Austin Life Care Trial Brief

Case 1:11-cv-00875-LY Document 90
Filed 03/30/12 Page 1 of 57
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION Plaintiff, v. CITY OF AUSTIN, Defendant. ___________________________________ AUSTIN LIFECARE, INC., ROMAN CATHOLIC DIOCESE OF AUSTIN, CATHOLIC CHARITIES OF CENTRAL TEXAS, AUSTIN PREGNANCY RESOURCE CENTER, AND SOUTH AUSTIN PREGNANCY RESOURCE CENTER,
CIVIL ACTION NO. A-11-CA-00875-LY
PLAINTIFF AUSTIN LIFECARES OPENING TRIAL BRIEF Matthew S. Bowman D.C. Bar No. 993261 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
Samuel B. Casey, Cal. Bar No. 76022 David Bart Waxman TX Bar No. 24070817 JUBILEE CAMPAIGNLAW 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 Counsel for Plaintiff Austin LifeCare, Inc.
OF COUNSEL: Professor Mark L. Rienzi D.C. Bar No. 494336 COLUMBUS SCHOOL OF LAW THE CATHOLIC UNIV. OF AMERICA 620 Michigan Avenue, N.E. Washington, D.C. 20064 Telephone: (202) 319-4979 mreinzi@law.edu
TABLE OF CONTENTS
Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii AUSTIN LIFECARE WITNESS LIST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Direct Witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Adverse Witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Rebuttal Witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ESTIMATED LENGTH OF TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 PROPOSED FINDINGS OF FACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 AGREED UPON FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Plaintiff Austin LifeCare (LifeCare) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 The 2010 and 2012 Ordinances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 The Lawsuit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 FACTS TO BE PROVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13 The reasons for the ordinance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13 Development/ Draft of Ordinance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 2012 Ordinance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21 LifeCare . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23 The Unconstutional Signage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
PLAINTIFF AUSTIN LIFE CARES OPENING TRIAL BRIEF
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PROPOSED CONCLUSIONS OF LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 The Ordinance Violates Freedom of Speech . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
The Ordinance Is Subject to Strict Scrutiny Because it Compels Speech . . . . . . . . 29 The Ordinance Is Subject to Strict Scrutiny Because It Discriminates on the Basis of Viewpoint and Content . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 The Ordinance Utterly Fails Strict Scrutiny . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 The Ordinance Advances No Compelling Interest . . . . . . . . . . . . . . . . . . . . . 35 The Ordinance is Not Narrowly Tailored to Advance Any Interest . . . . . . .38 The Ordinance violates the Freedom of Religion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 The Ordinance violates the Freedom of Association . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44 The Ordinance violates the 14th Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44 The Ordinance violates Equal Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44 The Ordinance is Unconstitutionally Vague . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Relief sought . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Permanent Injunction and Repeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Nominal Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49 Costs and Reasonable Attorneys Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50
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TABLE OF AUTHORITIES
Spelman Deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 13-22 Pam Coburn Deposition Stipulated Facts LifeCares Amended Verified Complaint Defendants Answer to LifeCares Amended Verified Complaint CASES Adarand Constructors, Inc. v. Slater, 228 F.3d 1147, 1166 (10th Cir. 2000) . . . . . . . . . . . . . . . 38 Brown v. Entmt Merchs. Assn, 131 S. Ct. 2729, 2738 (June 27, 2011) . . . . . . . . . . . . .34, 36, 37 Cal. Democratic Party v. Jones, 530 U.S. 567, 584 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35 Centro Tepeyac v. Montgomery County, 779 F. Supp. 2d 456 (D. Md. 2011) . . . . . . . . . . . . . . .29 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35, 38, 42, 43 Christian Legal Soc. Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 130 S. Ct. 2971, 3009 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33 City of Boerne v. Flores, 521 U.S. 507, 534, (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 39, 42 City of Ladue v. Gilleo, 512 U.S. 43, 51 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35 Consol. Edison Co. of N.Y. v. Public Serv. Commn of N.Y., 447 U.S. 530, 543 (1980) . . . 34, 38 Diaz v. Collins, 872 F. Supp. 353, 357 (E.D. Tex. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43 Eclipse Enters., Inc. v. Gulotta, 134 F.3d 63, 67 (2d Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . 38 Employment Division v. Smith, 494 U.S. 872 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42, 43 Evergreen Assn v. City of New York, Nos. 801 F. Supp. 2d 197 (S.D.N.Y. 2011) . . . . . . . . . . .29 F.C.C. v. League of Women Voters of Cal., 468 U.S. 364, 396 (1984) . . . . . . . . . . . . . . . . . . . . 35
