Tepeyac v. Montgomery County
2011 U.S. Dist. LEXIS 26532
D. Maryland2011Background
- Montgomery County Council enacted Resolution 16-1252 requiring limited service pregnancy resource centers to post specific disclaimers in waiting rooms, including lack of licensed medical staff and a health-provider advisory; defines LSPRC by primary purpose, lack of licensed medical professional on staff, and provision of information for a fee or free.
- The Resolution requires a conspicuous English/Spanish sign stating no licensed medical professional on staff and urging consultation with a licensed health care provider; violation is a Class A civil violation enforceable by county actions.
- Centro Tepeyac, a Montgomery County nonprofit, provides free pregnancy-related services and information, identifies itself as an LSPRC, and does not perform abortions or charge for services.
- Plaintiff filed a 42 U.S.C. § 1983 action alleging First and Fourteenth Amendment violations; sought a preliminary injunction.
- Defendants moved to strike footnotes in opposition, and moved to dismiss or for summary judgment; Plaintiff sought preliminary relief.
- The court allowed, denied in part, and found severability likely, with only certain parts of the Resolution enjoined on preliminary relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Department of Health and Human Services is a proper defendant | Centro Tepeyac asserts claims against county entities; DHHS is a county agency, proper against the county. | DHHS is not a separate legal entity subject to suit; only county and council remain. | DHHS dismissed as not a separate legal entity. |
| Whether the Resolution violates First Amendment by compelling speech | Resolution compels speech and is not narrowly tailored; violates free speech rights. | Disclosures are permissible factual disclosures; may be tailored to public health interest. | Complaint states a likely First Amendment violation; strict scrutiny applies. |
| What level of scrutiny applies to the compelled disclosures | Professional or non-commercial speech may receive lesser scrutiny; not clearly professional speech here. | Disclosures may fall under commercial or professional contexts warranting lesser scrutiny. | Strict scrutiny applies because the Resolution does not fit commercial or narrow professional speech categories. |
| Whether the second portion of the disclaimer is narrowly tailored | Second part inadequately tailored to serve a compelling government interest. | Second portion reasonably furthers the interest in public health. | Second portion not narrowly tailored; enjoined only the specific language about seeing a licensed provider. |
| Whether the Fourteenth Amendment claims should be dismissed or addressed with First Amendment overlap | Equal protection/due process intertwined with First Amendment claims; merits should be considered. | Rational basis review argued; no separate merit without full briefing. | Claims are intertwined; cannot dismiss without full briefing; proceed with First Amendment analysis for related claims. |
Key Cases Cited
- Wooley v. Maynard, 430 U.S. 705 (1977) (right to refrain from speaking; compelled speech concerns)
- Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781 (1988) (compelled disclosures and level of scrutiny in non-commercial contexts)
- Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) (content-based triggers and strict scrutiny in broadcasting regulation)
- Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985) (restraint in commercial speech and compelled disclosures for factual information)
- Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) (professional speech context and physician disclosures within medical regulation)
- Hurley v. Irish-American Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557 (1995) (speech rights and prohibition on compelled endorsements)
- O'Brien v. Mayor & City Council of Baltimore, no official reporter cited in opinion (D. Md. 2011) (2011) (Baltimore ordinance on disclosures discussed for context (not controlling authority))
- Park v. Bd. of Liquor License Comm'rs for Baltimore City, 338 Md. 366 (1995) ( Maryland severability and legislative intent considerations)