Diocese Trial Brief

Case 1:11-cv-00875-LY Document 88
Filed 03/29/12 Page 1 of 51
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION AUSTIN LIFECARE, INC., ROMAN CATHOLIC DIOCESE OF AUSTIN, CATHOLIC CHARITIES OF CENTRAL TEXAS, AUSTIN PREGNANCY RESOURCE CENTER, AND SOUTH AUSTIN PREGNANCY RESOURCE CENTER, Plaintiffs, v. CITY OF AUSTIN, Defendant. !
CIVIL ACTION NO. A-11-CA-00875-LY
PLAINTIFFS ROMAN CATHOLIC DIOCESE OF AUSTIN, CATHOLIC CHARITIES OF CENTRAL TEXAS, AUSTIN PREGNANCY RESOURCE CENTER, AND SOUTH AUSTIN PREGNANCY RESOURCE CENTERS OPENING TRIAL BRIEF
TABLE OF CONTENTS I. STATEMENT OF FACTS ....................................................................................................... 5! A.! The Centers: Gabriel Project Life Center, Austin Pregnancy Resource Center, and South Austin Pregnancy Resource Center ................................................................... 5! B.! Chapter 10-9 of the Austin City Code: The 2010 Ordinance ............................................. 8! C.! Repeal of the 2010 Ordinance ........................................................................................... 11! D.! Chapter 10-10 of the Austin City Code: the 2012 Ordinance ........................................... 12! II. ARGUMENT.......................................................................................................................... 17! A.! The 2012 Ordinance forces the Centers to engage in compelled speech and compelled misleading speech ........................................................................................... 17! B.! The 2012 Ordinance discriminates based on content and viewpoint ................................ 20! C.! The Centers are engaging in religious and charitable speech, not commercial speech................................................................................................................................ 24! D.! The Centers are not engaging in Professional Speech ...................................................... 26! E.! The 2012 Ordinance is unconstitutionally vague and substantially overbroad ................ 30! 1.! The Ordinance is substantially overbroad................................................................... 30! 2.! The Ordinance is unconstitutionally vague................................................................. 33! F.! The 2012 Ordinance violates the Fourteenth Amendments Equal Protection Clause................................................................................................................................ 34! G.! The 2012 Ordinance violates Plaintiffs right to the free exercise of religion .................. 36! H.! The 2012 Ordinance fails strict scrutiny ........................................................................... 40! 1.! Defendant can point to no compelling governmental interest .................................... 40! 2.! The Ordinance cannot be justified based on post-hoc evidence because it is content-discriminatory on its face ........................................................................... 41! 3.! The Ordinance is not the least restrictive means of furthering any interest................ 43! I.! The Ordinance cannot survive lower forms of judicial scrutiny, including rational basis review ......................................................................................................... 45! J.! The 2012 Ordinance violates of the right to free speech under article 1, section 8, and the right to freedom of religion under article I, section 6 of the Texas Constitution ....................................................................................................................... 46! K.! The 20121 Ordinance violates Texas Religious Freedom Restoration Act ...................... 48! III. CONCLUSION ..................................................................................................................... 49!
Plaintiffs Roman Catholic Diocese, et al. Opening Trial Brief
TABLE OF AUTHORITIES
A.A. v. Needville Indep. Sch. Dist., 611 F.3d 248 (5th Cir. 2010)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#$! Amidon v. Student Ass'n, 508 F.3d 94 (2d Cir. 2007)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!%%! Barr v. City of Sinton, 295 S.W.3d 287 (Tex. 2009)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#$! Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!&#! Broadrick v. Okla., 413 U.S. 601 (1973)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!%&! Burson v. Freeman, 504 U.S. 191 (1992)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!%'! Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557 (1980)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!&'! Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!%()!#*! " City of Boerne v. Florez, 521 U.S. 507 (1997)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#+! Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#&! Davenport v. Garcia, 834 S.W.2d 4 (Tex. 1992)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#,)!#()!#$! Department of Agriculture v. Moreno, 413 U.S. 528 (1973)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#,! " Evergreen Association v. City of New York, 801 F. Supp. 2d 197 (S.D.N.Y. July 13, 2011)!""!')!&+)!&#)!&,)!&()!&-)!%%)! #+)!#%! Ex parte Tucci, 859 S.W.2d 1 (Tex. 1993)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#(! Frisby v. Schultz, 487 U.S. 474 (1988)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#%! Grayned v. City of Rockford, 408 U.S. 104 (1972)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!%*! Hill v. Colorado, 530 U.S. 703 (2000)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!%%! Houston v. Hill, 482 U.S. 451 (1987)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!%&! Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995)!"""""""""""""""""""""""""""""""""""""""!*()!*$! Lowe v. SEC, 472 U.S. 181 (1985)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!&()!&-)!%+! Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!%#! Merced v. Kasson, 577 F.3d 578 (5th Cir. 2009)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#$! Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!*$! NAACP v. Button, 371 U.S. 415 (1963)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!%%! " O'Brien v. Mayor and City Council of Baltimore, 768 F. Supp. 2d 804 (D. Md. 2011)!"""""!')!&+)!&&)!&%)!&,)!%&)!%()!#+)! #*)!##! OQuinn v. State Bar of Texas, 763 S.W.2d 397 (Tex. 1988)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#(! Pacific Gas & Electric Co. v. Public Utilities Comm'n of Cal., 475 U.S. 1 (1986)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""!*()!#(! " Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!&*! " Plyler v. Doe, 457 U.S. 202 (1982)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!%#)!%'! Police Dept. v. Mosley, 408 U.S. 92 (1972)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!&+)!%'! R.A.V. v. St. Paul, 505 U.S. 377 (1992)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!&+)!&%! Railroad Retirement Bd. v. Fritz, 449 U.S. 166 (1980)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#'! Riley v. Nat'l Fed'n of Blind, 487 U.S. 781 (1988)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!*$)!&,)!#(! Romer v. Evans, 517 U.S. 620 (1996)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#')!#,! Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!&+)!&*! Simon & Schuster, Inc. v. Members of the New York State Crime Victims Bd., 502 U.S. 105 (1991)!"""""""""""""""""""""""""""""!&+! Smith v. Goguen, 415 U.S. 566 (1974)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!%%! Tepeyac v. Montgomery County, 779 F. Supp. 2d 456 (D. Md. 2011)!"""""""""""""""!')!&+)!&%)!&,)!&()!&$)!%+)!%')!#+)!#&)!#%! Thomas v. Collins, 323 U.S. 516 (1945)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!&$! Tilton v. Marshall, 925 S.W.2d 672 (Tex. 1996)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#$! Turner Broad. Sys. v. FCC, 512 U.S. 622 (1994)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!*-)!&+)!#+! United States v. Grace, 461 U.S. 171 (1983)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#&! United States v. Harriss, 347 U.S. 612 (1954)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!%%! United States v. Playboy Entm't Group, 529 U.S. 803 (2000)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!&%)!#+)!#%! United States v. Virginia, 518 U.S. 515 (1996)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#&! " W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!*$)!%'! Williams v. Rhodes, 393 U.S. 23 (1968)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!%')!#&! Wooley v. Maynard, 430 U.S. 705 (1977)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!*()!*$)!#*! !
On April 8, 2010, the Austin City Council unanimously passed an ordinance enacting Chapter 10-9 of the Austin City Code (the 2010 Ordinance). The 2010 Ordinance targeted pregnancy resource centers (PRCs) that have moral and religious viewpoints against abortion and certain forms of birth control. The 2010 Ordinance unlawfully compelled PRCs to communicate a false and/or misleading message about services they do not provide. Plaintiffs are charitable and religious organizations that provide free services and support to pregnant women and families in need. On January 26, 2012, the City of Austin, recognizing that the 2010 Ordinance suffered from Constitutional infirmities, repealed it and passed a new ordinance that adopts Chapter 10-10 of the Austin City Code (the 2012 Ordinance or Ordinance). The 2012 Ordinance, like its predecessor, forces charitable pregnancy centers, under the threat of criminal penalties, to post misleading, government-dictated messages concerning their licensing and services. The Ordinance also targets and discriminates against PRCs based on the content and viewpoint of their message. The City of Austin is unlawfully attempting to suppress one side of a contentious social, ethical, and public debate by subjecting those who speak on a disfavored topic to government regulations and criminal penalties. The City of Austin passed the ordinances without any evidence that the Centers have misled or misinformed clients about their services or whether they are medical facilities, or engaged in deceptive practices of any kind. The 2012 Ordinance violates Plaintiffs rights under federal and state law, including the First Amendment rights to free speech and the free exercise of religion; the Fourteenth Amendment right to equal protection; the right to free speech under article I, 8, of the Texas Constitution; the right to the free exercise of religion under article I, 6, of the Texas
Constitution; and the right to religious freedom under the Texas Religious Freedom Restoration Act, Tex. Civ. Prac. & Rem. Code 110.001 et seq. Three other federal district courts across the country have struck down similar ordinances that regulate PRCs by forcing them to engage in compelled speech. In Evergreen Association v. City of New York, the U.S. District Court for the Southern District of New York preliminarily enjoined a local law that contained similar disclosures to the Ordinance at issue in this case. The local law required a pregnancy center to make certain disclosures at its entrance, waiting areas, advertisements, and oral communications, including whether it has a licensed medical provider on staff who provides or directly supervises all of the services at the facility. The court held the law unlawfully compelled speech and was both content- and viewpoint-based. 801 F. Supp. 2d 197 (S.D.N.Y. July 13, 2011). The U.S. District Court for the District of Maryland held in OBrien v. Mayor and City Council of Baltimore that a Baltimore city ordinance requiring a pregnancy center to post a sign in its waiting room notifying clients about services that it does not provide violates the First Amendment, and permanently enjoined its enforcement. 768 F. Supp. 2d 804, 808, 818 (D. Md. 2011). In Tepeyac v. Montgomery County, the Maryland district court granted a preliminary injunction, an extraordinary remedy, against part of a Montgomery County ordinance requiring a pregnancy center to post a sign in its waiting room encouraging women who are or may be pregnant to consult with a licensed health care provider. The court held this ordinance unlawfully compelled speech and enjoined its enforcement. 779 F. Supp. 2d 456, 459, 489, 472 (D. Md. 2011). I. STATEMENT OF FACTS A. The Centers: Gabriel Project Life Center, Austin Pregnancy Resource Center, and South Austin Pregnancy Resource Center The Gabriel Project Life Center (GPLC), Austin Pregnancy Resource Center
(APRC), and South Austin Pregnancy Resource Center (APRC) (collectively, the Centers) are charitable and religious ministries that provide information and services related to pregnancy and parenting, all free of charge (Stip. Tabs I-K; P-15 at 2-3, 26, 28-29, 60, 62-63). GPLC a ministry in Catholic Charities of Central Texas, which is the social service arm of the Roman Catholic Diocese of Austin; the GPLC has been in operation since 2002 and is supported by local Catholic churches and individuals (Stip. 33). The GPLCs mission is to provide compassionate, practical, life-affirming alternatives to abortion (P-48 at 4) by providing free pregnancy tests, mentoring and emotional support, material support (baby items, maternity clothes, baby clothes, etc.), educational classes, and referrals (Stip. Tab I; P-15 at 18). The GPLC will make referrals for sonograms, medical assistance (including prenatal care), professional counseling, and to other community agencies (Stip. Tab I; P-15 at 4-5, 25). Following the teachings of the Catholic Church, the GPLC holds a religious belief against abortion and artificial birth control (Catechism of the Catholic Church, 2270-71, 2370) and will not provide or refer out for these services; it will, however, provide birth control services in the form of abstinence1 and natural family planning (Stip. 22, 34-35), and will provide information about abortion from A Womans Right to Know a brochure published by the Texas Department of State Health Services (P-72). APRC and SAPRC are separate non-profit, religious ministries2 that have been in operations since 2005 and 2009, respectively (Stip. 36). Both state that they are an outreach ministry of Jesus Christ through His church and are financially supported by private individuals and churches (Stip. Tab M; P-1 1). APRC and SAPRC provide free pregnancy tests, educational
In the Food and Drug Administrations (FDA) Birth Control Guide, it recommends abstinence as the best way to avoid pregnancy and sexually transmitted infections (STIs). (P-145). 2 Although organized as separate 501(c)(3)s with separate boards and directors, APRC provided SAPRC with information and support when it was being organized, explaining their similar practices and documents. (Cottone Dep. 7:2-23.)
