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Evergreen Ass'n, Inc. v. City of New York

United States Court of Appeals, Second Circuit

January 17, 2014

The EVERGREEN ASSOCIATION, INC., DBA Expectant Mother Care Pregnancy Centers EMC Frontline Pregnancy Center, Life Center of New York, Inc., DBA AAA Pregnancy Problems Center, Pregnancy Care Center of New York, Inc orporated as Crisis Pregnancy Center of New York, a New York Not-for-Profit Corporation, Boro Pregnancy Counseling Center, a New York Not-for-Profit Corporation, Good Counsel, Inc., a New Jersey Not-for-Profit Corporation, Plaintiffs-Appellees,
v.
CITY OF NEW YORK, a municipal corporation, Michael Bloomberg, Mayor of New York City, in his official capacity, Jonathan Mintz, the Commissioner of the New York City Department of Consumer Affairs, in his official capacity, Defendants-Appellants.

Argued: Sept. 14, 2012.

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Mordecai Newman, Assistant Corporation Counsel (Michael A. Cardozo, Corporation Counsel, Larry A. Sonnenshein, Nicholas Ciappetta, Robin Binder, of Counsel, on the brief), City of New York, New York, NY, for Defendants-Appellants.

James Matthew Henderson, American Center for Law & Justice, Washington, DC (Cecilia, N. Heil, Erik M. Zimmerman, Carly F. Gammil, on the brief), for Plaintiffs-Appellees the Evergreen Association Inc. and Life Center of New York, Inc.

Matthew Bowman, Alliance Defense Fund, Washington, DC (M. Todd Parker, Moskowitz & Book, New York, NY, on the brief), for Plaintiffs-Appellees Pregnancy Care Center of New York, Boro Pregnancy Counseling Center, and Good Counsel, Inc.

Kimberly A. Parker, Zaid A. Zaid, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, for amici curiae Planned Parenthood of New York City, NARAL Pro-Choice New York, NARAL Pro-Choice America, Community Healthcare Network, Law Students for Reproductive Justice, New York Abortion Access Fund, New York City Chapter of the National Organization for Women, New York County Chapter of the New York State Academy of Family Physicians, New York State Association of Licensed Midwives, National Abortion Federation, National Advocates for Pregnant Women, National Latina Institute for Reproductive Health, Physicians for Reproductive Choice and Health, Public Health Association of New York, Religious Coalition for Reproductive Choice, Reproductive Health Access Project, Sistersong Women of Color Reproductive Justice Collective, the Honorable (Congresswoman) Carolyn Maloney,

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in support of Defendants-Appellants.

Brian J. Kreiswirth, Chair, Committee on Civil Rights, The Association of the Bar of the City of New York, New York, NY, for amicus curiae The Association of the Bar of the City of New York, in support of Defendants-Appellants.

Priscilla J. Smith, Jennifer Keighley, The Information Society Project at Yale Law School, Brooklyn, NY, amicus curiae, in support of Defendants-Appellants.

Melissa Goodman, Alexis Karteron, Arthur N. Eisenberg, New York Civil Liberties Union, New York, NY, amicus curiae, in support of Defendants-Appellants.

Dennis J. Herrera, City Attorney, Danny Chou, Chief of Complex & Special Litigation, Erin Bernstein, Deputy City Attorney, San Francisco, CA, for amici curiae City and County of San Francisco, in support of Defendants-Appellants.

Deborah J. Dewart, Justice and Freedom Fund, Swansboro, NC, amicus curiae, in support of Plaintiffs-Appellees.

Mailee R. Smith, Americans United for Life, Washington, DC, for amici curiae Pregnancy Care Organizations Care Net, Heartbeat International, Inc., and National Institute of Family and Life Advocates, in support of Plaintiffs-Appellees.

Noel J. Francisco, Jones Day, Washington, DC, for amicus curiae Law Professors In Support of Appellees, in support of Plaintiffs-Appellees.

Samuel B. Casey, David B. Waxman, Jubilee Campaign-Law of Life Project, Washington, DC, for amici curiae, American Association of Pro-Life Obstetricians and Gynecologists, The Catholic Medical Association, and The Christian Medical and Dental Associations, in support of Plaintiffs-Appellees.

John P. Margand, Scarsdale NY, for amicus curiae Dr. Michael J. New, in support of Plaintiffs-Appellees.

Before: POOLER, WESLEY, and LOHIER, Circuit Judges.

