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Council OKs controversial new pregnancy center sign ordinance

Friday, January 27, 2012 by Josh Rosenblatt

In only a matter of minutes yesterday City Council repealed one controversial law regulating crisis pregnancy centers and approved another, setting up what promises to be an extended legal and public relations battle for the city. The new law, co-sponsored by Council Members Bill Spelman and Mike Martinez, was written in response to concerns the city’s Law Department had concerning the constitutionality of the original.

The original CPC ordinance, which won unanimous Council approval in April 2010, required that certain facilities post a sign stating that they don’t offer abortion or contraceptive services. The four facilities affected by that ordinance filed suit against the city last October, claiming the law violated their first amendment rights. Recently, city attorneys advised Council that, based on precedence established in courts concerning similar laws passed in other states, the ordinance would probably be struck down as unconstitutional.

The Law Department placed the item on yesterday’s agenda repealing the original ordinance. In response Spelman and Martinez introduced a revised ordinance to take the old one’s place. The new law makes no mention of the words” abortion” or “birth control” but does require all unlicensed pregnancy service centers to post a notice stating that they do not provide medical services under the supervision of a licensed health care provider.

At yesterday’s meeting, it was clear that the groups opposing the old law saw nothing better about the new one and that they would be merely amending their lawsuit against the city.

Erin Leu, an attorney with the Liberty Institute, which filed the lawsuit on behalf of the Roman Catholic Diocese of Austin and three of the pregnancy centers, said the proposed new ordinance “fails to cure the constitutional defects of the current ordinance. It is a blatant violation of the First Amendment.” She also pointed out that, because the lawsuit is a civil rights action, if Austin loses the case it would be required to pay the centers’ attorney’s fees and court costs.

Steven Casey, an attorney with the Texas Center for the Defense of Life, called the Council’s decisions part of an “ideological battle” over abortion. “You have made a decision and wasted taxpayer dollars for the personal anti-charity, pro-abortion agenda waged against a volunteer center working to help women and babies in unexpected pregnancies,” Casey said.

But supporters of the new ordinance said their concerns were not based on ideology but rather on concern for women’s health and safety and a belief in the need for truth in advertising, especially as it relates to the treatment of women in vulnerable situations.

“Having a sign posted that states whether the center provides licensed medical care is an important measure to ensure that women know whether they’re at a medical clinic or a faith-based counseling center,” said Sarah Wheat of Planned Parenthood.

“The message the ordinance sends is that organizations must be truthful and transparent about services they offer,” said Blake Rocap, legislative counsel for NARAL Pro-Choice Texas. “Regardless of your position on abortion we should all agree that the ordinance reinforces that core common sense value, having people not be misled.”

The measure’s main sponsor, Spelman, called the issue a “consumer choice issue, a consumer protection issue. It is not at all unreasonable to require unlicensed pregnancy service centers to put a sign up stating what it is they do and don’t do inside the center.”

However, Bart Waxman, a lawyer with the Jubilee Campaign’s Law of Life Project, which is representing local crisis pregnancy center Austin LifeCare, said the issue is not a matter of consumer protection because of the distinction between government interest in charitable and commercial transactions. He said the decisions from courts taking up similar cases in Maryland and New York are proof that since the laws are attempting to regulate the speech of charitable, not-for-profit organizations, they are unconstitutional burdens.

“When you compel speech, the government has to show interest before they can force someone to say a message, even if that message is true,” said Waxman. “But when you are doing charity work, it’s not a commercial transaction, there’s a much higher standard before you can start compelling speech. Just because something feels important to you doesn’t mean you can call it a compelling interest. Three different judges have said the commercial speech standard does not apply here.”

But Martinez said that, ideological and legal concerns aside, the issues comes down to a “basic, basic premise of women’s rights, women’s health care rights, information rights. That’s all it is. I know it will go to court; I know it will be debated much more in the future, but when I look at all the factors, this is what’s best for Austin.”

Lawyers from both sides have a status conference with U.S. District Judge Lee Yeakel on Feb. 3. By that point, said Waxman, he and his legal team will have filed an amended complaint and an amended motion for preliminary injunction.

Council approved the ordinance unanimously, 6-0, with Mayor Lee Leffingwell not in attendance.

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