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First Natl Bank of Boston v. Bellotti, 435 U.S. 765, 793 (1978) . . . . . . . . . . . . . . . . . . . . . 35, 36 Fla. Star v. B.J.F., 491 U.S. 524, 540 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Frisby v. Schultz, 487 U.S. 474, 485 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 43738 (2006) . . 38 Liquormart, Inc. v. R.I., 517 U.S. 484, 507-08 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40 McIntyre v. Ohio Elections Commn, 514 U.S. 334, 350, 357 (1995) . . . . . . . . . . . . . . . . . . . . . 40 Merced v. Kasson, 577 F.3d 578, 594 (5th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 42 O'Brien v. Mayor and City Council of Baltimore, 768 F. Supp. 2d 804 (D. Md. 2011) . . . . 29, 34 Pac. Gas & Elec. Co. v. Pub. Utils. Commn of Cal., 475 U.S. 1, 11 (1986) . . . . . . . . . . . . . . . 30 Pleasant Grove City, Utah v. Summum, 129 S. Ct. 1125, 1132 (2009) . . . . . . . . . . . . . . . . . . . . 33 Perry Educ. Assn v. Perry Local Educators Assn, 460 U.S. 37, 46 (1983) . . . . . . . . . . . . . . . 33 Police Dept. of City of Chicago v. Mosley, 408 U.S. 92, 95 (1972) . . . . . . . . . . . . . . . . . . . . . . .33 R.A.V. v. City of St. Paul, 505 U.S. 377, 386, 391 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Reynolds v. Sims, 377 U.S. 533, 565 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Riley, 487 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 40, 41 Rosenberger v. Rectors and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995) . . . . . . . . . 32, 33 Rothe Development Corp. v. Dept of Defense, 545 F.3d 1023, 1048 (Fed. Cir. 2008) . . . . . . . .38 Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991) 33 Sorrell v. IMS Health, 564 U.S. __,131 S. Ct. 2653, 2667 (2011) . . . . . . . . . . . . . . . . . 30, 33, 35 Sherbert v. Verner, 374 U.S. 398, 406 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Thomas v. Collins, 323 U.S. 516, 530 (1945). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Turner Broad. Sys., Inc. v. F.C.C. (Turner I), 512 U.S. 624, 642 (1994) . . . . . . . .30, 33, 34, 38 U.S. v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000) . . . . . . . . . . . . . . 34, 39, 41
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Video Software Dealers Assn v. Schwarzenegger, 556 F.3d 950, 965 (9th Cir. 2009) . . . . . . . 40 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). . . . . . . . . . . . . . . . . . . . . . . . . 30 Ward v. Polite, Nos. 10-2100/2145, slip op. at 19 (6th Cir. Jan. 27, 2012) . . . . . . . . . . . . . . . . . 38 Wisconsin v. Yoder, 406 U.S. 205, 214 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Wooley v. Maynard, 430 U.S. 705, 714 (1977)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 29, 30, 34
STATUTES AND COURT RULES Local Court Rule CV-16(e)(5)(8) and (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 Texas Religious Freedom Restoration Act (Tex. Civ. Prac. & Rem. Code 110.001 (2000)) . . 42
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TO THE HONORABLE UNITED STATES DISTRICT JUDGE LEE YEAKEL: Pursuant to Local Court Rule CV-16(e)(5)(8) and (10), as well as the Courts March 14, 2012 Amended Scheduling Order (Document 41), Plaintiff AUSTIN LIFECARE (LifeCare) hereby files its Opening Trial Brief setting forth its trial witness list, estimate of probable length of trial, proposed findings of fact and conclusions of law. 1 I. AUSTIN LIFECARE WITNESS LIST A. Direct Witness 1. Pam Cobern, Executive Director AUSTIN LIFECARE 1215 W. Anderson Lane Austin, TX 78757 Telephone: 512-374-0626
B.
Adverse Witness 2. Bill Spelman, Councilman City of Austin 2001 E. 5th Street Austin, Texas 78702 Telephone: 512-
C.
Rebuttal Witness 3. Dr. John Thorp, M.D. FACOG 2
LIFECARE, along with the plaintiffs Roman Catholic Diocese of Austin, Catholic Charities of Central Texas, Austin Pregnancy Resource Center and South Austin Pregnancy Resource Center (RCOA et al.) in the related action consolidated for trial in this case, have separately filed its PLAINTIFFS JOINT FINAL LIST OF PLAINTIFFS TRIAL EXHIBITS (Document 78), CONSOLIDATED STIPULATION OF UNDISPUTED FACTS (Document 46) and SUPPLEMENTAL JOINT SUBMISSION OF UNDISPUTED FACTS (Document ).
2
As was also the case for defendants designated expert witness, Dr. Romberg, whose trial deposition, as noticed by defendants, was taken in his offices on March 23, for use at trial because of his unavailability at trial, Dr. Thorp is also unavailable for trial. Therefore, pursuant to Paragraph 4 of the AMENDED SCHEDULING ORDER (Document 41), unless plaintiffs pending motion (Document 79 ) to exclude Dr. Rombergs testimony pursuant to the Federal Rules of Evidence, Rule 702, is granted before that time, plaintiff ALC, solely for rebuttal purposes, intends to timely notice, videotape and transcribe the trial deposition of Dr. John Thorp at the Law Offices of Gibson, Dunn & Crutcher, 1050 Connecticut Avenue, N.W., Washington, D.C. on Monday, April 1, 2012, commencing at 6:00 p.m., CDT, which is the only time Dr. Thorp is available to provide his trial testimony rebutting the proposed trial testimony of Dr. Romberg.
UNIVERSITY OF NORTH CAROLINA Department of Epidemiology School of Public Health Department of Obstetrics & Gynecology 3027 Old Clinic Building CB#7570 Chapel Hill, North Carolina Telephone: 919-843-7851
II. ESTIMATED LENGTH OF TRIAL Subject to the parties agreement to additional stipulations of fact and the time for crossexamination of Lifecares above-listed witnesses not taking longer than expected, LifeCare estimates that it can complete the presentation of its case within one (1) trial day. III. PROPOSED FINDINGS OF FACT Based upon the parties verified pleadings in this action (Documents 30 and 42), verified answers to written interrogatories, responses to requests for admission, the parties
CONSOLIDATED STIPULATION OF UNDISPUTED FACTS (Document 46, hereafter Stip.) and SUPPLEMENTAL JOINT SUBMISSION OF UNDISPUTED FACTS,
the deposition testimony taken in
this matter and the additional evidence LifeCare expects to elicit from the above listed witnesses at trial, LifeCare proposes the following findings of fact: A. AGREED UPON FACTS Plaintiff Austin LifeCare (LifeCare): 1. LifeCare provides information on abstinence, which is a recognized form of birth control. (Stip. 30) 2. LifeCare does not provide or specifically refer for any other forms of birth control, including to providers of FDA-approved birth control drugs and medical devices.