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classes, mentoring and individual support, limited sonograms, maternity clothes, and baby items (Stip. 37; P-15 at 41, 72). Based on their religious beliefs, they will not provide or refer for abortion (Stip. 22; P-1 at 7), but will provide information on abortion from A Womans Right to Know, published by the Texas Department of State Health Services (P-72). APRC and SAPRC do not provide artificial birth control, but will refer married clients to family physicians for birth control, with the exception of emergency contraception, which they believe can act as an abortifacient (Stip. 29; P-1 10). Additionally, both centers will provide information on abstinence, the best way to avoid pregnancy and sexually transmitted infections. FDA Birth Control Guide (P-145). APRC and SAPRC will provide clients with referrals for medical care (including prenatal care), professional counseling, STD testing, and other services (Stip. Tabs J, K; P-1 at 26, 29, 62-63). The Centers ministries are solely motivated by charitable and religious concerns (Stip. Tabs I-K; P-1 at 2, 26, 60), and their service to women is a matter of religious exercise.3 The Mission of Catholic Charities, of which GPLC is a part, is people of faith serving anyone in need (P-48 at 4), and APRC and SAPRCs Statement of Principles states that they are committed to presenting the gospel of our Lord to women with crisis pregnanciesboth in word and deed. (Stip. Tab M, P-1 1) (emphasis added). APRC and SAPRC only receive funding from private sources, namely individuals and churches. The GPLC receives funding from Catholic churches, individuals, and the Texas Pregnancy Care Network (TPCN), which is a non-profit, charitable organization that is committed to assisting organizations that help women in crisis pregnancies via free and compassionate, practical and life-affirming services. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
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(Stip. 40). The Texas Health and Human Services Commission provides funds to the TPCN as
GPLC, APRC and SAPRC state that all activities of [each respective pregnancy center], including non-religious discussions and activities, are motivated by religious beliefs and are part of [each centers] religious exercise. (GPLC, APRC, and SAPRC Response to Def.s Req. for Admis. 28).
part of the Texas Alternative to Abortion Services Program. (Stip. 40). B. Chapter 10-9 of the Austin City Code: The 2010 Ordinance On April 8, 2010, the Austin City Council unanimously passed Ordinance No. 20100408027, (the 2010 Ordinance), requiring a limited service pregnancy center to prominently display a sign on its front entrance setting forth the products and services it does not provide, namely abortion and birth control services (Stip. Tab A; P-2 at 10-9-2(A)). The ordinance required the sign to state: This center does not provide abortions or refer to abortion providers. This center does not provide or refer to providers of U.S. Food and Drug Administration approved birth control drugs and medical devices. (Stip. Tab A; P-2 at 10-9-2(A)). The Ordinance only applied to organizations that provide information on pregnancy from the socalled pro-life perspective, specifically those who do not provide or refer for abortion and comprehensive birth control, which includes emergency contraception.4 (Stip. Tab A; P-2 at 10-9-1(C)). Failure to comply with the ordinance was a criminal violation. (Stip. Tab A; P-2 at 10-9-3). The City clearly and publicly stated its purpose for passing the 2010 Ordinance. In a press release dated April 2, 2010, the it stated that the 2010 Ordinance is a consumer awareness measurethat helps women make safe, healthy, informed, and responsible decisions. (Stip. Tab Q; P-6). The press release went on to state that the ordinance would ensure that women are informed about the range of services offered by an Austin limited service pregnancy center. Id. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
The 2010 Ordinance defined a limited service pregnancy center as an organization or facility that provides pregnancy counseling or information as its primary purpose, either for a fee or as a free service; does not provide Abortions or make referrals to Abortion providers; does not provide Comprehensive Birth Control Services or make referrals for Comprehensive Birth Control Services; and is not licensed or certified by the state or federal government to provide medical or health care services. (Stip. Tab A; P-2 at 10-9-1(C)) Comprehensive Birth Control Services was defined as all drugs and medical devices that have been approved by the U.S. Food and Drug Administration for birth control. (Stip. Tab A; P-2 at 10-9-1(B)) (emphasis added). The FDA has approved emergency contraception as a form of birth control. Def.s Answer to Pls Am. Compl 20. The Centers believe that emergency contraception can at as an abortifacient.
Notably, the Press Release did not state any other reason for passing the ordinance; there was no mention that Austin pregnancy centers have in any way been untruthful or misleading about the services they offer. Additionally, Council Member Spelmans website stated that the 2010 Ordinance require[s] [pregnancy centers] to post signs that say they do not provide or refer for birth control services or abortion, so that women know if they require those serves that they will need to seek them elsewhere (Stip. Tab S; P-23 at 3) (emphasis added), affirming the Citys stated purpose for passing the 2010 Ordinance: consumer awareness. To support passage of the 2010 Ordinance, the City cited four documents as Additional Backup Material (P-3): a 2009 Annual Report by the NARAL Pro-Choice Texas Foundation entitled Taxpayer Financed Crisis Pregnancy Centers in Texas: A Hidden Threat to Womens Health (2009 NARAL Report) (Stip. Tab F; P-4), a July 2006 report prepared for Representative Henry A. Waxman by the Special Investigations Division of the United States House of Representatives Committee on Government ReformMinority Staff (the Waxman Report) (Stip. Tab E; P-5), a fiscal memo, and a draft of the ordinance. None of these items offered any evidence that pregnancy centers in Austin had been untruthful or misleading about their services. Furthermore, during the April 8, 2010 Austin City Council meeting, no evidence was presented either from the City Council or from any individual testifying in favor of the Ordinance that any pregnancy center in Austin has been untruthful or misleading about their services (Stip, Tab C; P-7). The only evidence supporting the 2010 Ordinance that was specific to Austin was the written testimony of Ambrosia Ortiz y Prentice5 (Stip. Tab L; P-8), who stated that she disagreed with the religious viewpoint presented and that
Although she did not disclose this in her written statement, Ms. Ortiz y Prentice serves on the Board of Directors of NARAL Pro-Choice Texas (P-8), an organization that worked to pass the Ordinance in Austin (see, e.g., P-29; P-30, P-85). It is therefore not surprising that she disagreed with APRCs religious and (constitutionally protected) viewpoint against abortion. Additionally, APRC documents each client who receives services from the center (through its various intake forms), and it has no record of Ms. Ortiz y Prentice ever visiting the center.
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Filed 03/29/12 Page 10 of 51
it made her feel uncomfortable; Ms. Ortiz y Prentice did not claim that APRC was dishonest about the services it provides or was untruthful in any way. Id. While the evidential record for Defendants provided no information that the Centers were dishonest, the Centers presented ample evidence demonstrating their transparency and truthfulness with clients. Representatives of pregnancy centers in Austin testified that they always provide truthful and accurate information about their services. (Stip. Tab C; P-7). Marie Seale, Director of the Office of Pro-Life Activities and Chaste Living for the Catholic Diocese of Austin, testified that the GPLC and its representatives are always honest about the services that we provides and do not provide. (Stip. Tab C; P-7 at 13:1-2). Ms. Seale provided the City with a copy of its intake form (P-54), the first thing that a client sees that discloses to clients that the GPLC is not a medical facility and that [it] do[es] not provide or refer for abortions. (Stip. Tab C; P-7 at 13:2-7). Terry Williams, the Executive Director of Care Net Austin, testified that Care Net pregnancy center provides clients with accurate and truthful information including proper disclaimers to clients stating that the center does not refer for abortions. (Stip. Tab C; P-7 at 18:12, 18:15-18). Both the representative from GPLC and Care Net stated that the centers use A Womans Right to Know brochure, published by the state, to provide clients with accurate information on abortion (Stip. Tab C; P-7, 14:21-23, 18:3-6). In addition to failing to present any evidence that the pregnancy centers in Austin have been untruthful about their services, the Waxman and 2009 NARAL reports both exhibit hostility towards pregnancy centers and their religious viewpoint against abortion. (Stip. Tabs E, F; P-4, P-5). The 2009 NARAL Report faults pregnancy centers for having the express purpose of persuading pregnant teenagers and women seeking services for unexpected pregnancies to opt for motherhood and adoption and accuses them of having the express purpose of interfering
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with pregnant teenagers and women who are seeking comprehensive womens healthcare. (Stip. Tab F; P-4 at 15, 17). The NARAL Report calls pregnancy centers biased and anti-choice, and states that their primary purpose is to advance an ideological, political, and religious agenda. (Stip. Tab F; P-4 at 23). It accuses pregnancy centers of having a controversial history and a religious, anti-choice mission such as shar[ing] Gods gift of eternal life through Jesus Christ with women in crisis pregnancies by ministering to the physical, emotional, and spiritual needs of women . Id. The Waxman Report criticizes pregnancy centers because they are virtually always prolife organizations whose goal is to persuade teenagers and women with unplanned pregnancies to choose motherhood or adoption and refers to one centers religious mission in a demeaning manner. (Stip. Tab E; P-5 at 1). It concludes by accusing pregnancy centers of engaging in tactic[s] [that] may be effective in frightening pregnant teenagers and women and discouraging abortion. (Stip. Tab E; P-5 at 14). C. Repeal of the 2010 Ordinance On January 26, 2012, after Plaintiffs brought a lawsuit challenging the constitutionality of the 2010 Ordinance, claiming inter alia that the 2010 Ordinance required compelled false speech, and three federal court decisions6 found similar ordinance to be unconstitutional, the City passed Ordinance Number 20120126-017, An Ordinance Repealing Chapter 10-9 of the City Code. (P-19). One of the supporting materials (P-18) for the ordinance stated:
The Law Department recommends repeal of the ordinance. At the time the City Council passed the ordinance in 2010, there were no court decisions ruling on the constitutionality of similar ordinances. Subsequent to its passage, federal courts in other parts of the country have ruled that certain language in this type of ordinance is unconstitutional. Those court decisions have been appealed, and it is likely the U.S. Supreme Court will be asked to address the constitutionality of this type of ordinance. The City of Austin has also been sued following issuance of the court rulings, and the Law Department recommends
O'Brien v. Mayor and City Council of Baltimore, 768 F. Supp. 2d 804 (D. Md. 2011); Tepeyac v. Montgomery County, 779 F. Supp. 2d 456 (D. Md. 2011); Evergreen Association v. City of New York, 801 F. Supp. 2d 197 (S.D.N.Y. 2011).
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6
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repeal of the ordinance to avoid further litigation costs.
