Evergreen Assoc., Inc. v. City of New York

The appeal addressed whether New York City can require pregnancy services centers to disclose particular information about the centers and the services they provide. The City’s appeal followed the district court’s decision granting Plaintiffs a preliminary injunction. The district court, in reaching its decision, found that Plaintiffs (a number of pregnancy services centers) were likely to succeed on their First Amendment claims and showed both irreparable harm and that the law was unconstitutionally vague.

The law in question—Local Law 17—imposed certain confidentiality requirements and mandatory disclosures on pregnancy services centers. Pregnancy services center was defined under the law as any facility with a primary purpose of “provid[ing] services to women who are or may be pregnant, that either (1) offers obstetric ultrasounds, obstetric sonograms or prenatal care; or (2) has the appearance of a licensed medical facility.” 740 F.3d 233, 239 (2d Cir. 2014). The law exempts any facility that is licensed to provide medical or pharmaceutical services or that has a licensed medical provider on staff. The law also requires such centers to make three disclosures: (1) whether the center had a licensed medical provider on staff who provides or supervises provision of services (the “Status Disclosure”); (2) that the New York City Department of Health and Mental Hygiene encourages women who are or may be pregnant to consult with a licensed provider (the “Government Message”); and (3) whether the center provides abortion, emergency contraception, or prenatal care, or provides referrals to such services (the “Services Message”).

While the district court found the definition of pregnancy services center impermissibly vague because it included a number of non-exclusive factors to use in determining whether a given center has the appearance of a licensed medical facility, the Second Circuit disagreed. The court concluded that the factors were objective criteria, which was enough to give notice to regulated facilities. The court went on to hold that should it find any of the provisions of the law impermissible, those provisions would be severed and the remainder of the law upheld.

Next, the court examined the three disclosures under both strict and intermediate scrutiny, and because it came to the same results under both, it declined to make a ruling on which one was appropriate. The City’s interest—to inform consumers about the services they will receive in order to prevent delays in access to reproductive services—was compelling, leaving at issue only whether the disclosures were narrowly tailored to those interests. Because the Status Disclosure is the least restrictive means to ensure that a woman is aware of whether a particular center has a licensed medical provider at the time she first interacts with it, the disclosure withstood strict scrutiny.

On the second requirement (Government Message), the court found such a message could easily be accomplished by an advertising campaign, while the disclosures impermissibly forced the centers into advertising on behalf of the City. Its requirement that they “affirmatively espouse” the government’s position on a contested public issue deprived Plaintiffs’ rights to freely communicate on such matters.

The Services Disclosure was similarly oppressive. Unlike the Status Disclosure, which alerts consumers to a small bit of accurate information about the type of services provided, the Services Disclosure mandates the way in which pregnancy services centers address a sensitive political topic, and therefore, infringes the centers’ political speech. When looking at the Services Disclosure under intermediate scrutiny, the court found it a “closer question,” but concluded it was still more extensive than necessary.

Following its analysis, the court affirmed the injunction as to the Government Message and Services Disclosure, but vacated it as to the Status Disclosure and remanded the case for further proceedings.

View Full Decision on Westlaw

740 F.3d 233 (2d Cir. 2014)

You may also like...

Leave a Reply