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LifeCare does not recommend, provide, or refer single women for contraceptives. (Stip. 30) 3. LifeCare does advise married women seeking contraceptive information to seek counsel, along with their husbands, from their pastor and/or physician. (Stip. 30) 4. LifeCare provides sonograms and pregnancy diagnoses, supervised by a licensed physician. (Stip. 31) 5. LifeCare operates a laboratory currently certified by U.S. Department of Health and Human Services Center for Medicare & Medicaid (HHS) pursuant to Section 353 of the Public Health Services Act (42 U.S.C. 263a) as revised by the Clinical Laboratory Improvement Amendments (CLIA) to examine bodily fluids of its clients to determine the results of a pregnancy test procedure that has been approved as a waived test by HHS. (Stip. 32) 6. LifeCare receives funding through 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. (Stip. 40) 7. The TPCN is funded with funds received from the Texas Health and Human Services Commission (THHSC) as part of the Texas Alternative to Abortion Services Program (TAASP). (Stip. 40) 8. Pursuant to the TAASP, as administered by the THHSC through its contract with the TPCN for program and administrative services to promote childbirth rather than abortion, LifeCares facilities, programs and corporate administration are annually inspected and evaluated by a TPCN inspector as a condition of receiving
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reimbursement for its qualifying expenditures promoting childbirth through its counseling services, rather than abortion. (Stip. 41) The 2010 and 2012 Ordinances: 9. Members of the public spoke at an April 8, 2010 City Council meeting, both in favor of and opposed to passage of the 2010 Ordinance. Members of the Austin City Council also spoke at the meetings. (Stip. 5, Tab C) 10. During the April 8, 2010 City Council meeting, testimony was presented on behalf of LifeCare that it provides accurate, state-approved information on abortion and are otherwise always truthful with clients about the services they offer, but the Ordinances disclaimer would substantially burden LifeCares right to speak with their clients about their situations and also about the options available to them. (Answer to LifeCares Amended Verified Complaint Answer 40; Stips, Tab C) 11. During the April 8, 2010 City Council meeting, those testifying against the now Repealed Ordinance inquired whether any specific evidence exists as to the Repealed Ordinances necessity. (Answer 41; Stips, Tab C) 12. During the April 8, 2010 City Council meeting, two attorneys testified against the Ordinance and questioned its constitutional legality. They stated that the now Repealed Ordinance would place a substantial burden on religious ministries and that it mandates compelled speech in violation of the United Stated and Texas Constitutions. (Answer 42; to Stips, Tab C, .) 13. One attorney testified that a similar ordinance was being challenged in federal district court in Maryland. (Answer 42; to Stips. Tab C.)
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14.
Despite the above-described testimony the City Council unanimously passed the now Repealed 2010 Ordinance. A video of the City Councils proceedings leading to the Citys enactment of the 2010 Ordinance can be found at the Citys website at http://www.ci.austin.tx.us/cityclerk/edims/2010/20100408-reg.htm. (Answer 43)
15.
In connection with passage of the 2010 Ordinance, the City posted publicly available agenda back-up materials that are labeled COA003601-3650. Those materials included the Waxman report and 2009 NARAL report (Stip. 6, Tab E and F)
16.
The 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 with pregnant teenagers and women who are seeking comprehensive womens healthcare. III.b.i., IV.a. 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. Appendices I. 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. (Answer 32)
17.
The Waxman Report criticizes 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 and refers to one centers religious mission in a demeaning manner. Waxman Report 1. It concludes by accusing pregnancy centers of engaging in tactic[s] [that] may be effective in frightening
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pregnant teenagers and women and discouraging abortion. Waxman Report 14. (Answer 33) 18. Members of the public spoke at a January 26, 2012 City Council meeting, both in favor of and opposed to passage of the 2012 Ordinance. Members of the Austin City Council also spoke at the meetings. (Stip. 5, Tab D) 19. In connection with passage of the 2012 Ordinance, the City posted publicly available agenda back up materials (COA003658-005968) including the 2011 NARAL Report (Stip. 8, Tab G) 20. The March 2011 NARAL report titled The Texas Alternatives to Abortion Program: Bad Health Policy, Bad Fiscal Policy makes no mention of Austin LifeCare. (Answer 35) 21. Not only do the audits fail to show any malfeasance on the part of LifeCare, but the only mention of LifeCare is a supportive, positive comment. Specifically, the May 19, 2011 TPCN Site Monitoring Report published by the State of Texas ALTERNATIVE
TO
ABORTION SERVICE PROGRAM states: Austin LifeCare is a valuable and much
needed resource for pregnant and/or parenting women in the Austin area. (Answer 36) 22. During the January 26, 2012 City Council meeting, three attorneys representing LifeCare as well as an attorney representing the other plaintiffs in this consolidated action testified against the Proposed Replacement Ordinance explaining that it was no more and possibly less constitutional than the now Repealed Ordinance. Referencing the recent judgments in federal court as well as their January 25, 2012 letter to the City Councils outside legal counsel citing those judgments, a true and correct copy of
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which is found at Stip, Tab P each attorney explained that the signage requirement in the Proposed Replacement Ordinance, without any showing of a compelling government interest narrowly implemented using the least restrictive means, still imposes an unconstitutional burden on speech and would be held to be unconstitutional. (Stip, Tab D at ps 4-19. 23. Each attorney also explained that the attorneys fees are growing, and urged the City Council to make both the constitutional and prudent decision not to enact the Ordinance. (Stip, Tab D pg. 6, 13 24. Along with his testimony, Stephen Casey, an attorney representing Austin LifeCare, submitted into evidence several documents regarding Austin LifeCares policies. (Answer 45, Stip. 9, Tab H, COA003487-98) 25. At the January 26, 2012 meeting, several council members including sponsor Bill Spelman, Kathie Tovo, and Chris Riley referenced their fears of alleged misinformation being given to women and their desire for the provision of accurate womens health information as the basis for the Ordinance. (Answer 37) 26. None of the Council members named LifeCare or any Austin PRC as misinforming clients in anyway. No actual examples were given of Austin PRCs giving false information or telling untruths regarding what services they provide or what their qualifications are. (Answer 37) 27. There was no explanation by any of the Defendants as to why the City had not opted to use existing anti-fraud or consumer protection laws on the books or to use their own independent municipal resources to promote the governments message instead of imposing it on Plaintiffs by the Ordinance. (Answer 37)
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28.