D. Chapter 10-10 of the Austin City Code: the 2012 Ordinance On January 26, 2012, the same day the City repealed the 2010 Ordinance, the Austin City Council unanimously passed ordinance No. 20120126 An Ordinance Amending the City Code to Add Chapter 10-10 to Require Signs at Unlicensed Pregnancy Service Centers; Creating an Offense and Imposing a Penalty (2012 Ordinance or the Ordinance) (Stip. Tab B; P-19). The 2012 Ordinance requires unlicensed pregnancy service centers to prominently display a black and white sign, in English and in Spanish, affixed to the entrance of the center so that the sign is conspicuously visible to a person entering the center, that accurately discloses the following information: (1) whether the center provides medical services[;] (2) if the center provides medical services, whether all medical services are provided under direction and supervision of a licensed health care provider; and (3) if the center provides medical services, whether the center is licensed by a state or federal regulatory entity to provide those services. (Stip. Tab. B; P-19). Regarding the third required disclaimer, the City stipulated that there is no license a pregnancy center can obtain from a state or federal regulatory entity for only providing sonograms and pregnancy diagnoses. (Stip. 25). An Unlicensed pregnancy service center was defined as an organization or facility that: as its primary purpose, provides pregnancy related services, including pregnancy testing and options counseling; and does not have a health care provider that is licensed by a state or federal regulatory entity maintaining a full time practice on site. (Stip. Tab. B; P-19 at 10-10-1(1)). The 2012 Ordinance states that Medical Service includes, without limitation, diagnosing pregnancy or performing a sonogram. (Stip. Tab. B; P-19 10-10-1(2)). The ordinance is
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enforced with criminal penalties.7 The City stipulated that the 2012 Ordinance compels speech and mandates the timing and content of Plaintiffs speech, by requiring the sign specified in the Ordinance. (Stip. 20). City further stipulated that the 2012 Ordinance only applies to speakers who discuss the topic of pregnancy (Stip. 16). Additionally, the City stipulated that even though the Ordinances language appears viewpoint neutral, that 2012 Ordinance was designed to apply to the same centers as the 2010 Ordinance, those who do not provide or refer for abortion and comprehensive birth control services (Stip. 4), so it is in fact viewpoint-based. Additionally, the City admitted that it drafted the definition of a pregnancy center to only target the narrow class of pregnancy centers, and no other organizations (Spelman Depo. 83:4-15). The City stipulated that [t]here is no requirement that a [center] has committed any wrongdoing to be regulated by the 2012 Ordinance (Stip. 18) so even centers whose practices are flawless are subject to regulation and criminal penalties. Lastly, the City stipulated that the 2012 Ordinance only applies to organizations that do not have a health care provider who maintains a full time practice on site. Organizations that have a health care provider who supervises all medical services, as defined in the Ordinance, still must post the disclaimer if the practice isnt full time. (Stip. 17). Attached to the item, the City Council had ten documents as Supporting Materials: the text of a draft ordinance (Draft Ordinance) (P-13), which was different than the ordinance ultimately passed8; Item from Council; March 2011 NARAL Pro-Choice Texas Foundation !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
7
An owner or operator commits an offense if the owner or operator violates [the 2012 Ordinance]. An offense under this article shall be punished by a fine of not less than $250 for the first offense, not less than $350 for a second offense, and not less than $450 for a third or succeeding offense. A culpable mental state is not required, and need not be proved, for an offense under this chapter. (Stip. Tab. B; P-19 at 10-10-3). 8 The City admitted that [i]t was never mentioned during the City Council meeting that a different version of Chapter 10-10 was being substituted or enacted. The new language of Chapter 10-10 was never read during the City Council meeting. (Def.s Answer to Pls. Am. Compl. 78).
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Report entitled The Texas Alternatives to Abortion Program: Bad Health Policy, Bad Fiscal Policy (2011 NARAL Report,) (Stip. Tab G; P-14); Texas Pregnancy Care Networks financial statements from 2007-09; an Agreement between the Health and Human Services Commission and Texas Pregnancy Care Network for Program and Administrative Services; and five Texas Alternative to Abortion Services Program Quarterly Status Reports. (Stip. 8; P-11). None of these documents provided as supporting material evidenced that any of the Austin pregnancy centers have misrepresented or mislead their clients about whether they are medical facilities or have engaged in any other deceptive practices concerning their services. Additionally, no one from the public testifying in favor of the 2012 Ordinance stated that any Austin pregnancy center had misrepresented their services to clients or committed any other wrongdoings (Stip. Tab D; P-20). Furthermore, the 2011 NARAL Report, which the City publically posted as a supporting material for the 2012 Ordinance exhibits hostility towards the religious viewpoint against abortion. It states that the Alternatives to Abortion Program is wasteful and inefficient because it uses money to purchase materials produced by religious organizations. (Stip. Tab G; P-14 at 2). It goes on to fault pregnancy centers for using literature from religious organizations and from ordering materials from religious sources such as Loving and Caring, Inc. (whose mission is to pray and work towards keeping the pro-life community holy and seeking the face !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! of God). (Stip. Tab G; P-14 at 6). The 2011 NARAL Report criticizes one unnamed pregnancy
The Draft Ordinance defines a Limited Service Pregnancy Center as an organization or facility that: as its primary purpose, provides pregnancy related services, such as pregnancy testing or options counseling; does not provide Abortions or make referrals to Abortion providers; does not provide Comprehensive Birth Control Services or make referrals for Comprehensive Birth Control Services[;] and is not licensed or regulated by a state or federal regulatory entity to provide medical services. P-13 at 10-10-1 (C) (emphasis added). The Draft Ordinance, like the 2010 Ordinance, targeted organizations that spoke about the topic of pregnancy from the pro-life perspective: those that did not refer for abortion and comprehensive birth control. The language changed from the Draft Ordinance (which specifically only applied to centers that do not provide or refer for abortion and comprehensive birth control) to the 2012 Ordinance on the advice of [the Citys] attorneys (Spelman Dep. 86:8-10).
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center in San Antonio for providing religious references. (Stip. Tab G; P-14 at 6). The Report further describes pregnancy centers as independentoften church-affiliatedorganizations that offer limited counseling services. [They] regularly provide biased and frequently inaccurate information about the supposed risks (both spiritual and physical) of safe and legal abortion care, contraception, premarital sex, and other subjects. (Stip. Tab G; P-14 at 7) (emphasis added). The 2011 NARAL Report criticizes an unnamed center for an alleged interaction between a young woman and a pregnancy volunteer where the volunteer discussed what she understood as the spiritual consequences of pre-martial sex; the report called this false information and scare tactics. (Stip. Tab G; P-14 at 8) (emphasis added). The report faulted pregnancy centers for offering either prayer or religious counseling and maintaining connections to Care Net, a national organization working to promote a culture where lives are transformed by the Gospel of Jesus Christ.9 (Stip. Tab G; P-14 at 8). The City stipulated that the 2012 Ordinance was created to achieve the same goals, in whole or in part, as the 2010 Ordinance (Stip. 4), namely consumer protection and consume awareness. (Spelman Dep. 36:2-3; Stip. Tab R; P-17). Council Member Spelman, the Sponsor of the 2012 Ordinance, stated the purpose: This is a consumer awareness issue. I still believe that it is important for women to have as much information about these businesses as possible. (Stip. Tab R; P-17).10 During the Council Meeting, each City Council member stated the reasons for passing the Ordinance. Each Council Member only stated vague !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
The 2011 NARAL report incorrectly states that maintaining ties to a Christian organization and offering religious help violates the Charitable Choice Act. The Charitable Choice Act requires that religious activates be separate in time or location from federally funded activities, but does not require that groups receiving funds not be religious or have no ties to religious groups (indeed, it is a violation of the act if the government discriminated against groups that are religious in nature). The act further allows clients to voluntarily participate in religious activities. 45 C.F.R. 260.34 (b)-(c). 10 During the City Council meeting, Council Member Spelman stated in reference to the Draft Ordinance, All were doing is asking people to tell the truth. Stip. Tab D; P-20.
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justifications, not tied to any facts in the record demonstrating that the Austin centers had committed any wrongdoings. Specifically the Council Members stated the 2012 Ordinance furthers womens rights, information rights, transparency and mak[es] sure groups do not mislead or misinform (Stip. D; P-20, 46:18-19, 47:23, 48:15-16). Only Council Member Spelman made a statement about facts in the record when he stated that the information in the backup to this motion, which I think all of us have had access to for several daysdocument[s] that many crisis pregnancy centers in Austin, Texas [have] posed significant problems for a large number of women for a long period of time. (Stip. D; P-20, 50:3-8). However, nothing in the backup information stated that any of the Austin centers had harmed women in any way; specifically, nothing in the backup information stated that any Austin center had misrepresented the nature of their services to any client, including whether they are medical facilities. Spelman incorrectly thought that the 2011 NARAL Report studied pregnancy centers in Austin. (Spel. Dep. 151:20 -152:9). The City has admitted, however, that [t]here is no evidence in the 2011 NARAL Report that any of the Austin pregnancy centers have misrepresented or mislead their clients about whether they are medical facilities or engaged in any other deceptive practices concerning their services. (Def.s Answer to Pls. Am. Compl. 54). Contrasted to the Citys complete lack of evidence showing that pregnancy centers are misleading clients about their services, the Plaintiffs submitted scores of documents proving their truthfulness regarding their services. The information included copies of intake forms, release forms, disclaimers, and referrals provided to clients, including medical referrals. The information submitted to the City Council stated that each Center is always upfront and truthful with clients about the scope of services and client confidentiality. (Stip. Tabs I-K; P-15). Specifically, the information submitted to the Council demonstrated that each Center discloses to its clients that it
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is not a medical facility (Stip. Tabs I-K; P-15 at 7, 9, 32, 34, 6611) and refers clients to medical facilities for medical care (Stip. Tabs I-K; P-15 at 4-5, 25, 41, 43, 52-59, 72, 76, 84-8512). Furthermore, the Centers submission showed that all of their advertisements are truthful (Stip. Tabs I-K; P-15 at 23, 36 8, 40-41, 48, 50, 71-72). II. ARGUMENT The 2012 Ordinance violates the Plaintiffs federal constitutional rights to be free from compelled misleading speech, content- and viewpoint- based discrimination, regulations that are substantially overbroad and vague, violate equal protection, and infringe on the free exercise of religion. Furthermore, the 2012 Ordinance violates the Plaintiffs Texas Constitutional claims for freedom of speech and religion, and their state statutory claim under the Texas Religious Freedom Restoration Act. A. The 2012 Ordinance forces the Centers to engage in compelled speech and compelled misleading speech The City admits that the 2012 Ordinance compels speech and mandates the timing and content of Plaintiffs speech, by requiring the sign specified in the Ordinance (Stip. 20). [O]ne important manifestation of the principle of free speech is that one who chooses to speak may also decide what not to say, Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 573 (1995) (quoting Pacific Gas & Electric Co. v. Public Utilities Comm'n of Cal., 475 U.S. 1, 11 (1986)); see also Wooley v. Maynard, 430 U.S. 705, 714, (1977) ("A system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts."). It is well-established !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
11 12
GPLC Request for Services Form; GPLC Statement of Self-Administered Pregnancy Test; APRC New Client Request for Services; APRC Return Client Request for Services; SAPRC New Client Request for Services. GPLC refers clients to the John Paul II Life Center for Sonograms and to the Vitae Clinic or St. Davids for prenatal medical care; APRC and SAPRC make referrals to over fifteeen various hospitals, clinics, dentists and physicians for medical care, including prenatal care.
