Regulations On Abortion-Related Disclosures Are Subject To At Most Intermediate Scrutiny. Strict scrutiny is inappropriate in abortion-related disclosure cases because this Court s decision in Casey did not announce an applicable level of scrutiny, and as such, circuits apply at most intermediate scrutiny. In Reed, this Court did not extinguish the application of lower levels of scrutiny granted to exempted categories of content-based regulations, such as commercial speech. Thus, not all content-based regulations are automatically subject to strict scrutiny. See Harris, 839 F.3d at 837 (citing United States v. Swisher, 811 F.3d 299 (9th Cir. 2016)). Because Casey was silent on the level of scrutiny applicable to abortion-related disclosures, this Court should adopt and apply the professional speech doctrine, and subject the Ordinance to at most intermediate scrutiny because: (1) this Courts decision in Casey did not announce a level of scrutiny applicable to abortion-related disclosure cases, but recognized States rights to regulate physicians speech; and (2) the majority of circuits apply intermediate scrutiny, or a lesser standard, to abortion-related disclosure cases, because they reasonably regulate speech within the context of a profession. 12
This Court s Decision in Casey: In Planned Parenthood of Southeastern Pennsylvania v. Casey, this Court addressed a constitutional challenge to a Pennsylvania abortion statute, which included a provision prescribing a modified form of informed consent. 505 U.S. at 884. The statute required that physicians orally inform women, at least 24-hours in advance of an abortion about the nature, the risks, and the alternatives to the procedure. Id. at 883-84. Additionally, the statute mandated that physicians inform women of state printed materials that described the fetus, and that they provide information about financial and other assistance available by the state. Id. In upholding the provision requiring physicians provide abortion-related information to their patient, this Court stated: All that is left of petitioners argument is an asserted First Amendment right of a physician not to provide information about the risks of abortion, and childbirth, in a manner mandated by the State. To be sure, the physician s First Amendment rights not to speak are implicated... but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State... we see no constitutional infirmity in the requirement that the physician provide the information mandated by the state here. Id. While the referenced passage resulted in differing interpretations among circuits, no circuit has applied strict scrutiny to abortion-related disclosure cases, even if the regulation was contentbased. However, two distinct, yet compatible, standards emerged, one vested in States ability to regulate the practice of medicine and one rooted in the professional speech doctrine. Circuits Apply Intermediate Scrutiny, Or A Lesser Standard, To Abortion-Related Disclosure Cases: Since Casey, no circuit has held that strict scrutiny applies to regulations for abortion-related disclosures. See Harris, 839 F.3d at 823; see also Stuart, 774 F.3d at 238; Lakey, 667 F.3d at 576; Rounds, 530 F.3d at 734-35. Although courts agree that strict scrutiny is inappropriate in abortion-related disclosure cases, they have struggled to determine the appropriate level of scrutiny to apply. See Harris, 839 F.3d at 837. Certain courts analyze, and uphold, reasonable abortion-related disclosures, citing the State s ability to regulate the practice 13
of medicine, while others more broadly apply the professional speech doctrine to uphold similar regulations. While either justification entitles review under a lower level of scrutiny, they are not necessarily mutually exclusive paths, as this Court precedent supports states ability to regulate professional speech within the context of the medical profession. The Fifth and Eighth Circuits review abortion-related disclosures under the guise that such laws are part of State s reasonable regulation of the practice of medicine a view that essentially interprets this Courts decision in Casey as creating a new standard exclusive in application to abortion-related disclosures. In Texas Medical Providers Performing Abortion Services v. Lakey, the Fifth Circuit assessed the constitutionality of an informed consent law and held that the appropriate level of scrutiny for abortion-related disclosures was the antithesis of strict scrutiny. 667 F.3d at 575. In upholding an ultrasound-display-and-describe law, requiring doctors to show pregnant women sonograms of their fetuses and make audible the fetuses heartbeats, it reasoned that such laws are permitted based on the State s, significant role... in regulating the medical profession. Lakey, 667 F.3d at 575-76 (citing Gonzales, 550 U.S. at 157). Thus, this Court reasoned that laws that, require truthful, nonmisleading, and relevant disclosure, do not fail under the rubric of compelling ideological speech that triggers First amendment strict scrutiny. See id.; see also Stuart, 774 F.3d at 248 (citing Rounds, 530 F.3d at 734-35, and stating that the Fifth and Eighth Circuits interpret Casey and Gonzales as allowing states, under the First Amendment, to use its regulatory authority to require a physician to provide truthful, non-misleading information relevant to a patient s decision to have an abortion. ). Like the Fifth Circuit, the Eighth Circuit in Planned Parenthood of Minnesota v. Rounds, analyzed a First Amendment challenge to a South Dakota law requiring physicians to give women a written statement indicating that abortion, will terminate the life of a whole, 14