During the January 26, 2012 City Council meeting, the Ordinances sponsor, defendant William Spelman, stated We have information in the backup to this motion which I think all of us had access to for several days documenting this is so in many crisis pregnancy centers in Austin, Texas and this has posed a significant number of problems for women for a long period of time. (Answer 46)
29.
Outside legal counsel for defendants, Sara Clark, was also questioned by defendant Spelman. She stated that the Ordinance was constitutional. Defendant Spelman also asked her if a PRC that provided medical services but only did so under the direction and supervision of a licensed health care practitioner would be covered by the Ordinance. Ms. Clark stated, No sir, the Ordinance would not apply to them. (Answer 46)
30. 31.
The 2012 Ordinance passed unanimously (Stip. 11) The 2012 Ordinance was created to achieve the same goals, in whole or in part, as the 2010 Ordinance. (Stip. 4)
32.
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)
33.
The Ordinance was designed to apply to the same centers as the Repealed Ordinance, those who do not provide or refer for abortion, but not to abortion centers. This can be seen in the earlier Ordinances as well as the statements made by sponsor Bill Spelman and the other council members. (Answer 102)
34.
The 2012 Ordinance states that Medical Service includes, without limitation, diagnosing pregnancy or performing a sonogram. (Stip. 13, Tab B)
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35.
The 2012 Ordinance requires [t]he owner or operator of an unlicensed pregnancy service center [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. 14, Tab B)
36.
The Enacted Ordinance further requires [e]ach sign [to] be at least eight and one-half inches by eleven inches and the text must be in a font size of at least 36 point. (Stip. 14, Tab B)
37.
The 2012 Ordinance is enforced with criminal penalties: An owner or operator commits an offense if the owner or operator violates [the Enacted 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. 15, Tab B)
38.
The 2012 Ordinance only applies to speakers who discuss the topic of pregnancy. (Stip. 16, Tab B)
39.
The Ordinance does not reach speakers on a wide variety of life-and-death healthcare issues on which people have varying viewpoints, such as vaccines, addictions, and
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cancer treatments.
It reaches only speakers primarily dealing with one topic
pregnancy. (Answer 52) 40. The Ordinance does not apply to all speakers or organizations that primarily provide counseling or information about pregnancy services or pregnancy options. (Answer 49) 41. 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 health care providers on site who supervise all medical services, as defined by the Ordinance, still must post the disclaimers if the practice isnt full time (Stip. 17, Answer 47) 42. Provided it meets the definition of Unlicensed Pregnancy Service Center, even if LifeCare provides limited ultrasound services and pregnancy testing services under the direction and supervision of a licensed health care provider, is regulated by HHS, and is monitored by THHSC, it is still covered by the Ordinance and must post the Ordinances mandated disclosures, including that it is not licensed by a state or federal regulatory entity to provide those services. (Answer 47) 43. The Ordinance does not define what is meant by the phrases full time practice on site or licensed or regulated or regulatory entity. (Answer 47, Spelman Depo. pg. 84 ln. 18-20) 44. 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 Answer 54)
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45.
The 2012 Ordinance compels speech. The 2012 Ordinance mandates the timing and content of Plaintiffs speech, by requiring the sign specified in the Ordinance. (Stip. 20)
46. 47.
Plaintiffs, as a primary purpose, provide pregnancy-related services. (Stip .21) Based on their religious beliefs, Plaintiffs do not provide abortion services and will not refer any client to providers of abortion services. (Stip. 22, AVC 71)
48.
LifeCare does not have a health care provider that is licensed by the state or federal regularly entity maintaining a full time practice on site. (Stip. 23)
49.
Plaintiffs facilities are not licensed by a state or federal regulatory entity to provide medical services. (Stip. 24)
50.
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)
51.
Plaintiffs are opposed to posting the signage required by the 2012 Ordinance. (Stip. 26)
52.
The services Plaintiffs provide to their clients are highly dependent on the development of personal relationships with the women they serve. (Stip. 27)
53.
Displaying the signs required by the 2012 Ordinance may deter potential clients who would otherwise hear Plaintiffs religious and other messages. (Stip. 28)
54.