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that the government cannot compel one to recite a government-dictated message or host another speakers message. Pacific Gas & Electric Co., 475 U.S. 1 (1986) (plurality opinion) (compelling corporation to include third-party speech in billing envelopes violates First Amendment); Wooley v. Maynard, 430 U.S. 705 (1977) (compelling citizen to display license plate containing state motto with which he disagrees violates the First Amendment); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974) (compelling newspaper to publish a reply-piece by a candidate violates First Amendment); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (compelling schoolchildren to salute flag and recite pledge violates First Amendment). Even if the Ordinance compelled only true statements, it could not withstand constitutional review. See Hurley, 515 U.S. at 573-74 (The government may not compel affirmance of a belief with which the speaker disagrees.Indeed, this general rule, that the speaker has the right to tailor the speech, appliesequally to statements of fact.); Riley v. Natl Fedn of Blind, 487 U.S. 781, 797-98 (1988) (striking down a state law requiring factual disclosures). The Ordinance is even more harmful and constitutionally suspect because it compels misleading statements. APRC and SAPRC representatives provide limited sonograms, but do not diagnose pregnancy (Stip. Tabs J-K; P-15 at 32, 34, 38, 66, 68). Under the 2012 Ordinance, performing a sonogram is deemed a medical service (Stip. Tab B; P-19 at 10-10-1(2)) and both centers therefore have to post a sign at their entrance stating that they provide[] medical services. (Stip. Tab B; P-19 at 10-10-2(A)(1)). However, APRC and SAPRC communicate to clients, both orally and in writing, that they are not medical facilities and make referrals to hospitals, clinics, and physicians for the provision of medical services. (P-15 at 26-30; 32, 34, 41, 43, 52-
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59, 60-64, 66, 68, 72, 76, 84-85; P-57 at 8). Forcing APRC and SAPRC to state that they provide medial services directly conflicts with what they communicate to clients, and will ultimately mislead clients to think that these two centers are medical facilities, when they are not. Additionally, the 2012 Ordinance requires APRC and SAPRC to state that they are not licensed by a state or federal regulatory entity to provide medical services. (Stip. Tab B; P-19 at 10-10-2(A)(3)). However, as the City stipulated, [t]here is no license a pregnancy center can obtain from a state or federal regulatory entity for only providing sonograms and pregnancy diagnoses. (Stip. 25). The 2012 Ordinance therefore requires the Center to state that they do not have a license that is impossible for them to obtain. The 2012 Ordinance therefore forces APRC and SAPRC to deliver the implied and misleading message that their services are not up to state licensing standards, even though they are in full compliance with all applicable laws. The 2012 Ordinance requires GPLC to state that it does not provide medical services. Although the GPLC does not provide medical services in-house, it attempts to makes referrals to the Vitae Clinic13 or other medical facilities that are in line with the Catholic Churchs teaching on abortion and birth control (Stip. Tab I; P-15 at 5, 25) as part of its religious ministry. Ensuring that women receive medical care, especially medical care that respects Catholic doctrine, is one of the GPLCs primary objectives. By mandating that the Gabriel Project post the disclaimer sign, the Defendant is forcing it to deliver the implied, misleading message that it does not provide access or information on how women can obtain medical care. Government action that requires the utterance of a particular message favored by the Government, contravenes this essential right [to freedom of expression]. Turner Broad. Sys. v. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
13
FCC, 512 U.S. 622, 641 (1994). Laws of this sort pose the inherent risk that the Government
Through the prayers of many and the support of the John Paul II Life Center, the Vitae Clinic opened its clinic doors in October of 2010 to provide women with excellence in healthcare while promoting the Culture of Life. http://www.vitaeaustin.com/About.html
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seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion. These restrictions raise the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace. Id. (quoting Simon & Schuster, Inc. v. Members of the New York State Crime Victims Bd., 502 U.S. 105, 116 (1991)). Although Plaintiffs speech may be politically unpopular in Austin, it is nevertheless entitled to full protections under the First Amendment, and Defendant cannot seek to stifle it through regulations. All three federal district courts to evaluate similar ordinances compelling pregnancy centers to post disclaimers have found them to be a form of compelled speech subject to strict scrutiny, regardless if the required disclosures are factual. OBrien, 768 F. Supp. 2d at 812, 81617; Tepeyac, 779 F. Supp. 2d at 463, 471; Evergreen, 801 F.Supp.2d at 203-04, 206-07. As outlined in Section II.H infra, the Ordinance fails strict scrutiny and is thus unconstitutional. B. The 2012 Ordinance discriminates based on content and viewpoint It is axiomatic that the government cannot regulate speech based on its content or viewpoint. Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 828 (1995). [A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. Police Dept. v. Mosley, 408 U.S. 92, 95 (1972). Indeed, [c]ontent-based regulations are presumptively invalid. R.A.V. v. St. Paul, 505 U.S. 377, 382 (1992). The Defendant stipulated that the 2012 Ordinance only applies to speakers who discuss the topic of pregnancy. (Stip. 16). Indeed, only an organization or facility that, as its primary purpose, provides pregnancy related services, including pregnancy testing and options counseling and does not have a health care provider maintaining a full time practice on site must post the disclaimers. (Stip. Tab B at 10-10-1(1)). Defendant has not required organizations Plaintiffs Roman Catholic Diocese, et al. Opening Trial Brief 20
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that speak on any other topic to make such a disclosure; if the Centers primary purpose were to address cancer, sexually transmitted diseases, vaccines, or any other subject, they would not be subject to the Ordinance. The Ordinance singles out the Centers because they choose to provide information and services related to the topic of pregnancy and is therefore a presumptivelyinvalid, content-based restriction. Even worse, the Ordinance further targets speech based on the particular viewpoint expressed. When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. Rosenberger, 515 U.S. at 829; Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1132 (2009) (Restrictions based on viewpoint are [] prohibited.). Defendant stipulated that the 2012 Ordinance was designed to apply to the same centers as the 2010 Ordinance, those who do not provide or refer for abortion and comprehensive birth control services. (Stip. 4). Furthermore, as the history of the Ordinance demonstrates, the Defendant intentionally drafted it to only target centers that hold a viewpoint against abortion and comprehensive birth control.14 Furthermore, the Defendants supporting materials demonstrate hostility toward one viewpoint15 and Council Member Spelman stated that pregnancy centers are a brainwashing outfit. (P-78, Transcript of NARAL !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
14
video at 3:6-9), despite his testimony he has never been to a pregnancy center or spoken to a
The now-repealed Chapter 10-9 and the first draft of Chapter 10-10 on their faces only applied to one viewpoint. Furthermore, the current Ordinance was gerrymandered to apply to one viewpoint; the requirement that a health care provider maintain a full time practice on site shows that the Defendants intent is to only regulate pregnancy centers that primarily provide information and referrals to clients, as opposed to abortion clinics who primarily provide medical services. 15 The three reports that evidence hostility to the pro-life, religious viewpoint are the 2009 NARAL Report, the Waxman Report, and the 2011 NARAL Report. The 2009 NARAL report calls pregnancy centers biased and anti-choice, and states that their primary purpose is to advance an ideological, political, and religious agenda. (Stip. Tab F; P-4). The 2011 NARAL report criticizes pregnancy centers for using religious, pro-life literature. (Stip. Tab G; P-14). The Waxman Report faults pregnancy centers because they are virtually always pro-life organizations whose goal is to persuade teenagers and women with unplanned pregnancies to choose motherhood or adoption. (Stip. Tab E; P-5).
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senior staff member of a pregnancy center (Spelman Dep. 25:15-21). In OBrien, the court found it probative that the government described the pregnancy centers speech as propaganda, and stated that [s]uch descriptions can only support the conclusion that Defendants enacted the Ordinance out of disagreement with Plaintiffs viewpoints on abortion and birth-control. 768 F. Supp. 2d at 816. In the same way, the hostile reports cited by the Defendant, Spelmans characterization of the centers, and the gerrymandered language of the Ordinance can only lead to the conclusion that Defendant passed the Ordinance due to its disagreement with the Centers viewpoint. Additionally, emails from the City of Austin show that the City was targeting the Plaintiffs because they disagreed with their position on abortion and comprehensive birth control. Prior to the drafting of the 2010 Ordinance, emails between City employees and others list each center in Austin by name, showing they were targeted (P-26, P-27, P-28). An email stated that the Baltimore Ordinance (the model for Austins 2010 Ordinance16) was criticized because it only applied to one viewpoint; the email went on state If we wrote our own disclosure [for pro-choice facilities] and include it we diminish that criticism and seem reasonable, that of course may not be the goal, we may want to just flex our muscle in Travis County and say to [sic] damn bad we have the power and this is what we want. (P-30); the City ultimately decided to only target pro-life centers. At one point, the City was considering including a phone number on the signs that would direct women to pro-choice facilities (P-32) and it was stated by one of the Citys Womens Commissioners17 Id like to impact of [sic] this proposal to add a list of C[ity] O[f] A[ustin]-contracted agencies which provide pregnancy services (inc[luding] abo[rtion] and b[irth] c[ontrol]). I think our general goal (personally and
P-32; P-33; P-34. Laurie Felker Jones is Council Member Spelmans appointment to the Citys Commission for Women (Spelman Dep. 140:18-141:13).
17 16
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politically) is so get women to a place where they can get what they need: terminate if they choose, plan for a spaced pregnancy by getting repro[ductive] health care and b[irth] c[ontrol] (P-32 at 2-3). At one point, the City considered using 2-1-118 as a referral number they could put on the signs. However, when the City discovered that 2-1-1 refers to both pregnancy centers and abortion clinics, it found this option to unacceptable. (P-35). Specifically, the City stated Our intern called 211, and we discovered that they refer women to CPCs, as well as to places that offer comprehensive services/non-directive counseling. [I]f you dont SPECIFICALLY ask for family planning or abortion, you get referred to ALL the agencies from Planned Parenthood to Lifecare.[We] would really prefer to be able to refer women somewhere for referrals and comprehensive options counseling on the signs, and [] 211 does not appear to be the answer (P-35). The City found it unacceptable that 2-1-1 presented all choices to women; it only wanted women to have information on places that provide abortion services and not places that provide alternatives to abortion.19 This type of viewpoint discrimination is unconstitutional. R. A. V. v. St. Paul, 505 U.S. 377, 391 (1992) (The First Amendment does not permit [the government] to impose special prohibitions on those speakers who express views on disfavored subjects.). In both OBrien and Tepeyac, the courts found that similar ordinances were viewpoint and/or content discriminatory. OBrien, 768 F. Supp. 2d at 816; Tepeyac , 779 F. Supp. 2d at 462 & n.5. Because it is content and viewpoint discriminatory, the Ordinance is presumptively unconstitutional, and can only stand if the government proves that it satisfies strict scrutiny. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
2-1-1 is a service of the United Way (P-37). The 2-1-1 Texas community resource database contains detailed information about available health and human services provided by government agencies, nonprofit organizations, and faith-based entities serving the residents of our 10-conty service area (2-1-1 Texas Info Sheet, P- 35 at 2). 19 Additionally, the City also rejected Austins 3-1-1 service (which allows individuals to request social services over the phone) as a number to put on the signs because it refers to 2-1-1 and would provide women with all referrals, to both PRCs and abortion clinics. (P-37).
18
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United States v. Playboy Entmt Group, 529 U.S. 803, 813 (2000). The Ordinance cannot meet this high standard, see Section II.H. infra. C. The Centers are engaging in religious and charitable speech, not commercial speech The PRCs are engaging in protected, non-commercial expression. Commercial speech is defined as speech proposing a commercial transaction. Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 64 (1983). [A]n organization does not propose a commercial transaction simply by offering a good or service that has economic value. Rather, a commercial transaction is an exchange undertaken for some commercial purpose[.] Evergreen Ass'n, 801 F. Supp. 2d at 205 (emphasis added). The PRCs are not motivated by profits or economic incentives but by their sincerely-held religious beliefs. Furthermore, they do not enter into any sort of commercial transactions with the women and families they serve; all of their products and services are free of charge. The PRCs are therefore properly classified as ministries engaged in fully-protected religious speech; not businesses engaging in commercial speech. Indeed, APRC and SAPRC are each an outreach ministry of Jesus Christ through His Church. (Stip. Tab M; P-1 at 1). The GPLC is a ministry of the Roman Catholic Diocese of Austin and Catholic Charities of Central Texas that exists to be pastoral by meeting both the spiritual and material needs of women and families. (see P-48 at 3, 4). It is totally irrelevant that the Centers provide their clients with free goods and services that the clients would otherwise have to purchase. As the Evergreen decision pointed out when enjoining a similar ordinance regulating PRCs:
If speech becomes commercial speech merely through the offer of a valuable good or service, then any house of worship offering their congregants sacramental wine, communion wafers, prayer beads, or other objects with commercial value, would find their accompanying speech subject to diminished constitutional protection. Likewise, a domestic violence organization advertising shelter to an abuse victim would find its First Amendment rights curtailed, since the provision of housing confers an economic benefit on the recipient. But plainly speech by a church or domestic violence organization is not undertaken for a commercial purpose. For the same reasons, the offer of free services such as pregnancy tests in furtherance of a religious belief does not propose a commercial transaction. Adoption of [the argument that offering
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goods and services transforms speech to commercial speech] would represent a breathtaking expansion of the commercial speech doctrine.
