EVERGREEN ASS'N, INC. v. City of New York
801 F. Supp. 2d 197
S.D.N.Y.2011Background
- Local Law 17 requires pregnancy services centers to disclose that counsel should consult a licensed medical provider, presence of licensed providers, and abortion/EC/prenatal referrals.
- A facility is a pregnancy services center if its primary purpose is to serve pregnant women and it appears like a licensed medical facility based on enumerated factors.
- Enumerated factors include ultrasound/diagnosis, medical staff attire, examination tables, private rooms with medical supplies, insurance data collection, or sharing premises with a licensed provider.
- Two or more factors create prima facie evidence that a facility appears to be a licensed medical facility; there are exemptions for state/federal licensed medical facilities or those with a licensed provider on-site.
- Disclosures must be in writing (English/Spanish) at conspicuous signs and orally upon request for abortion, emergency contraception, or prenatal care; penalties include fines and possible sealings.
- Plaintiffs operate NYC centers offering pregnancy testing, ultrasounds, counseling, and related services; none provide abortions or emergency contraception; they challenge Local Law 17 as unconstitutional.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appropriate scrutiny level | Strict scrutiny applies because compelled speech is content/viewpoint-based. | Commercial speech with factual disclosures; intermediate scrutiny applies. | Strict scrutiny applied |
| Likelihood of success on the merits with strict scrutiny | Disclosures violate strict scrutiny by compelling speech and being overbroad. | Disclosures serve a compelling interest in preventing deception; narrowly tailored. | Law not narrowly tailored; prelim injunction granted |
| Narrow tailoring and alternatives | Less restrictive options exist (public notices, antifraud enforcement). | Disclosures necessary to prevent deception; alternatives not sufficient. | Overbreadth and alternatives show not narrowly tailored |
| Vagueness and enforcement risk | Definition of 'pregnancy services center' with nonexclusive factors permits arbitrary enforcement. | Guidance exists within enumerated factors; reasonable application. | Vagueness concerns established; enjoin entire law |
| Irreparable harm if law takes effect | Loss of First Amendment rights is irreparable injury. | Injunctive relief not necessary absent immediate harm. | Irreparable harm shown; injunction granted |
Key Cases Cited
- Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622 (1994) (strict scrutiny for government-mandated speech)
- Elrod v. Burns, 427 U.S. 347 (1976) (First Amendment irreparable injury from speech restrictions)
- Bronx Household of Faith v. Bd. of Educ. of City of N.Y., 331 F.3d 342 (2d Cir. 2003) (presumption of irreparable harm varies by directness to speech)
- Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557 (1980) (commercial speech analysis and intermediate scrutiny framework)
- Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983) (definition of commercial speech)
- Snyder v. Phelps, 131 S. Ct. 1207 (2011) (speech on public issues enjoys high protection)
- Riley v. Nat'l Federation of the Blind of N.C., Inc., 487 U.S. 781 (1988) (government not allowed to compel belief; commercial/noncommercial distinctions)
- Frisby v. Schultz, 487 U.S. 474 (1988) (speech regulations must narrowly tailor to avoid suppressing message)
- Tepeyac v. Montgomery County, 779 F. Supp. 2d 456 (D. Md. 2011) (case law on advertising disclosures and noncommercial speech)