LifeCare wishes to engage in its communications and related services about pregnancy without being forced to post the Ordinances mandated disclaimers. (Answer 65) The Lawsuit:
55.
On or about April 22, 2011 and September 16, 2011, counsel for LifeCare delivered letters to Defendant City of Austins City Attorney, Karen Kennard. (Stip. 42, Tab N)
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56. 57. 58.
The City Attorney never responded to either of the letters in Tab N. (Answer 76) On October 5, 2011, LifeCare filed herein its Verified Complaint. (Stip. 43) On or about January 25, 2012, LifeCares legal counsel delivered a letter to Defendant City of Austins attorneys. (Stip. 45, Tab P)
59.
A Motion for Preliminary Injunction was filed on or about October 12, 2011 (Document 13). (Answer 25)
60.
On November 11, 2012, a stay (Document 29) was granted by this Court until the next status conference (February 3) so that a decision could be made by Defendants regarding the now Repealed 2010 Ordinance. In exchange for the stay the City agreed not to enforce its now Repealed Ordinance,
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B. FACTS TO BE PROVED The reasons for the Ordinance: 61. The goal of the Ordinance, although it is not expressly stated in the Ordinance, was to guarantee a pregnant woman two things: medical attention and accurate information. (Spelman Depo. pg. 35, ln. 5-24). 62. The City was persuaded by the Waxman and NARAL reports that PRCs were not providing accurate information to women. (Spelman Depo. pg. 36, ln. 19-25). 63. The reasoning for the Ordinance was basically based on these two reports. (Spelman Depo. pg. 37, ln. 17-19). 64. Although nothing in the Ordinance so states, the Ordinance is ostensibly for consumer protection. The City believed that, unlike Planned Parenthood, PRC clients dont know what to expect at a PRC. (Spelman Depo. pg 36, ln. 1-9). 65. The City has no complaints that any woman has been denied access to the medical attention they needed by an Austin PRC. (Spelman Depo. pg. 50, ln. 2-6, pg. 55, ln. 19) 66. The City has no complaints that an Austin PRC has used false information to frighten pregnant teenagers. (Spelman Depo. pg 133, ln. 5-24) 67. The City is not aware of any specific complaint against Austin LifeCare (Spelman Depo. pg. 94, ln. 24-25) 68. There was no actual investigation of Austin PRCs by the City of Austin (Spelman Depo. pg. 38, ln. 10-21) 69. The City could have initiated an investigation of PRCs. (Spelman Depo. pg 38 ln. 2225)
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70.
The City is not aware of any investigations by Austin into PRCs, (Spelman Depo. pg 20 ln. 15-22)
71.
Mr. Spelman has not personally visited or contacted a PRC. (Spelman Depo. pg 25 ln. 15-21).
72.
Council Member Spelman is unaware if any of the PRCs referred to in the Waxman report are in Austin, but this did not matter to him. (Spelman Depo. pg 55 ln. 21 pg. 56 ln. 4)
73.
Spelman doesnt know if the Waxman report includes information on Austin PRCs. (Spelman Depo. pg 28 ln. 15-18).
74.
Spelman believes the sample to be representative and that he could reasonably infer the probability that a randomly selected pregnancy resource center in Austin, Texas will provide inaccurate information to a caller in similar circumstances. (Spelman Depo. pg. 56 ln. 6 pg. 57 ln. 11)
75.
The above point of fact is based on the conjecture that federally supported pregnancy resource centers are a representative sample of all pregnancy resource centers. (Spelman Depo. pg. 57 ln. 12-22)
76.
From the 2011 NARAL Report, Spellman quotes "100 percent of CPCs visited referenced a false link between abortion and breast cancer, with one CPC even claiming a woman's risk of breast cancer is increased by 35 percent after an abortion." and "100 [%] of CPCs visited described a fictional post-abortion stress syndrome," and "67 percent of CPCs visited told investigators condoms were not effective in stopping STDs." as being persuasive to the passage of the second ordinance. (Spelman Depo. pg. 61 ln. 15 pg. 62 ln. 9)
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77.
There was no investigation or research done by the City into the science behind whether it is false or fictional to assert such a breast cancer link. (Spelman Depo. pg. 78 ln. 12-22).
78.
The City did not find out if PRCs were basing their information upon any government report. (Spelman Depo. pg. 78 ln. 23 pg. 79 ln. 4).
79.
The 2011 NARAL report has no evidence that any of the four Austin PRCs have misrepresented or misled their clients about whether they are medical facilities or have engaged in any deceptive practices concerning their services. (Spelman Depo. pg. 153 ln. 13 pg. 154 ln. 1)
80.
For the City, medically inaccurate information is information which is not verifiable scientific information based on primary research in medical journals. (Spelman Depo. pg. 122 ln. 19 pg. 123 ln. 2)
81.
The City believes that NARAL is very close to the medical research and that the statements that they make about what the medical research says to be true are accurate. (Spelman Depo. pg. 132 ln. 21-24)
82.
The City believes that information that [compared to] not carrying a pregnancy -carrying a pregnancy to term will be a lot less risky, that you're less likely to get breast cancer, that you're more likely to be able to carry pregnancies to term in future is inaccurate information. (Spelman Depo. pg. 134 ln. 17 pg. 135 ln. 3)
83.
Spelman has not read A Womans Right to Know published by the State of Texas (Spelman Depo. pg. 26 ln. 10-13).
84.
A letter from a University of Texas student, Prentice, is the only written complaint used as a basis for the Ordinance. (Spelman Depo. pg 51 ln. 23 pg. 52 ln. 17)
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85.