801 F. Supp. 2d at 205 (internal quotations and citations removed). Moreover, commercial speech [is] expression related solely to the economic interests of the speaker and its audience. Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 561 (1980) (emphasis added). As stated above, the expression of the PRCs is wholly related to and motivated by religious and charitable interests. Defendant has previously asserted that the GPLC engages in commercial speech because some of its activities are reimbursed by the government through the TPCN. Receiving government reimbursement does not mean that the GPLC is engaging in their speech for a commercial purpose. Indeed, of all GPLCs client visits more than half are not eligible for reimbursement through TPCN.20 Additionally, the GPLC is not reimbursed for pregnancy tests (Skinner Dep. 89:1823), one of GPLCs services and one that it heavily advertises. (P-47, P-51). When the GPLC is reimbursed for material goods, the reimbursement is limited to ten dollars per distribution of clothing, food, or furniture (Skinner Dep. 80:2381:14) and up to four times per client (Skinner Dep. 82:46). One distribution is typically five to seven outfits (not pieces) or a bag full of food (Skinner Dep. 82:1215, 83:12 14), which likely costs much more than the reimbursement that GPLC receives. If GPLC were concerned about its economic interest, it would not provide help primarily to persons whose provision cannot be reimbursed, heavily advertise a service that cannot be reimbursed, and distribute five to seven whole outfits for a reimbursement of only ten dollars, when GPLC would receive the same reimbursement for only one outfit. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
20
But, even assuming arguendo that the PRCs speech contains some commercial elements,
51.18% of all GPLC client visits since January 1, 2010 were not eligible for reimbursement through TPCN. The GPLC serves both undocumented immigrants and those here with proper documentation. Because TPCN does not reimburse for undocumented immigrants, and a large percentage of the GPLCs clientele is undocumented, more than half of all client visits are ineligible for reimbursement.
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it would still receive the full protection of the First Amendment due to the intertwined religious and charitable speech. The Supreme Court stated, We do not believe that the speech retains its commercial character when it is inextricably intertwined with otherwise fully protected speech. [W]e cannot parcel out the speech, applying one test to one phrase and another test to another phrase. Riley v. Natl Fedn of Blind, 487 U.S. 781, 796 (1988) (recognizing that charitable solicitation is typically informative and persuasive speech, and therefore fully protected expression). The Centers speech is protected, non-commercial expression. Indeed, three federal district courts evaluating similar ordinances concerning pregnancy centers have all held that their speech is improperly classified as commercial expression and therefore entitled to full protection. Evergreen Ass'n, 801 F. Supp. 2d at 204-05; Tepeyac, 779 F. Supp. 2d at 463; O'Brien, 768 F. Supp. 2d at 813. D. The Centers are not engaging in Professional Speech Defendant have argued that even though the Ordinance compels speech, it is not subject to strict scrutiny because the Centers are engaging in professional speech by addressing topics related to health such as pregnancy. Def.s Mot. Dismiss 11-15. Two other federal district courts have evaluated whether the speech of virtually identical pregnancy resource centers should be classified as professional speech, and both have rejected the argument. In Tepeyac, the District Court for the District of Maryland held that even if the broadest interpretation of the professional speech doctrine is applied a pregnancy center that provides free information and services related to pregnancy, including confidential discussion of pregnancy options is not engaging in professional speech. 779 F. Supp. 2d at 467-68. Likewise, the District Court for the Southern District of New York held in Evergreen Association that a pregnancy center that offers obstetric ultrasounds, obstetric sonograms or prenatal care[,] or (2) has the appearance of Plaintiffs Roman Catholic Diocese, et al. Opening Trial Brief 26
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a licensed medical facility,"21 and meets with the client individually for pregnancy counseling,22 does not engage in professional speech. 801 F. Supp. 2d at 20002, 2223. The Centers in this case are indistinguishable from the ones at issue in Tepeyac and Evergreen,23 and this court should likewise find that their speech is not professional speech and therefore entitled to the fullest protections of the First Amendment. A regulation burdening professional speech is subject to a lower level of scrutiny because it is merely a regulation of a profession with incidental effects on speech. Tepeyac, 779 F. Supp. 2d at 467. The government may properly restrict entry into professions and vocations through licensing schemes, and the regulation of a professionals speech is inherently tied to the governments authority to regulate the profession. Lowe v. SEC, 472 U.S. 181, 229 (1985) (White, J., concurring). [B]urdens on professional speech are more susceptible to disclosure requirements in light of the government's interest in regulating the underlying profession. Tepeyac, 779 F. Supp. 2d at 465-466 (emphasis added); see also Lowe, 472 U.S. at 232 (White,
The following factors are among the factors that shall be considered in determining whether a facility has the appearance of a licensed medical facility:[whether the facility] (a) offers pregnancy testing and/or pregnancy diagnosis; (b) has staff or volunteers who wear medical attire or uniforms; (c) contains one or more examination tables; (d) contains a private or semi-private room or area containing medical supplies and/or medical instruments; (e) has staff or volunteers who collect health insurance information from clients; and (f) is located on the same premises as a licensed medical facility or provider or shares space with a licensed medical provider. Evergreen Ass'n, 801 F. Supp. 2d at 200. 22 Both the Tepeyac and the Evergreen Association courts explicitly rejected the argument that advice given in the form of information in a one-on-one setting transforms the speech into professional speech. The Evergreen Association court, in finding that the pregnancy centers did not engage in professional speech, stated that [w]hile Plaintiffs meet with clients individually, there is no indication that they employ any specialized expertise or professional judgment in service of their clients' individual needs and circumstances. 801 F. Supp. 2d 197, 207; Tepeyac, 779 F. Supp. 2d at 467 (finding that confidential discussions of pregnancy optionsin person-to-person situations does not make the speech professional and individualized). What matters is not whether the Centers offer general information and services that are relevant to the womens situation, but whether they employ any specialized expertise or professional judgment in doing so. 23 The pregnancy center at issue in Tepeyac among other thingsprovides pregnancy testing, referral services,confidential discussion of pregnancy options[,]information on parenting and post-abortion guidance[,][and] practical support in the form of diapers, baby clothes, and other needed items," all free of charge. 779 F. Supp. 2d at 460. The various pregnancy centers at issue in Evergreen Association provide various pregnancy-related services, including pregnancy testing, ultrasounds, [] counseling[,]parenting and maternity education, [] referrals to adoption and domestic violence agencies and to licensed medical facilities[,]nonfinancial assistance in the form of diapers, formula, clothing, and toys[,]...[and] residential facilities for homeless and abused pregnant women. 801 F. Supp. 2d 197, 201-202 (S.D.N.Y. 2011).
21
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J., concurring) ("Just as offer and acceptance are communications incidental to the regulable transaction called a contract, the professional's speech is incidental to the conduct of the profession."). The Centers are not members of the regulated medical profession, but are charitable and religious organizations; therefore, classifying their speech as professional speech is entirely inappropriate. Furthermore, the 2012 Ordinance by its very terms exempts centers that have medical professionals licensed by a state or federal regulatory entity that maintain a full time practice on site. (Stip. Tab B; P-19 at 10-10-1(1)(b)). Indeed, the 2012 Ordinance targets what it calls unlicensed pregnancy service center[s] (Stip. Tab B; P-19 at 10-10-1(1)(b)) (emphasis added). If the centers have no license, then they are not professions regulated by the state, and the government cannot claim their speech is professional in nature. Indeed, Defendant seeks to blur the key distinction between professional speech and generalized speech related to traditionally professional subject matter. See Tepeyac, 779 F. Supp. 2d at 466. As Justice Jackson stated: [A] rough distinction always exists, I think, which is more shortly illustrated than explained. A state may forbid one without its license to practice law as a vocation, but I think it could not stop an unlicensed person from making a speech about the rights of man or the rights of labor, or any other kind of right, including recommending that his hearers organize to support his views. Likewise, the state may prohibit the pursuit of medicine as an occupation without its license, but I do not think it could make it a crime publicly or privately to speak urging persons to follow or reject any school of medical thought. Id. at 467 (quoting Thomas v. Collins, 323 U.S. 516, 544-45 (1945) (Jackson, J., concurring)) (emphasis added). The government may regulate the speech of abortion providers as it relates to regulating the medical profession, but the government may notas the Defendant hasreach
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the speech of private individuals and ministries who wish to speak against abortion,24 simply because it touches the broad subject of medicine. Defendants may disagree with the centers speech on abortion, abortion risks, and birth control, but that does not mean it can regulate it. Each centers clients only interact with non-professional, unlicensed staff and volunteers. The GPLC only provides information and material assistance. SAPRC and APRC perform sonograms, but they are never performed by medical professionals; indeed Texas does not license individuals who only perform sonograms, so it is impossible for any sonographer to posses a state license. In Evergreen, the court stated that because the state did not require ultrasound technicians to be licensed, their speech could not be classified as professional speech. 801 F. Supp. 2d at 207. Interestingly, the Citys own supporting documents state that pregnancy centers staff community volunteers, not licensed professionals. The 2011 NARAL Report criticize pregnancy centers for not [being] staffed by trained medical provides and counselors and only having community volunteers (Stip. Tab G; P-14 7, 10). The 2009 NARL Report states that TPCN pregnancy centers are staffed primarily by unlicensed volunteers who are specifically prohibited from discussing medical needs. (Stip Tab F; P-4 at 11) It further states pregnancy center have limited expertise and licensed support, and serve primarily as a source of information and referral (Id. at 15). Furthermore, the definition of a professional from Lowe and relied upon in Tepeyac, and Evergreen Association makes clear that the Centers do not fall into this category: !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
24
One who takes the affairs of a client personally in hand and purports to exercise judgment on behalf of the client in the light of the client's individual needs and circumstances is properly viewed as engaging in the practice of a profession. Where the personal nexus between professional and client does not exist, and a
It should also be noted that the subject of abortion is fully protected speech because it is an important issue of public policy. See Snyder v. Phelps, 131 S. Ct. 1207, 1215 (2011) ("[S]peech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.") (internal citation and quotations omitted).
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speaker does not purport to be exercising judgment on behalf of any particular individual with whose circumstances he is directly acquainted, government regulation ceases to function as legitimate regulation of professional practice with only incidental impact on speech; it becomes regulation of speaking or publishing as such.
Tepeyac, 779 F. Supp. 2d at 466 (quoting Lowe, 472 U.S. at 232). The Centers do not purport[] to exercise judgment on behalf of the client or take[] the affairs of a client personally in hand. The Centers simply provide general information concerning the topics of pregnancy; the decision about whether to seek an abortion or carry the pregnancy to term is a choice ultimately left to the woman. The Centers merely give women the tools to reason through whether to have abortions on their own. (APRC, SAPRC, and GPLCs response to Def. Req. for Admis. No. 4). For these reasons, no quasi-fiduciary or actual fiduciary relationship is formed.25 Because the Centers do[] not purport to be exercising judgment on behalf of any particular individual the Ordinance ceases to function as legitimate regulation of professional practice with only incidental impact on speech [and instead] it becomes regulation of speaking or publishing as such. Tepeyac, 779 F. Supp. 2d at 466 (quoting Lowe, 472 U.S. at 232). The Centers are comprised of individuals who seek to fulfill the Centers religious mission, not professionals exercising professional medical judgment. If Defendants argument were accepted, the distinction illustrated in Lowe and Thomas between discussion of professional subject matter and practice of a profession would be rendered meaningless. Tepeyac, 779 F. Supp. 2d at 467. E. The 2012 Ordinance is unconstitutionally vague and substantially overbroad 1. The Ordinance is substantially overbroad
A fiduciary relationship is defined as [a] relationship in which one person is under a duty to act for the benefit of another on matters within the scope of the relationship; Fiduciary relationships- such as trustee-beneficiary, guardian-ward, principal-agent, and attorney-client- require an unusually high degree of care. BLACKS LAW DICTIONARY (9th ed. 2009). As stated above, the Centers simply provide information and resources to women, and are not under the duty to act for their benefit. Therefore, no fiduciary or quasi-fiduciary relationship is formed.