separate, unique, living human being. Rounds, 530 F.3d at 726. In upholding the disclosure, the court concluded that, while the State cannot compel an individual simply to speak the State s ideological message, it can use its regulatory authority to require a physician to provide truthful, non-misleading information relevant to a patient s decision to have an abortion. Id. at 734-35. Unlike the Fifth and the Eighth Circuits, the Ninth and the Fourth Circuits analyze abortion-related disclosures under the professional speech framework, disagreeing with the view that Casey supplied a new standard to apply to abortion-related disclosure cases. See Harris, 839 F.3d at 838; see also Stuart, 774 F.3d at 249. In Stuart, the Fourth Circuit invalidated provisions of a North Carolina compulsory abortion-related disclosure law, which required physicians to perform an ultrasound, display a sonogram, and describe the fetus in detail to a woman seeking an abortion regardless of if a woman actively seeks to avert her eyes or refuses to listen. See id. at 243; see also Timothy Zick, Professional Rights Speech, 47 ARIZ. ST. L.J. 1289, 1312 (2015). In rejecting the contention that Casey created a new framework for analyzing abortion-related disclosure cases, the court determined that intermediate scrutiny was appropriate, citing professional speech and noting it is consistent with Supreme Court Precedent and appropriately recognizes the intersection... of regulation of speech and regulation of the medical profession in the context of an abortion procedure. Stuart, 744 F.3d at 249. Thus, the court concluded that the provision was unconstitutional because, the statement compelled [was] ideological in that it explicitly promotes a pro-life message by demanding the provision of facts that all fall on one side of the abortion debate and does so shortly before the time of the decision when the intended recipient is most vulnerable. Id. at 246. Similarly, the Ninth Circuit recently upheld a California law that requires pregnancy clinics to give notice to its clients about the existence of state-funded pregnancy assistance, applying intermediate scrutiny. See Harris, 839 F.3d at 823. 15
Specifically, the law imposed mandatory disclosure regulations on all crisis pregnancy centers, requiring them to post notices with information about free or low-cost reproductive services in the State, and state whether the CPC is a licensed medical facility. In determining the constitutionality of the notice, the Ninth Circuit applied its adopted professional speech framework, stating that professional speech, within the professional-client relationship, falls in the middle of a continuum between public dialogue subject to strict scrutiny and professional conduct subject to rational basis review and is thus, subjected it to intermediate scrutiny. See id. at 839; see also Holtzman, supra, at 101. While circuits interpret Casey as proscribing different frameworks for analyzing the constitutionality of regulations on abortion-related disclosures, all recognize that review of such disclosures should be subject to a lower level of scrutiny, regardless of whether it is contentbased. Thus, while the Ordinance is a content-based regulation, it should be subject to at most intermediate scrutiny under the professional speech doctrine because it is consistent with this Courts precedent, and is a reasonable exertion of State power. C. The Ordinance Is A Permissible Regulation Of Professional Speech. To protect citizens from professional overreach, fraud, fostering and facilitating safe professional-client interactions, and ensuring professionals provide accurate and truthful information to their clients, the professional speech doctrine seeks to balance professional s free speech rights with the States power to reasonably regulate professionals. See Erika Schutzman, We Need Professional Help: Advocating for a Consistent Standard of Review When Regulations of Professional Speech Implicate the First Amendment, 56 B.C. L. REV. 2019, 2034 (2015); see also Schmidt, supra, at 1159 (defining professional speech as speech by a professional, in a regulated profession in which the professional is rendering advice or counsel to a client, and 16
such advice is typically provided by medical, psychological, legal, scientific, and financial professionals ). Because the record supports that LSFPCs appear to provide comprehensive family-planning services by their advertising, by the services they provide, and by the formalities they utilize this Court should find that the Ordinance is permissible under the professional speech doctrine. Therefore, this Court should adopt the professional speech doctrine, and find that the Ordinance falls under its confines because: (1) through its precedent, this Court recognized diminished First Amendment protections applicable to professional speech; and (2) the Ordinance reasonably regulates professional speech, regardless of whether LSPFCs charge a fee or are a non-profit, or whether they house licensed medical professionals. The Evolution Of Professional Speech And The Professional Speech Doctrine This Courts Decisions In Thomas, Lowe, And Casey: While this Court yet to issue a clear analytical framework for reviewing regulations of professional speech, it indicated in at least three previous decisions limited First Amendment protections for professionals. Lindsey Schmidt, The Constitutional Right to an Abortion Does Not Encompass the Right to Be Uninformed: The Fourth Circuit's Puzzling Approach to Evaluating Mandatory Ultrasound Provisions in Stuart v. Camnitz, 95 NEB. L. REV. 1124, 1159 (2017) (discussing Thomas v. Collins, 323 U.S. 516 (1945) (Jackson, J., concurring); Lowe v. S.E.C., 472 U.S. 181 (1985) (White, J., concurring) and Casey, 505 U.S. 833, 884 (1992)). This Court s first encounter with the issue of professional speech arose in Thomas v. Collins, a case addressing a State s power to enforce a professional registration requirement against a union organizer. See 323 U.S. at 516; see also Zick, supra, at 1289. While the majority did not address whether the First Amendment placed limits on States ability to use their police power to regulate and license professions, Justice Jackson suggested in his concurrence that States could exercise regulatory power on licensed professions, but that 17