The Ordinance is also based on several hearsay emails which Spelman believed. (Spelman Depo. pg 37 ln. 21 pg. 38 ln. 6)
86.
The hearsay emails are less detailed and specific than the Prentice e-mail. (Spelman Depo. pg. 63 ln. 2-8)
87.
Spelman did not keep track of, write down, or make part of the administrative record any conversations he had which may have contained specific information about PRCs given for or against the Ordinance(s). (Spelman Depo. pg 64 ln. 324)
88.
He cant remember who spoke to him, if any specific PRC was named or of any specific example of inaccurate information. (Spelman Depo. pg 146 ln. 1 - pg. 147 ln. 7).
89.
These conversations all happened after it was made public that the Council was working on an ordinance regulating PRCs. (Spelman Depo. pg 146 ln. 20-25)
90. 91.
No follow ups were done from these conversations. (Spelman Depo. pg 147 ln. 8-16) The City did not meet with or speak to Prentice, the author of the complaint mentioned above. (Spelman Depo. pg 53 ln. 7-12).
92.
Though not aware Prentice, the complainant, is on the board of NARAL Pro-Choice Texas, this would not have made any difference to Spelman. (Spelman Depo. pg 53 ln. 13-21).
93.
The Prentice complaint contains no evidence of a medical service being denied. Spelman cites it as an example of someone not getting what she was expecting. Having not spoken to her, this is a mere impression of his. (Spelman Depo. pg 54 ln. 2-21).
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94.
If PRCs had a full time medical staff, that would address the Citys concerns (Spelman Depo. pg. 157 ln. 7-10)
95.
A full time medical staff would address the citys concerns even if that full-time medical staff were avowedly pro-life, overtly religious, and would not refer a woman to some or any contraceptives. (Spelman Depo. pg. 157 ln. 11-17) Development/ Draft of Ordinance:
96.
The first action taken to consider any ordinance was taken in either January or February of 2010. (Spelman Depo. pg 22 ln. 5-7).
97.
The Ordinance began by Spelman as a response to a conversation with a member of his chief of staff, Ms. Heidi Gerbracht, who was reporting to him on events taking place in her former hometown of Baltimore, Maryland. (Spelman Depo. pg 23 ln. 1013).
98. 99.
Heidi Gerbracht started the discussion (Spelman Depo. pg 24 ln. 5-10). Spelman requested that Heidi Gerbracht look into pregnancy resource centers. She returned with the Waxman report. (Spelman Depo. pg 27 ln. 18-23).
100.
Heidi Gerbracht has been Spelmans chief of staff (Spelman Depo. pg 23 ln. 16). for his entire current term, beginning in July 2009 (Spelman Depo. pg 23 ln. 23).
101.
Gerbracht attended a NARAL conference in the fall of 2009. She was given time off by the City to go and reported back what she learned. (Spelman Depo. pg 41 ln. 24 pg. 42 ln.10).
102.
The report of the 2009 NARAL conference influenced the creation of the ordinance. (Spelman Depo. pg. 42 ln.11-15).
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103.
Gerbracht used to work for Planned Parenthood of Baltimore (Spelman Depo. pg 144 ln. 19-21)
104.
Gerbracht was in contact with Planned Parenthood of Baltimore. (Spelman Depo. pg 144 ln. 16-18)
105.
NARALs own YouTube video Exposing Crisis Pregnancy Centers One City at a Time, uploaded by the account NARALProChoiceNY, and available at
http://www.youtube.com/watch?v=Tpya05pQGAQ. explains how Austins ordinance and other similar ordinances around the country are part of NARALs Urban Initiative, started at a summit in 2008 in New York City and continued at a summit in Denver in 2009. After the Denver summit, NARALs political director and an Austin NARAL contact decided to push legislation in Austin. This Austin contact is identified in the video as Heidi Gerbracht, policy director for Councilmember Bill Spellman. Both Spelman and Gerbracht appear in the video. Gerbracht states that, the conversation at the Denver Urban Initiative was fundamental to us getting our crisis pregnancy ordinance started and then passed. She admits that upon returning from the Denver initiative she immediately started working on an ordinance for Austin. (NARAL YouTube video transcript,ExhP-21 Spelman Depo. pg. 69 ln. 24 pg. 72 ln. 3). 106. Spelman presumed that Gerbracht was relying on outside organizations such as NARAL or Planned Parenthood for the information she brought to the council. (Spelman Depo. pg 105 ln. 25 pg. 106 ln. 16, pg. 107 ln, 5-14). 107. When researching for the ordinance Gerbracht was allowed to make her own decisions regarding what to investigate or not investigate. (Spelman Depo. pg 105 ln. 9-23).
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108.
She worked closely with some people who were on the staff or the board of NARAL and Planned Parenthood. (Spelman Depo. pg 143 ln. 19-22)
109.
Sara Cleveland is the executive director of NARAL National. (Spelman Depo. pg 69 ln. 2-6).
110.
Sarah Wheat is an interim director of the local chapter of Planned Parenthood. (Spelman Depo. pg 72 ln. 10-12).
111.
Spelman has heard the name Blake Rocap but doesnt know who he is. (Spelman Depo. pg 72 ln. 15-19).
112.
The 2012 Ordinance was shown to people outside of the city council but not to PRCs (Spelman Depo. pg 142 ln. 3-12, 20-25)
113.
The Ordinance was not shared with PRCs because of presumption that theyd resist regulation but Spelman now admits that failure may have been an error in judgment on his part. (Spelman Depo. pg 143 ln. 3-11)
114.