25
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The Ordinances definition of an unlicensed pregnancy service center is so broad that
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it covers any organization or facility that provides pregnancy related services as its primary purpose that does not have a health care provider that is licensed by a state or federal regulatory entity maintaining a full time practice on site. (Stip. Tab B; P-19 at 10-10-1(1)). Organizations that are swept up by this definition face criminal penalties if they do not post the required government-dictated disclaimers. Id. The Ordinance therefore regulates and criminalizes substantially more speech than the Constitution allows. Even [a] clear and precise enactment may nevertheless be overbroad if in its reach it prohibits constitutionally protected conduct. Grayned v. City of Rockford, 408 U.S. 104, 114 (1972). The crucial question, then, is whether the ordinance sweeps within its prohibitions what may not be punished under the First and Fourteenth Amendments. Grayned, 408 U.S. at 114-115. Numerous organizations provide pregnancy related services as their primary purpose, and fall within the ordinances purview because they do not have a licensed heath care provider maintaining a full time practice on site. (Stip. Tab B; P-19). For example, the following organizations all as [their] primary purpose, provide[] pregnancy related services and do not have a full-time health care provider on site: support groups for pregnant women such as the Austin Pregnancy & New Moms Group; fertility organizations that take a holistic, nonmedical approach to pregnancy such as the Texas Center for Reproductive Acupuncture; pregnancy and birthing classes such as Conscious Birthing Austin; lactation consultants such as Central Texas Healthy Mothers Healthy Babies Coalition; adoption agencies such as Adoption Advocates; maternity stores such as Motherhood Maternity; lay counselors who specialize in pregnancy and fertility; ultrasound Imaging centers such as Clearview Ultrasound; and pregnancy spas such as Blooming Pregnancy Spa. These organizations are covered by the Ordinance, and are thus subject to criminal penalties for engaging in protected speech on the
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topic of pregnancy, unless they post the government-mandated disclaimers. The Defendant admitted that the Ordinance applies to some of the above-mentioned organizations in its 30(b)(6) deposition testimony:
Q (by LifeCares Counsel): Was it your intention that this ordinance apply to other groups besides PRCs? A (by Councilmember Spelman): If they fit the requirement that their primary purpose is pregnancy-related services and they do not have a health care provider licensed by state or federal regulatory entity maintaining a full-time practice yes. Q: Okay. So it would perhaps apply to support groups for pregnant women? A: It could. Yes. Q: Pregnancy and birthing coaches? A: If they are not licensed, do not maintain a full-time practice, if theyre providing pregnancyrelated services, absolutely true. Yes, sir.
(Spelman Dep. 89:1025). Additionally, in OBrien, the government affirmatively argued that an ordinance with a similar definition of a pregnancy center26 applie[d] to any persons offering pregnancy-related information including Lamaze instructors, maternity clothing retailers, lactation consultants, et cetera. OBrien, 768 F.Supp.2d at 815. The overbreadth of the Ordinance is thus both real and substantial. See Broadrick v. Okla., 413 U.S. 601, 615 (1973). The Ordinances plain language is admittedly violated scores of times daily yet only some individualsthose chosen by the police in their unguided discretion[are subject to criminal punishment]. Houston v. Hill, 482 U.S. 451, 466-67 (1987). Although all of the organizations listed above fall under the ordinance, it is likely that only some will be targeted and punished for not posting the sign. The Ordinance by [its] broad sweep, might result in burdening innocent associations. Broadrick, 413 U.S. at 612. The First Amendment does not allow criminal punishment under such overbroad regulations because [i]t has long been recognized that the First Amendment needs breathing space. Broadrick, 413 U.S. at 611; !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
[L]imited-service pregnancy center means any person: (1) whose primary purpose is to provide pregnancyrelated services; and (2) who: (i) for a fee or as a free service, provides information about pregnancy-related services; but (ii) does not provide or refer for: (A) abortions; or (B) nondirective and comprehensive birth-control services. Balt. City Health Code 3-501 (emphasis added).
26
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NAACP v. Button, 371 U.S. 415, 433 (1963). 2. The Ordinance is unconstitutionally vague
The First Amendment requires that regulations provide adequate notice that the actions they ban are illegal. United States v. Harriss, 347 U.S. 612, 617 (1954) ([N]o man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.). "A statute can be impermissibly vague for either of two independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement." Hill v. Colorado, 530 U.S. 703, 732 (2000). When a statute affects First Amendment freedoms, as the Ordinance does, the due process doctrine of vagueness demands a greater degree of specificity than in other contexts. Smith v. Goguen, 415 U.S. 566, 573 (1974). The 2012 Ordinances states that Medical Services includes, without limitation, diagnosing pregnancy or performing a sonogram (Stip. Tab B; P-19 at 10-10-1(2)). The Evergreen decision held that the definition of a facility that has the appearance of a licensed medical facility contained in the regulation at issue was unconstitutionally vague because its enumerated factors are only among those to be considered by the Commissioner, allowing the government to determine if something fit the definition based on 'unspecified criteria. 801 F. Supp. 2d at 210 (citing Amidon v. Student Ass'n, 508 F.3d 94, 104 (2d Cir. 2007) ([B]ecause the criteria are nonexclusive, there is a disconcerting risk that the [decision maker] could camouflage its discriminatory use of the [provision] through post-hoc reliance on unspecified criteria.)). In the same way, the definition of medical services lists nonexclusive factors and allows the City to classify a medical service based solely on unspecified criteria. For example, is taking a pregnant womans temperature or dispensing prenatal vitamins a medical service? This
vagueness grants unbridled discretion to the City in enforcing whether a center is complying with Plaintiffs Roman Catholic Diocese, et al. Opening Trial Brief 33
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the ordinance. Additionally, Councilmember Spelman, as the Defendants 30(b)(6) corporate representative, testified to the vagueness of the phrase full time in Ordinance:
Q (by LifeCares counsel): [D]id you define what it meant to have a full-time practice on site? A (by Spelman): No. Q: What do you mean by it? A: Full time means full time. Q: Does it mean they have to have an office there and they have to report there 40 hours a week even if the place is only opened 20 hours? Whats, what do you mean by that? A: Im not sure whatperhaps full time is defined in Blacks Law Dictionary, perhaps full time is just colloquially understood, but from my point of view, full time means something like 40 hours a week. Q: But you did not define it? A: Its not defined in the ordinance. No, sir.
(Spelman Dep. 84:1885:7). As this testimony makes clear, the City of Austins 30(b)(6) corporate representative is unsure how to interpret full time in the Ordinance. An officer or court enforcing the Ordinance or determining whether there was a violation of the Ordinance could selectively enforce the Ordinance by sometimes using a definition of forty hours and other times using a colloquial understanding, which could be any other amount of time. Furthermore, many doctors do not spend 40 hours a week at their offices. For example, Dr. Romberg, the Citys expert witnesses, testified that he sees patients four and a half days a week and his office is closed on Friday afternoons. (Romberg Dep. 163:1-6.) Working less than 40 hours a week, it is unclear whether this constitutes a full time practice under the Ordinance. F. The 2012 Ordinance violates the Fourteenth Amendments Equal Protection Clause The Equal Protection Clause directs that all persons similarly circumstanced shall be treated alike. Plyler v. Doe, 457 U.S. 202, 216 (1982) (internal quotations omitted). [E]qual protection analysis requires strict scrutiny [of a government regulation] when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class. Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312 (1976); see also Plyler, 457 U.S. at 216217. Rights guaranteed by the First Amendment such
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as the right to freedom of speech and religion are fundamental. Id. (citing Williams v. Rhodes, 393 U.S. 23 (1968); see also W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) (describing the rights to free speech, a free press, freedom of worship and assembly as fundamental rights). The Ordinance treats those that speak on the topic of pregnancy different from those who speak on any other subject by subjecting these speakers to government regulations and criminal sanctions because of the content of their speech. (Stip. 16). Furthermore, because the 2012 Ordinance was specifically drafted to target pro-life centers that do not provide or refer for abortion and comprehensive birth control (Stip. 4), the differing treatment is even more severe. This infringes on Plaintiffs fundamental right to free speech and freedom of religion; the Ordinance is therefore subject to strict scrutiny. In Tepeyac, the court denied Defendant Montgomery County Councils Motion to Dismiss on Plaintiffs Fourteenth Amendment claims. 779 F. Supp. 2d at 469. The court stated that the Fourteenth Amendment claims are entangled with the First Amendment issues and that strict scrutiny would apply to both claims. Id. It is well established that the equal protection clause is violated when the government treats speakers differently on account of their viewpoints. Police Dept of Chicago v. Mosley, 408 U.S. 92, 96-98 (1972) (finding that the equal protection clause does not allow the government to pick and choose among the views it is willing to have discussed and that this amounts to censorship in a most odious form.); Burson v. Freeman, 504 U.S. 191, 197 n.3 (1992) (Content-based restrictions also have been held to raise Fourteenth Amendment equal protection concerns because, in the course of regulating speech, such restrictions differentiate between types of speech.). The Ordinance cannot survive strict scrutiny and is therefore unconstitutional. see Section II.H infra.
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G.
The 2012 Ordinance violates Plaintiffs right to the free exercise of religion Each Center is a religious institution motivated by religious beliefs. (Stip. 33, 36). They
believe that reaching women and families facing unplanned pregnancies is a religious ministry and calling, and an integral component of their religious exercise; the Centers state that all activities [], including non-religious discussions and activities, are motivated by religious beliefs and are part of [each centers] religious exercise. (GPLC, APRC, and SAPRC Response to Def.s Req. for Admis. 28). The Defendant stipulated that the services Plaintiffs provide to their clients are highly dependent on the development of personal relationships with the women they serve (Stip. 27) and that [d]isplaying the sings required by the 2012 Ordinance may deter potential clients who would otherwise hear Plaintiffs religious and other messages. (Stip. 28). The Ordinance substantially burdens the Centers religious exercise for at least three independent reasons. First, the Ordinance mandates the timing and the context in which the Centers discuss their services, 27 topics that are inherently religious in nature for at least one of the Centers.28 Secondly, the Ordinance will deter women from entering the Centers facilities who would otherwise hear their religious and charitable message.29 Lastly, the Ordinance burdens their ministries by compelling them to post messages, including misleading ones, about their services. (Stip. 20). Any government regulation that burdens an individuals free exercise of religion and is !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! neither neutral nor generally applicable is subject to strict scrutiny. Church of Lukumi Babalu
As the OBrien court stated: The dialogue between a limited-service pregnancy center and an expectant mother begins when the client or prospective client enters the waiting room of the center. Contemporaneous with the center's initial communication is the presence of a stark and immediate statement about [their services]. Contrary to Defendants' assertion, the disclaimer indeed alters the course of a center's communications with a client or prospective client about [their services]. 768 F. Supp. 2d at 814. 28 The GPLC strives to provide women with medical referrals to physicians whose practices are in line with the Catholic Churchs teachings on abortion and birth control. Furthermore, the Catholic Church believes that heath care is a right, so ensuring that the GPLC can make medical referrals is very important to its religious exercise. 29 Defendant stipulated that the Ordinance may deter potential clients who would otherwise hear the Centers religious message (Stip. 28).
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Aye v. City of Hialeah, 508 U.S. 520, 53132 (1993). In this case, the Ordinance targets religious institutions, and its legislative history demonstrates hostility towards the religious position against abortion and comprehensive birth control. [I]f the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral. Church of Lukumi Babalu Aye, 508 U.S. at 533. Furthermore, governmental hostility which is masked as well as overt violates the Free Exercise Clause. Church of Lukumi Babalu Aye, 508 U.S. at 534. In Church of Lukumi Babalu Aye, the Supreme Court concluded that the ordinance at issue was not neutral because:
The pattern we have recited discloses animosity to Santeria adherents and their religious practices; the ordinances by their own terms target this religious exercise; the texts of the ordinances were gerrymandered with care to proscribe religious killings of animals but to exclude almost all secular killings; and the ordinances suppress much more religious conduct than is necessary in order to achieve the legitimate ends asserted in their defense.
