California Pregnancy Center Challenges San Francisco False Advertising Law in Appeal to U.S. Supreme Court

WASHINGTON — A pro-life pregnancy center in California has submitted a writ of certiorari to the U.S. Supreme Court in asking that it take up a case involving a San Francisco rule aimed at pregnancy centers that bans so-called “false advertising” about their services.

The Pregnancy Information Disclosure and Protection Ordinance was introduced in the city in 2011 “to prohibit limited services pregnancy centers from making false or misleading statements to the public about pregnancy-related services the centers offer or perform.”

Limited service pregnancy centers are those that do not provide or refer for abortions, nor do they offer contraceptives. They do offer, however, free pregnancy testing, ultrasounds, baby clothes, diapers and formula, as well as referrals for help with housing and finances, in addition to counseling at no charge.

The organization Support Circle, then known as First Resort, filed suit against the ordinance the following year out of concern over how the law might be enforced after engaging in communication with city officials. Support Circle has three locations: one in San Francisco, one in Redwood City and one in Oakland.

It noted that there has never been a case where someone has confused the organization with an abortion facility, and opined that the law is one-sided in that it does not hold abortion facilities to the same standard as they often do not provide adoption referrals.

“There has been no testimony, documentation, no affidavits of any woman, any service, someone seeking service who has been misled. There is nothing in the record documenting that. What I fear we are doing today is passing a solution in search of a problem,” Supervisor Sean Elsbernd outlined during a public hearing on the ordinance.

According to reports, Support Circle had utilized Google advertising options so that when keywords such as “San Francisco” and “abortion” were searched, the website for the pro-life pregnancy center chain would be among the websites that appeared. The organization does offer counseling for those considering an abortion, as well as post-abortion counseling.

San Francisco, however, considers this—and other text on the chain’s website—to be false advertising, according to a letter submitted to Support Circle in 2011 by City Attorney Dennis Herrera.

“While [Support Circle] is certainly entitled to offer pro-life counseling to women who desire such services, it may not lawfully attract its customers by advertising in a misleading fashion,” he wrote. “This is particularly true where the delays caused by such misleading advertising interfere with a woman’s time-sensitive and constitutionally protected right to terminate her pregnancy.”

However, Becket, the religious liberties organization representing Support Circle, believes that there is nothing improper about Support Circle’s search engine advertising as they are simply “using the same online marketing tools every non-profit and business uses—and just like it, attempts to reach women looking for other information about their pregnancy options as well.”

“Women facing an unplanned pregnancy have a right to know all their options. Yet San Francisco’s law is an attempt to make sure that when women look for information about abortion on the Internet, they only hear one side of the story—the abortion providers’ side,” the religious liberties organization states on its website.

Support Circle filed suit in 2012, but both a district court and appeals court ruled that the law was constitutional.

“The ordinance merely seeks to prevent LSPCs [limited services pregnancy centers] from harming women through false or misleading speech about their services and in no way restricts those entities from expressing their views about abortion to the public or their clients,” Senior U.S. Circuit Judge Dorothy Nelson wrote on behalf of a three-judge panel of the Ninth Circuit Court of Appeals last June.

On Feb. 2, Becket filed an appeal with the U.S. Supreme Court, which is currently considering a similar California case involving a law requiring pro-life pregnancy centers to post a notice that includes information about government abortion programs.

“Left uncorrected, the Eighth and Ninth Circuits’ viewpoint-neutrality tests will enable governments within those jurisdictions to freely target the speech of those with disfavored views, provided they are careful enough to do
so in facially viewpoint-neutral terms,” the petition reads. “Certiorari is warranted to ensure that the First Amendment’s prohibition on viewpoint discrimination remains a powerful bulwark against government interference in vital societal debates like the one that has long surrounded abortion.”

Read the petition in full here.

As previously reported, the Fourth Circuit Court of Appeals ruled in favor of a Maryland pregnancy center last month, striking down a Baltimore ordinance that required pro-life pregnancy centers to post a notice advising that the facility does not offer or refer clients for abortions or contraception.

“After seven years of litigation and a 1,295-page record before us, the City does not identify a single example of a woman who entered the Greater Baltimore Center’s waiting room under the misimpression that she could obtain an abortion there,” Judge Harvie Wilkinson III, appointed to the bench by then-President Ronald Reagan, wrote on behalf of the three-judge panel.

“What the record does show is affirmative advocacy of abortion alternatives by a lawful non-profit group. None of the public advocacy of alternatives, however, suggests that the Center would provide help or assistance in obtaining an abortion,” he said. “Truthful affirmative assertions are not, without more, misleading.”