The City defined limited service pregnancy center so that the class was easily identifiable and that PRCs and only PRCs were regulated. (Spelman Depo. pg 44 ln. 20 pg. 45 ln. 9).
115.
The City did not want to regulate abortion clinics or any one else who talks about pregnancy-related services. (Spelman Depo. pg 45 ln. 1624).
116.
The City was looking for a restrictive definition aimed at PRCs. (Spelman Depo pg 73 ln. 18-23).
117.
The Ordinance only addresses pregnancy related speech, because the City was looking for a restrictive definition aimed at PRCs. (Spelman Depo. pg. 82 ln. 23 - pg. 83 ln. 6).
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118.
The Ordinance only lists pregnancy testing and options counseling to target a narrow class. (Spelman Depo. pg. 83 ln. 7-15).
119.
It was important that the sign required by the Ordinance be placed outside the door, before a potential client decides to enter. It allows the decision to be made to not enter. (Spelman Depo. pg 46 ln. 19 pg. 45 ln. 9).
120.
The location of the sign matters because if it was required inside the building, the potential client will have already decided to walk through the door before being able to read it. (Spelman Depo. pg 47 ln. 21 pg. 48 ln. 10).
121.
It is a possible consequence that some potential clients will be dissuaded from entering a PRC. (Spelman Depo. pg 49 ln. 1-2).
122.
There was no conversation with PRCs to see if they considered the sign to be the minimally intrusive method though this conversation could have occurred. (Spelman Depo. pg 68 ln. 5-13).
123.
The City did not investigate whether PRCs are capable of being licensed. (Spelman Depo. pg 149 ln. 1-5)
124.
There is a way to call the City of Austin and file a complaint regarding businesses or services. (Spelman Depo. pg 30 ln. 6-25).
125.
City officials held internal discussions of possible alternate measures that might have accomplished the Ordinances goal, including a public education campaign, posting signs on public property, or making changes to the website, but the City took no such no action other than making personal communications from Council Members to people. (Spelman Depo. pg 90 ln. 23 pg. 92 ln. 22)
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126.
The City did not investigate whether or not the City itself refers any women to go to PRCs and if this would be an opportunity to get their message out. (Spelman Depo. pg 93 ln. 8 pg. 94 ln. 4)
127.
The City does not refer to PRCs because theyre not medical providers. (Spelman Depo. pg 118 ln. 8-16)
128.
2-1-1 is a phone number operated by United Way, which may refer to PRCs (Spelman Depo. pg 118 ln. 17-25, pg. 158 ln. 19 pg. 159 ln. 8)
129.
The City of Austins website directs pregnant women to call 2-1-1. (Spelman Depo. pg.159 ln. 9 pg. 160 ln. 9)
130.
The City could have used this opportunity to add a disclaimer or some information about PRCs to the website before directing women to call 2-1-1 instead of requiring PRCs to speak the message. (Spelman Depo. pg.160 ln. 9 pg. 161 ln. 12)
131.
Austin LifeGuard, a program of Austin LifeCare, is on the Citys referral list of abstinence-only education. (Spelman Depo. pg 119 ln. 15 pg. 120 ln. 7)
132.
Everything that Spelmans staff collected and that was available to him and to the rest of the council to make this decision on either the first or the second ordinance has been made available to Plaintiffs. (Spelman Depo. pg 29 ln. 12-15)
133.
If any complaints are not in the document production, they were not considered for the Ordinance. (Spelman Depo. pg 34 ln. 16-25).
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2012 Ordinance: 134. A new Ordinance was made because the 1st ordinance required an untrue statement regarding birth control for at least one of the PRCs. (Spelman Depo. pg 80 ln. 16 pg. 81 ln. 12). 135. The Ordinance doesnt apply if a licensed health care provider maintains a full time practice on site even if that provider isnt supervising any of the facilitys services. (Spelman Depo. pg. 85 ln. 8-22). 136. If a licensed medical provider supervises all services on site but doesnt maintain a full-time practice, the ordinance applies. (Spelman Depo. pg 85 ln. 23 pg. 86 ln. 2). 137. Even Spelman does not know exactly what full time means in regards to the enforcement of the ordinance other than its colloquial understanding of something like 40 hours a week. (Spelman Depo. pg 84 ln. 21 pg. 85 ln. 7). 138. The Ordinance could apply to support groups for pregnant women or pregnancy and birthing coaches. (Spelman Depo. pg 89 ln. 19-25) 139. If LifeCares commitment to care were posted outside and a line was added stating the center is not licensed by a state or federal regulatory entity, if that's accurate, then it would solve the problem the ordinance is meant to address. (Spelman Depo. pg 97 ln. 8 pg. 98 ln. 23) 140. It would be consistent with the law to add language like We are not required to be licensed by state or federal regulatory entities to provide the services we provide. to the sign. (Spelman Depo. pg 100 ln. 25 pg. 101 ln. 3, pg. 149 ln. 13-25, pg. 150 ln. 7-12)
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LifeCare: 141. Plaintiff LifeCare is a charitable, not-for-profit corporation duly incorporated under the laws of Texas, exempt from federal taxation by Section 501(c)(3) of the Internal Revenue Code, with its principal place of business at 1215 West Anderson Lane, Austin, Texas. (Austin Life Care Amended Verfied Complaint (AVC) 13, Coburn Depo. pg. 11 ln. 5-10) 142. LifeCare provides pregnancy-related counseling and other services without charge to its clients under the supervision of its chief executive officer and executive director, Pamela Cobern. (AVC 13) 143. Since 1984, LifeCare has been serving the Austin community and each of its clients confidentially and free of charge. (AVC 14, Coburn Depo. pg. 11 ln. 11-13) 144. LifeCare does not sell any products or services and does not charge any person it serves for its counseling, information, or services. LifeCare does not engage in or propose any commercial transactions. LifeCares providing of counseling, information and services is not solely related to any economic motive benefiting LifeCare. (AVC 60-62) 145. Since 1984 LifeCare has operated in Austin in general conformance with what the Ordinance now defines as an unlicensed pregnancy service center. (AVC 56) 146. LifeCare, through its options counseling and otherwise, is dedicated to providing truthful, compassionate and trustworthy service to the Austin community, and each of its clients, by promoting positive solutions to the challenges surrounding unplanned pregnancies through prevention, intervention, and restoration. (AVC 15)
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147.