Church of Lukumi Babalu Aye, 508 U.S. at 542. Likewise, in this case, the Ordinance and its legislative history exhibit animosity towards religious pregnancy centers that offer alternatives to abortion. The Ordinance was drafted to target organizations that do not provide or make references for abortion and comprehensive birth control (Stip. 4) and to exclude organizations that do; although the Ordinances text does not mention religion, this description solely applies to centers that have religious and moral reasons for not promoting these services, evidencing a masked hostility towards religion. Indeed, the OBrien court, when analyzing the definition of a limited service pregnancy center, found that a similar regulation is applicable only to those who will never provide or refer for abortion or birth-control services. Such a qualification limits the application of the Ordinance primarily (if not exclusively) to those with strict moral or religious qualms regarding abortion and birth-control. 768 F. Supp. 2d at 816. In this way, the Ordinance gerrymandered only religious organizations to be subject to speech
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restrictions and criminal penalties, while leaving secular, pro-choice organizations alone.30 This hostility is further supported by the reports used to support the Ordinances passage and statements made during the drafting of the 2010 Ordinance. Both the NARAL and Waxman reports evidence hostility towards the religious viewpoint against abortion. (Stip. Tabs E, F, G; P-4, P-5, P-14). The 2009 NARAL report, inter alia, calls pregnancy centers biased and antichoice, and states that their primary purposeis to advance an ideological, political, and religious agenda. (Stip Tab F; P-4 at 23). It accuses pregnancy centers of having a controversial history and a religious, anti-choice mission such as shar[ing] Gods gift of eternal life through Jesus Christ Id. The Waxman report refers to one centers religious mission in a demeaning manner. (Stip Tab E; P-5 at 1). The 2011 NARAL Report likewise It states that the Alternatives to Abortion Program is wasteful and inefficient because it uses money to purchase materials produced by religious organizations. (Stip. Tab G; P-14 at 2). It goes on to fault pregnancy centers for using literature from such religious organizations and from ordering materials from religious sources such as Loving and Caring, Inc. (whose mission is to pray and work towards keeping the pro-life community holy and seeking the face of God) (Stip. Tab G; P-14 at 6). Even worse, the 2011 NARAL report calls certain religious beliefs false information and scare tactics31 and characterize what pregnancy centers deem spiritual risks supposed risks, (placing risks in quotations to indicate they are not truly risks) (Stip.
As emails from the City reveal, there were discussions about mandating similar disclaimers for pro-choice organizations, but the City ultimately decided to only regulate pro-life facilities (P-30 at 3). 31 The government is forbidden from stating whether any religious beliefs are true or false. Employment Div. v. Smith, 494 U.S. 872, 876-77 (1990) (The government may notlend its power to one or the other side in controversies over religious dogma); United States v. Ballard, 322 U.S. 78, 86 (1944) ("The law knows no heresy, and is committed to the support of no dogma [Under our constitutional scheme, one is] to answer to no man for the verity of his religious views).
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30
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Tab G; P-14 at 7-8).32 City emails further support this hostility. In one email, it was stated I know that together we can facilitate the passing of this initiative and protect the women of Austin from accidentally wandering into a CPC and facing proselytizing (P-30 at 2). The City is not allowed to attempt to protect individuals from hearing religious messages and this email makes clear that preventing women from hearing such messages was one goal. Finally, a City email contained a NARAL document that faulted pregnancy centers for discussing religion. (P-29 at 3). It called pregnancy centers controversial because they told an investigator that, as a result of an abortion, she would have to answer to her relationship with God. Id. This pattern demonstrates that the Ordinance is not neutral, but was crafted at least in part due to hostility towards pro-life, religious ministries. In addition to not being neutral, the Ordinance is likewise not generally applicable. In Church of Lukumi Babalu Aye the Supreme Court found that the regulation at issue was substantially underinclusive when taking into account the governments alleged interest. In the same way, the Ordinance here is substantially underinclusive, pointing to the true motive behind its passage: animus towards the religious viewpoint on abortion and comprehensive birth control. The Defendant publicly stated that the aim of the Ordinance is to increase consumer awareness. (Stip. Tabs Q, R, S; P-6, P-17, P-23). However, in drafting the Ordinance, the Defendant only increases consumer awareness at facilities that discuss pregnancy, and specifically at pro-life pregnancy centers. Other organizations are not required to post any type of disclosure.33 By only !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! stifling the speech of the pro-life centers, it underscores the contention that the ordinances true
When Council Member Spelman was specifically asked about the reports in the Citys 30(b)(6) deposition, he stated that in preparing for the deposition, he went through them and that [t]heres nothing in these which jumped out at me an I said, I think this is wrong. (Spelman Dep. 137:21 138:5). 33 Not to mention that the Ordinance completely defeats the goal of consumer awareness by forcing the Centers to deliver a misleading message about their services (see Section II.A).
32
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goal is infringing on the religious exercise of the centers because of a fundamental disagreement with their viewpoint. The Ordinance is therefore neither neutral nor generally applicable, and is subject to strict scrutiny. H. The 2012 Ordinance fails strict scrutiny Because the Ordinance compels speech, discriminates based on content and viewpoint, contains classifications that impermissibly interfere with the exercise of a fundamental right, and burdens religious exercise in a manner that is neither neutral nor generally applicable, it is only constitutional if it can survive strict scrutiny. See United States v. Playboy Entm't Group, 529 U.S. 803, 813 (2000). Under strict scrutiny review, Defendant carries the burden of proof; it must show that that law is narrowly tailored to further a compelling governmental interest. Id. at 879. Requiring [the government] to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law. City of Boerne v. Flores, 521 U.S. 507, 534 (1997). Defendant cannot meet this high burden. In OBrien, Tepeyac, and Evergreen Association, the courts found that the ordinances at issue were subject to and failed strict scrutiny analysis, and were therefore enjoined. 768 F. Supp. 2d at 817; 779 F. Supp. 2d at 471; 801 F.Supp.2d at 211. 1. Defendant can point to no compelling governmental interest
In order to show a compelling governmental interest, [i]t is not enough that the goals of the law be legitimate, or reasonable, or even praiseworthy. There must be some pressing public necessity, some essential value that has to be preserved. Turner Broad. Sys. v. FCC, 512 U.S. 622, 680 (1994). Defendant states that the Ordinance is a consumer awareness measure to ensure that women are informed about the range of services offered by pregnancy centers. (Stip. Tab Q; P-6); See also Def. Objections and Answers to Pls. Interrog. No. 3. (The City adopted the [2010] Ordinance and the [2012] Ordinance in order to alert potential clients of Plaintiffs Roman Catholic Diocese, et al. Opening Trial Brief 40
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limited service pregnancy centers that the centers do not provide a full range of legal pregnancyrelated services.). However, the Ordinance requires the Centers to post misleading messages, which makes women less informed about pregnancy centers services and licensing. The Ordinance is so poorly drafted that it defeats Defendants stated interest. Furthermore, even if the Ordinance did help to further consumer awareness, this is certainly not an interest of the highest order. see Church of Lukumi Babalu Aye, 508 U.S. at 546. Increasing consumer awareness may be a legitimate interest, but it is certainly not an interest of the highest order, see Church of Lukumi Babalu Aye, 508 U.S. at 546. Additionally, this interest pales in comparison with the First Amendments guarantee of freedom of mind. "[W]here the State's interest is to disseminate an ideology, no matter how acceptable to some, such interest cannot outweigh an individual's First Amendment right to avoid becoming the courier for such message." Wooley v. Maynard, 430 U.S. 705, 714 (1977). If the City were truly interested in furthering consumer awareness related to services and licensing, it would require facilities that discuss subjects besides pregnancy to post disclosures. Because the Ordinance only targets pregnancy centers, the Defendant undercuts any assertion that its interest is compelling. It is established in [] strict scrutiny jurisprudence that a law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited. Lukumi, 508 U.S. at 547 (internal quotations omitted). 2. The Ordinance cannot be justified based on post-hoc evidence because it is content-discriminatory on its face
Because the ordinance is content-discriminatory, post-hoc justifications cannot be considered. OBrien v. Mayor and City Council of Baltimore, 768 F. Supp. 2d 804, 810 (Defendants may not, however, use discovery in an attempt to generate justifications for the Ordinance following its enactment. The Court must base its decision on the evidence relied
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upon by the Baltimore City Council at the time the Ordinance was passed.). Even under intermediate scrutiny, the governments justification may not be invented post-hoc in response to litigation. U.S. v. Virginia, 518 U.S. 515, 533 (1996). Almost all of Defendants proposed justifications for the Ordinance, however, were developed after the Ordinance was enacted and are thus post-hoc. Defendant has put forth an expert witness, Dr. Romberg, to discuss the need for the Ordinance, but that witnesss opinions were not considered when Defendant was enacting the Ordinance (Spelman Dep. 74:1676:9). There is no evidence in the record that any of the Plaintiffs, or any PRC in the City of Austin, have been deceptive or misleading. Defendant did not investigate Plaintiffs or any other PRC in Austin (Spelman Dep. 25:1317, 25:1821, 26:35, 38:1025, 39:111, 80:613, 151:20 152:15, 152:1621, 152:22153:2). Defendant was unaware of any complaints against any PRC in the City of Austin (Spelman Dep. 50:26, 55:511, 55:1556:4, 94:1925, 133:59, 133:21 24). In enacting the Ordinance, Defendant relied only upon the written record, which consisted of Waxman report and the TARAL follow-up (Spelman Dep. 29:2430:5, 34:1335:1, 36:19 37:8, 37:1519, 38:725), neither of which referred to any PRC in the City of Austin (Spelman Dep. 55:2156:4, 57:1216, 57:1925). Defendants evidence is hypothetical at best, and to prove a compelling interest, Defendant must "demonstrate that the harms are real, not merely conjectural, and that the [Ordinance] will in fact alleviate these harms in a direct and material way." Tepeyac, 779 F. Supp. 2d at 468 (citing Turner Broad., 512 U.S. at 664). See also Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 311 (1984). A mere apprehension of difficulties cannot overcome the right to free expression. See United States v. Grace, 461 U.S. 171, 182 (1983); Tinker v. Des Moines School Dist., 393 U.S., at 508. Because Defendant had no evidence of any of the harms that the Ordinance seeks to alleviate occurring in the City of Austin,
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Defendants cannot show any real harm, only conjectural. 3. The Ordinance is not the least restrictive means of furthering any interest
A statute is narrowly tailored if it targets and eliminates no more than the exact source of the evil it seeks to remedy. Frisby v. Schultz, 487 U.S. 474, 485 (1988). "If a less restrictive alternative would serve the Government's purpose, the [government] must use that alternative." Playboy Entm't Grp., Inc., 529 U.S. at 813. In addition to not furthering a compelling governmental interest, the Ordinance is both over and under inclusive, and therefore not narrowly tailored. If the harm to be addressed is lack of consumer awareness, the City could engage in its own speech by launching a public awareness campaign instead of compelling the Centers to post a misleading message at their entrances. These methods were found to be less restrictive than regulations compelling pregnancy centers to post a government message in the Evergreen and Tepeyac decisions. Evergreen, 801 F.Supp.2d at 208-09; Tepeyac, 779 F. Supp. 2d at 469 n.9. The Citys currently speaks on the topic of pregnancy. Specifically, the Citys Health and Human Services website instructs women to get a pregnancy test. Call 2-1-1 to find free or lowcost locations. (P-75) As stated above, 2-1-1 refers women to both pregnancy centers and abortion providers. As the City testified, it could deliver its message about pregnancy centers on its website before it makes the referral (Spelman Dep. 92:23-93:25, 159:9-161:12). The City further testified that it discussed delivering its message through a public education campaign, posting a sign on public property, and directing the City Manger to educate the public. Although all of these options were discussed and available to the City, it took none of these actions and instead compelled the pregnancy centers to post the disclaimers (Spel. Dep. 91:15-92:22). A government entity has the right to speak for itself" but that the [t]he Free Speech Clause restricts government regulation of private speech. Summum, 555 U.S. at 467 (2009) (internal Plaintiffs Roman Catholic Diocese, et al. Opening Trial Brief 43
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quotations omitted).! Additionally, the City stipulated that there is no requirement of a finding that an unlicensed pregnancy service center has committed any wrongdoing to be regulated by the 2012 Ordinance (Stip. 18). If the alleged harm is preventing the misrepresentation of services offered, the Ordinance is overinclusive in that it subjects both centers that engage in deceptive practices and those that accurately represent their services to the disclaimer. As the OBrien court found:
By no means is the disclaimer requirement the least restrictive means of combating false advertising. Defendants claim that in passing the Ordinance, they seek only to mitigate the impact of deceptive advertising. Yet the Ordinance does not provide a carve-out provision for those limited-service pregnancy centers which do not engage in any deceptive practices. The disclaimer requirement is imposed irrespective of how forthcoming and transparent a pregnancy center presents itself.
