San Francisco Allowed to Prohibit Anti-Abortion Medical Clinics from Making False or Misleading Statements

A medical clinic in San Francisco called “First Resort” provided free, pregnancy-related medical services. It was an example of a so-called “crisis pregnancy center.” It was a pro-life non-profit, dedicated to building “an abortion-free world.” Thus, First Resort did not provide abortion services to its patients, nor would it refer its patients to a facility that would.

The now-closed offices of First Resort. (Lacy Atkins/The Chronicle)

So far so good. Where First Resort got into hot water with the city of San Francisco was over its advertising. First Resort’s website offered information about abortion procedures and costs on its ‘Abortion Procedures’ page. The website did not, however, mention that First Resort did not perform abortions or referrals for them. The website also did not mention First Resort’s anti-abortion stance; its advertising was “unbiased and neutral.” (Note: we were unable to find First Resort’s website circa 2011. If you have any leads, let us know.)

In August 2011, the City Attorney asked First Resort to correct their advertising because he had serious “concerns” about First Resort’s advertising–he thought it was misleading. Two months later, the city counsel voted on an ordinance prohibiting facilities that do not give abortion referrals from making false or misleading statements to the public about pregnancy-related services that those facilities provide. (Okay, that was a long sentence. To sum up: if you don’t do abortions, and you don’t tell people where to get abortions, you can’t mislead the public about what in fact you do do.) The ordinance passed 10-1, with the one member who voted against it saying that the ordinance’s proponents were intentionally targeting First Resort.

Well First Resort promptly sued, arguing that the ordinance violates their free-speech rights. They lost. The Ninth Circuit ruled for San Francisco. The court held that the ordinance permissibly regulated commercial speech and did not discriminate based on viewpoint.

San Francisco is not alone. Other cities and states have passed similar laws and are facing lawsuits, and Google is taking its own actions. Don’t expect this post to be the last on lawsuits involving crisis pregnancy centers and the First Amendment.

Case: First Resort, Inc. v. Herrera, No. 15-15434 (9th Cir. June 27, 2017) (opinion here)

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