In March of 2011, Mayor Bloomberg of New York City signed a bill into law – Local Law 17, which required pregnancy centers to make several disclosures to their clients. These three disclosures are 1) a “Status Disclosure” – disclosing if a licensed medical provider is on staff, 2) a “Government Message” – telling clients that the New York City Department of Health and Mental Hygiene encourages pregnant women to talk with a licensed provider, and 3) a “Service Disclosure” – informing the clients if they provide abortion, referrals for abortion, emergency contraception, or prenatal care. Penalties for failure to make these disclosures included civil fines and a potential for a temporary shut down of the pregnancy center.
Several pregnancy centers brought a lawsuit challenging the law on First Amendment grounds. The District Court found that all three disclosure requirements ran afoul of the First Amendment and granted a preliminary injunction for the Plaintiff and also enjoined the entire law. New York City and the other defendants appealed the decision to the Second Circuit Court of Appeals.
Two of the three judges ruled that only the “Status Disclosure” was acceptable under the First Amendment, but they found that the “Government Message” and “Service Disclosure” ran afoul of the protection afforded by the First Amendment. The case will now return back to the District Court.
Justice Wesley, while agreeing that the “Government Message” and “Service Disclosure” violated the First Amendment, believed the “Status Disclosure” should be struck down as well. According to his written opinion:
Local Law 17 is a bureaucrat’s dream. It contains a deliberately ambiguous set of standards guiding its application, thereby providing a blank check to New York City officials to harass or threaten legitimate activity.
He went on to explain:
No one disputes that Local Law 17 burdens First Amendment expression, and in my view the law utterly fails to provide adequate guidance for its enforcement. The law gives the Commissioner unbridled discretion to determine that a facility has the “appearance of a licensed medical facility.” This is an inherently slippery definition – all the more because, as the district court recognized, the law carries the “fundamental flaw” of enumerating factors that are only “among” those to be considered, meaning that the City can find a facility covered absent any or all of the listed qualities.