O'Brien, 768 F. Supp. 2d at 810. The Ordinance not only lacks a carve-out provision, but is supported by no evidence that any of the Centers have misrepresented the services they offer.34 The City testified that having a licensed health care provider would make the city reasonably certain that accurate information is given. (Spelman Depo. 84;12-17). However, this is a bad assumption. If a Center has a full-time licensed medical professional on site, and this individual provides false information from the City of Austins perspective, the disclaimer is not required. However, if no medical professional is present, but all of the information given is true information, the Ordinance is still required. Furthermore, the Ordinance is both over and under inclusive because it only applies to organizations that do not have a health care provider who maintains a full time practice on site. As the City stipulated, if an organization has a health care provider who supervises all medical !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
34
Additionally, the OBrien and Evergreen Association decisions found that the government could modify or apply existing anti-fraud laws to only target pregnancy centers that actually engage in deceptive practices. O'Brien, 768 F. Supp. 2d at 817; Evergreen Assn, 801 F.Supp.2d at 209; see also Riley v. Nat'l Fed'n of Blind, 487 U.S. 781, 800 (1988) (finding that enforcing anti-fraud regulations is a less restrictive way of combating misperception than a compelled disclosure).
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services, but is only on site part time, the disclaimer is still required (Stip. 17) (emphases added). However, an organization that has a heath care provider with a full-time practice on site, but supervises none of the medical services does not need to post the disclaimer. This illogical result demonstrates that the ordinance is not narrowly tailored. Because the Ordinance cannot achieve any governmental interest by the least restrictive means, it fails strict scrutiny and is unconstitutional. I. The Ordinance cannot survive lower forms of judicial scrutiny, including rational basis review The Ordinance is so suspect that it cannot even pass muster under the lowest level of judicial review: rational basis. In order to survive rational basis review, the government regulation only needs to show a rational relationship to legitimate state interests. Romer v. Evans, 517 U.S. 620 (1996). Courts employ this basic judicial review to ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law. Romer, 517 U.S. at 633. In this case, the Defendant can point to no legitimate state interest. As stated in Section II.H.1 supra, the government has no legitimate interest in compelling a pregnancy center to post a misleading message at its entrance. Because there is no legitimate interest in doing so, the Ordinance fails rational basis review. Furthermore, as outlined in Section II.G supra, the Ordinances passage was motivated by animus towards the religious and pro-life viewpoint. The Ordinance was unlawfully drawn for the purpose of disadvantaging the [pregnancy centers] burdened by the law. Romer, 517 U.S. at 633; citing Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 181 (1980) (Stevens, J., concurring) ("If the adverse impact on the disfavored class is an apparent aim of the legislature, its impartiality would be suspect"). In addition to gerrymandering the regulation to only disadvantaging the politically-unpopular pregnancy centers, the evidence Defendant cites to support passage of the Ordinance exhibits
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hostility toward the religious and pro-life viewpoint of pregnancy centers. If the constitutional conception of equal protection of the laws means anything, it must at the very least mean that a baredesire to harm a politically unpopular group cannot constitute a legitimate governmental interest. Romer, 517 U.S. at 634635 (1996) (citing Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973) (emphasis added). J. The 2012 Ordinance violates of the right to free speech under article 1, section 8, and the right to freedom of religion under article I, section 6 of the Texas Constitution As outlined in Sections II.A, II.B, and II.E.1 supra, the Ordinance violates the Centers free speech rights under the United States Constitution because it compels speech, discriminates on the basis of content and viewpoint, and is substantially overbroad. Article I, section 8 of the Texas Constitution likewise protects the freedom of speech.35 The free speech clause in the First Amendment of United States Constitution provides a floor of minimum protections to which the Texas Courts must adhere when interpreting the Texas guarantee of free speech. Davenport v. Garcia, 834 S.W.2d 4, 15 (Tex. 1992) (stating that [t]he only limit on the states is that, in relying on their constitutions, they may not deny individuals the minimum level of protection mandated by the Federal Constitution and describing the First Amendment as a federal safety net). Additionally, Texas Courts are at liberty to interpret their own constitutional provisions as providing greater protections than those afforded under the U.S. Constitution. Davenport, 835 S.W.2d at 14. In regards to the Texas Constitutions guarantee of free speech, Texas Supreme Court decisions have recognized that in some aspects our free speech provision is broader than !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
35
The provision relevant to free speech reads: Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. Tex. Const. art I, 8.
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the First Amendment. Davenport, 834 S.W.2d at 8. In Davenport, the Texas Supreme Court adopt[ed] a test recognizing that article one, section eight of the Texas Constitution provides greater rights of free expression than its federal equivalent. Id. at 10; see also OQuinn v. State Bar of Texas, 763 S.W.2d 397, 402 (Tex. 1988); Ex parte Tucci, 859 S.W.2d 1, 5 (Tex. 1993) (With its broad command that every person shall be at liberty to speak opinions on any subject, article one, section eight provides greater rights of free expression than its federal equivalent. (internal cites and quotes omitted)). Although this greater protection for the freedom of speech is most defined in the area of prior restraints, the United States Supreme Court has noted that compelled speech and compelled silence are two forms of the same evil; therefore, the difference is without constitutional significance. See e.g., Riley, 487 U.S. at 796-797 (There is certainly some difference between compelled speech and compelled silence, but in the context of protected speech, the difference is without constitutional significance, for the First Amendment guarantees freedom of speech, a term necessarily comprising the decision of both what to say and what not to say.); Pacific Gas & Electric Co. v. Public Utilities Com., 475 U.S. 1, 11 (1986) ("'The essential thrust of the First Amendment is to prohibit improper restraints on the voluntary public expression of ideas. . . . There is necessarily . . . a concomitant freedom not to speak publicly, one which serves the same ultimate end as freedom of speech in its affirmative aspect.'") (internal quotations and citations omitted). The Ordinance therefore violates the right to free speech under the Texas Constitution pursuant to either the same level of free speech protections as the First Amendment of the U.S. Constitution, or additional free speech protections granted under the Texas Constitution. As set forth in Section II.G supra, the 2012 Ordinance violates Plaintiffs free exercise of
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religion. Because Article I, Section 6 of the Texas Constitution36 provides at least the same protections for freedom of religion as the federal constitution because of the federal safety net, see Davenport, 834 S.W.2d at 15; see also
Tilton v. Marshall, 925 S.W.2d 672, 677 n.6 (Tex. 1996). The Ordinance therefore violates the Texas Constitutions guarantee of religious freedom. K. The 20121 Ordinance violates Texas Religious Freedom Restoration Act The Ordinance substantially burdens Plaintiffs free exercise of religion in violation of the Texas Religious Freedom Restoration Act (TRFRA). As outlined in Section II.G supra, the Ordinance mandates the timing and context in which they speak about the their servicesa subjects of great religious significance to at least one of the Centers, deters women from entering the Centers that would otherwise hear their religious message, and forces the Centers to post a misleading message about their services and licensing. A burden under TRFRA is substantial if it is real vs. merely perceived, and significant vs. trivial. Merced v. Kasson, 577 F.3d 578, 588 (5th Cir. 2009) (quoting Barr v. City of Sinton, 295 S.W.3d 287, 301 (Tex. 2009)); A.A. v. Needville Indep. Sch. Dist., 611 F.3d 248, 264 (5th Cir. 2010). The burdens on the Centers religious exercise are real and significant because they fundamentally alter their speech and turn individuals away from their ministries who would otherwise hear their religious messages. Once Plaintiffs demonstrate that the government regulation substantially burdens their religious exercise, the burden shifts to the Defendant to show that the regulation is the least !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
36
restrictive means of achieving a compelling interest. A.A. v. Needville Indep. Sch. Dist., 611 F.3d
Article 1, Section 8 of the Texas Constitution provides: All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the Legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship.
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248, 266 (5th Cir. 2010). As outlined in Section II.H supra, the government cannot meet this high burden. The Ordinance therefore violates TRFRA. III. CONCLUSION WHEREFORE, Plaintiffs respectfully request the Court grant the following relief: i. A permanent injunction enjoining Defendant, its agents, employees and all other persons acting in concert or participating with it, or any of them from enforcing the 2012 Ordinance or any subsequent version of the 2012 Ordinance; ii. A declaration that the 2012 Ordinance violates federal and state law; iii. An award of nominal damages for the violation of Plaintiffs rights; iv. An award of costs and attorneys fees pursuant but not limited to 42 U.S.C. 1988 and Tex. Civ. Prac. & Rem. Code 110.005(a)(4); and v. Any further relief this Court deems just and proper. Dated this 29th day of March, 2012. Respectfully submitted, /s/ David S. Lill DAVID S. LILL Texas Bar No. 12352500 Bowman and Brooke, LLP 600 Congress Avenue, Suite 1400 Austin, TX 78701 Telephone: (512) 874-3822 Fax: (512) 874-3801 Email: david.lill@bowmanandbrooke.com Raul A. Gonzalez Texas Bar No. 00000032 Law Office of Raul A. Gonzalez 10511 River Plantation Drive Austin, Texas 78747 Telephone: (512) 280-1002 Fax: (512) 292-4513 Email: rgonzalezlaw@aol.com Plaintiffs Roman Catholic Diocese, et al. Opening Trial Brief 49
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Jeffrey C. Mateer Texas Bar No. 13185320 Hiram S. Sasser III Texas Bar No. 24039157 Erin E. Leu Texas Bar No. 24070138 Liberty Institute 2001 Plano Parkway, Suite 1600 Plano, Texas 75075 Telephone: (972) 941-4444 Fax: (972) 941-4457 Email: jmateer@libertyinstitute.org Counsel for Plaintiffs
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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was electronically served through the Courts CM/ECF system, or otherwise mailed via First Class Mail, on this 29th day of March, 2012, to the following parties or attorneys of record: Samuel B. Casey David Bartholomew Waxman JUBILEE CAMPAIGN LAW OF LIFE PROJECT 801 G. Street, N.W., Suite 521 Washington, D.C. 20001 Telephone: (202) 586-5652 Fax: (703) 349-7323 sbcasey@lawoflifeproject.org dbwaxman@lawoflifeproject.org Gregory R. Terra Stephen D. Casey TEXAS CENTER FOR DEFENSE OF LIFE 501 South Austin Avenue, Suite 1130 Georgetown, Texas 78626 Telephone: (512) 763-9068 Fax: (512) 692-2878 greg@tcdl.org stephen@tcdl.org Matthew S. Bowman ALLIANCE DEFENSE FUND 801 G. Street, N.W., Suite 509 Washington, D.C. 20001 Telephone: (202) 393-8690 Fax: 202-347-3622 mbowman@telladf.org Professor Mark L. Rienzi COLUMBUS SCHOOL OF LAW THE CATHOLIC UNIV. OF AMERICA 620 Michigan Avenue, N.E. Washington, D.C. 20064 Telephone: (202) 319-4979 Counsel for Plaintiff Austin LifeCare Inc. /s/ Jeffrey C. Mateer Jeffrey C. Mateer Casey L. Dobson Sara Wilder Clark Scott, Douglass & McConnico, LLP 600 Congress Avenue Suite 1500 Austin, TX 78701 (512) 495-6300 Fax: 512/474-0731 Email: cdobson@scottdoug.com Email: sclark@scottdoug.com Alice London Bishop London & Dodds PC 3701 Bee Cave Road Suite 200 Austin, TX 78746 (512) 479-5900 Fax: (512) 479-5934 Email: alondon@bishoplondon.com Karen M. Kennard City of Austin Law Department PO Box 1088 Austin, TX 78767-1088 (512) 974-2268 Email: karen.kennard@ci.austin.tx.us Tanya E. Wilder Law Office of Tanya E. Wilder P.O. Box 309 Manor, TX 78653 281-798-2956 Email: tanyaewilder@gmail.com Counsel for Defendant
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Case 1:11-cv-00875-LY Document 88

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CIVIL ACTION NO. A-11-CA-00875-LY

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Plaintiffs Roman Catholic Diocese, et al. Opening Trial Brief

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repeal of the ordinance to avoid further litigation costs.

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Plaintiffs Roman Catholic Diocese, et al. Opening Trial Brief