States could not infringe on professionals ability to speak to the public, outside the scope of professional association. Thomas, 323 U.S. at 544-45 ( [S]o the state to an extent [] may regulate one who makes a business or a livelihood of soliciting funds or memberships for unions. But I do not think it can prohibit one, even if he is a salaried labor leader, from making an address to a public meeting of workman... ). Professional speech was next addressed in, Lowe v. SEC, where this Court held that the federal government could permissibly impose a registration requirement on professionals who rendered personalized advice to particular clients regarding securities investment. 472 U.S. at 228. While the majority did not detail the First Amendment repercussions, Justice White s concurring opinion opined that regulations on profession speech are permissible if they occur within the nexus of the professional relationship, Id. One who takes the affairs of a client personally in hand and purports to exercise judgment on behalf of the client in the light of the client s individual needs and circumstances is properly viewed as engaging in the practice of a profession... If the government enacts generally applicable licensing provisions limiting the class of persons who may practice the profession, it cannot be said to have enacted a limitation on freedom of speech or the press subject to First Amendment scrutiny. Finally, this Court directly addressed professional speech in Casey, finding that a physician s right to speak or not could be subject to reasonable regulation by the State. See 505 U.S. at 884; see also Harris, 839 F.3d at 839. Notably, as stated above, in upholding provisions concerning abortion-related disclosure for modified informed consent, the lead opinion indicated that states may subject physicians, when acting in their capacity as professionals, to reasonable licensing and regulation, all while comporting with the First Amendment. See Casey, 505 U.S. at 884. Thus, this Court sustained state regulations compelling physicians to make certain disclosures to women seeking abortions, and indicated that States may compel individuals who 18
would rather remain silent, to speak if, the communication takes place in the context of a professional relationship with a client. See Daniel Halberstam, Commercial Speech, Professional Speech, and the Constitutional Status of Social Institutions, 147 U. PA. L. REV. 771, 773-74 (1999). As a result of these opinions, commentators and circuits concur that this Courts precedent supports the existence of a professional speech doctrine. The Ordinance Permissibly Regulates Professional Speech: The Ordinance implicates the professional speech doctrine because it regulates speech that occurs between professionals and their clients, in the context of their professional relationship regardless of whether they charge a fee, or provide licensed professionals on-site. Therefore, this Court should apply the professional speech doctrine, and thus, intermediate scrutiny, to the Ordinance because: (1) circuits situate regulations of professional speech within the realm of intermediate scrutiny review; (2) LSFPCs hold themselves out in the community as providing medical services; and (3) thus, the Ordinance is provided in the context of a professional relationship. In Pickup v. Brown, the Ninth Circuit assessed the level of scrutiny applied to a California law that banned mental health therapists from conducting any practice that aimed at changing a minor s sexual orientation, and created a framework for assessing professional speech regulations. In analyzing the law, the court determined that the amount of protection warranted to professional speech is best understood along a continuum. The court explained that at one end of the continuum is a professional s right to engage in a public dialogue, [where] first amendment protection is greatest, and can be likened to constitutional protection given to soapbox orators and pamphleteers, thus, regulations of such would be subject to strict scrutiny. Pickup, 740 F.3d at 1227. However, at the other end of the spectrum was professional conduct, where State power is great and review of restraints on professional conduct were deemed to be 19
subject to intermediate scrutiny. Notably, the court placed professional speech at the mid-point of the spectrum, stating the First Amendment tolerates a substantial amount of speech regulation within the professional-client relationship that it would not tolerate outside of it because when professionals, by means of their state-issued licenses form relationships with clients, the purpose of those relationships is to advance the welfare of the clients, rather than to contribute to public debate. Id. at 1228. LSFPCs provide medical services and hold themselves out in the community as providing expansive reproductive health services, and are not merely providing services, akin to community outreach and counseling. Greene Family Planning Centers, 2017 WL 1234567 at 10, footnote 5. Thus, because LSFPCs engage in speech that occurs within the confines of professional practice, as their primary purpose is to provide pregnancy-related services, their speech is eligible for regulation under the State s police power and subject to the professional speech doctrine. The Ordinance regulates LSFPCs speech in the context of medical treatment, counseling, and advertising because they have positioned themselves in the public as providing unbiased, comprehensive pregnancy-related services. For example, the record supports that Greene Family Planning holds itself out as providing unbiased, comprehensive pregnancy related services, as indicated by its professional staff and its facilities. Greene Family Planning holds itself out as providing expansive pregnancy-related services through its staffing of medical professionals, including doctors and nurses, and the types of services they provide, including medical treatment, such as ultrasounds and pregnancy tests. See id.; see also Harris, 839 F.3d at 839-40 (finding that centers providing both medical services, such as ultrasounds, and non-medical services, such as counseling and education, could be subject to the doctrine within the confines 20