POOLER, Circuit Judge:

Defendants-Appellants (collectively, " the City" ) appeal from the July 13, 2011 memorandum and order of the United States District Court for the Southern District of New York (William H. Pauley III, J. ) granting Plaintiffs-Appellees' (" Plaintiffs' " ) motion for a preliminary injunction enjoining Local Law No. 17 of the City of New York (" Local Law 17" ). Local Law 17, inter alia, requires pregnancy services centers, a term defined in the statute, to make certain disclosures regarding the services that the centers provide. See Evergreen Ass'n, Inc. v. City of New York, 801 F.Supp.2d 197, 200-01 (S.D.N.Y.2011). The district court found that Plaintiffs, providers of various pregnancy-related services, demonstrated, with respect to their First Amendment claims, both (1) a likelihood of success on the merits and (2) irreparable harm. See id. at 202-09; see also Alliance for Open Soc'y Int'l, Inc. v. U.S. Agency for Int'l Dev., 651 F.3d 218, 230 (2d Cir.2011) (discussing standard for preliminary injunction), aff'd __ U.S. __, 133 S.Ct. 2321, 186 L.Ed.2d 398 (2013). The district court also concluded that Local Law 17 is unconstitutionally vague. It therefore enjoined the statute in its entirety. On appeal, we conclude that the law is not impermissibly vague. We also conclude that Plaintiffs failed to demonstrate a likelihood of success on the merits with respect to one of the challenged disclosures, which requires pregnancy services centers to disclose if they have a licensed medical provider on staff, but that Plaintiffs have demonstrated a likelihood of success on the merits with

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respect to other provisions challenged by Plaintiffs that require other forms of disclosure and impermissibly compel speech. Because the provisions are severable, we sever the enjoined provisions from the rest of Local Law 17. Accordingly, the memorandum and order of the district court is AFFIRMED in part and VACATED in part, and this case is REMANDED for further proceedings.

BACKGROUND

This case asks us to decide whether the New York City Council and Mayor of New York City can impose requirements on pregnancy services centers aimed at informing potential clients about the centers and the services that they provide, or do not provide, without running afoul of the First Amendment. [1]

I. Local Law 17

In March 2011, the New York City Council passed and Mayor Michael Bloomberg signed into law Local Law 17, which was scheduled to go into effect on July 14, 2011, and intended to be codified in the New York City Administrative Code (" Administrative Code" ).[2] The law imposes on pregnancy services centers certain confidentiality requirements and mandatory disclosures. Only the disclosures are at issue in this case. Under the law, pregnancy services centers must disclose

(1) whether or not they " have a licensed medical provider on staff who provides or directly supervises the provision of all of the services at such pregnancy service center" (the " Status Disclosure" );
(2) " that the New York City Department of Health and Mental Hygiene encourages women who are or who may be pregnant to consult with a licensed provider" (the " Government Message" ); and
(3) whether or not they " provide or provide referrals for abortion," " emergency contraception," or " prenatal care" (the " Services Disclosure" ).
Administrative Code § 20-816(a)-(e). They must provide the required disclosures at their entrances and waiting rooms, on advertisements, and during telephone conversations.[3] Id. § 20-816(f). The law imposes civil fines on facilities that violate its provisions, and it gives the

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Commissioner of Consumer Affairs the authority to enforce the disclosure requirements by sealing for up to five days any facility that has three or more violations within two years. Id. § 20-818(a)-(b).

Local Law 17 defines a " pregnancy services center" as a " facility, ... the primary purpose of which is to provide 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." Id. § 20-815(g). The law provides a nonexclusive list of factors for consideration in determining whether a facility " has the appearance of licensed medical facility." [4] Id. It is " prima facie evidence that a facility has the appearance of a licensed medical facility if it has two or more of the factors." Id. Finally, the law exempts from its provisions facilities that are " licensed ... to provide medical or pharmaceutical services" or have a licensed medical provider on staff. Id.

II. New York City Council Proceedings

On October 13, 2010 New York City Council Member Jessica S. Lappin introduced the bill that would become Local Law 17, Council Int. No. 371-2010 (" Int. No. 371" ), in order to regulate the practices of " crisis pregnancy centers" (" CPCs" ), organizations that provide non-medical pregnancy services and are opposed to abortion. The Council's Committee on Women's Issues held a hearing on the bill on November 16, 2010. At the beginning of the hearing, Council Member Julissa Ferreras, as chair of the Committee, testified that the proposed disclosures were required because " [i]f such disclosures are not made, women seeking reproductive health care may be confused and/or misle[ ]d by unclear advertising or may unnecessarily delay prenatal care or abortion." Council Member Lappin stated that Int. No. 371 was " about truth in advertising and women's health." The Committee then considered testimony and written submissions both in favor of and against the bill.

The Committee considered a wide array of testimony in favor of Int. No. 371's proposed disclosure requirements. Several people testified as to misleading practices by CPCs. Joan Malin, President and CEO of Planned Parenthood, testified that CPCs are often intentionally located in proximity to Planned Parenthood facilities and that they often use misleading names and signage. Mariana Banzil, the Executive Director at Dr. Emily Women's Health Center, testified about a particular CPC that would park a bus in front of her clinic, from which the CPC's counselors, often wearing scrubs, would offer ultrasounds, harass Center patients, tell patients that the Center was closed, or identify themselves as Center workers.

Dr. Susan Blank, an Assistant Commissioner at the New York City Department of Health and Mental Hygiene, testified that delay in prenatal care decreases " the likelihood of a healthy pregnancy, delivery, healthy newborn and mother. That's why starting prenatal care in the first trimester

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is standard care in obstetric practice." She also noted the dangers of delays in access to abortion services ...


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