LifeCare seeks to protect the physical, emotional and spiritual lives of women and their unborn children, by providing services to pregnant women including education about pregnancy, about abortion procedures, and about adoption and parenting as well as providing limited ultrasound medical services under the direction and supervision of a licensed physician, childbirth and parenting classes, mentors and material assistance (clothing, baby items, etc.). (AVC 15)
148.
While no state or federal regulatory entity exists from which LifeCare could obtain a license for it to perform its limited ultrasound and pregnancy testing services, all such services are provided by or under the direction and supervision of a licensed health care provider. Pursuant to the Texas Alternative to Abortion Services Program (TAASP), as administered by Texas Health and Human Services Commission (THHSC) through its contract with the Texas Pregnancy Care Network (TPCN) for program and administrative services using Temporary Assistance for Needy Families (TANF) federal funding to promote childbirth rather than abortion, LifeCares facilities, programs and corporate administration is annually inspected and evaluated by a TPCN inspector as a condition of receiving reimbursement for its qualifying expenditures promoting childbirth through its counseling services, rather than abortion. As evidenced by its Certificate of Waiver, LifeCare operates a laboratory currently certified by U.S. Department of Health and Human Services Center for Medicare & Medicaid (HHS) pursuant to Section 353 of the Public Health Services Act (42 U.S.C. 263a) as revised by the Clinical Laboratory Improvement Amendments (CLIA) to examine bodily fluids of its clients to determine the results of a pregnancy test procedure that has been approved as a waived test by HHS. All pregnancy test
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results that LifeCare issues pursuant thereto are done under the direction and supervision of a licensed physician. (AVC 15) 149. Help is available from LifeCare 24-hours-a- day through a confidential help line. (AVC 15) 150. LifeCare offers support for the spiritual, emotional, and psychological effects that can occur after an abortion experience or past sexual abuse, including a Bible study and support group led by peer counselors trained to guide and support men and women through the unique healing from an abortion experience, and educational conferences for men, women, counselors, clergy, and families. (AVC 15) 151. LifeCares center director, Bonnie McJunkin, is a Licensed Professional Counselor. (Coburn Depo. pg. 30 ln. 6, pg. 32 ln. 8-17) 152. LifeCare has a medical director, Mikael Love, who reviews the ultrasounds that are done by LifeCares RDMS provider volunteer. He reviews LifeCares medical
policies, and he provides standing orders for LifeCares ultrasounds and pregnancy tests, or testing, and their use of the pregnancy wheels. (Coburn Depo. pg. 61 ln. 17 pg. 62 ln. 1) 153. LifeCares sonograms are administered by Ms. Million, a volunteer ARDMS licensed sonographer and reviewed by Dr. Love, or they are administered by one of LifeCares volunteer OB/GYN physicians. (Coburn Depo. pg. 65 ln. 19 - pg. 66 ln. 6) 154. The ultrasounds done at LifeCare are limited ultrasounds, only done up to 13 weeks, 5 days, and are not for the purpose of diagnosing gender or health problems with the baby. (Coburn Depo. pg. 68 ln. 20 - pg. 69 ln. 20)
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155.
LifeCare immediately refers all clients who may be pregnant to pre-natal care, other medical care or medical information to be provided by a physician. . (Coburn Depo. pg. 108 ln.13-21, pg. 139 ln. 21 - pg. 140 ln. 8, pg. 171 ln. 15-18)
156.
The only medical information LifeCare provides during its peer-to-peer counseling about pregnancy or abortion comes directly from the Womans Right to Know brochure. (Coburn Depo. pg. 108 ln. 25 pg. 109 ln. 3, pg. 112 ln. 22 - pg. 114 ln. 6, pg. 173 ln. 25 pg. 174 ln. 13, pg. 175 ln. 14-20)
157.
LifeCare does annual background checks of all employees and volunteers. (Coburn Depo. pg. 44 ln. 11-20)
158.
During all relevant times to the Ordinance and this lawsuit, LifeCare has posted its Commitment to Care (Depo. Exh. 105) including its confidentiality policy and grievance policy visible in its entryway. (Coburn Depo. pg. 54 ln. 21 pg. 55 ln. 12, pg. 57 ln. 5-11)
159.
LifeCare is a pro-life, Christian, faith-based non-profit organization that is supported by and partners with faith-inspired individuals and churches from several Christian denominations. (AVC 16)
160.
All of LifeCares speech and services, including its counseling, pregnancy testing and limited ultrasound services are carried out in furtherance of its religious and moral views in support of the sacred dignity of human life (and therefore against its destruction in abortion) and in order to glorify God through Jesus Christ. (AVC 17, 72)
161.
Based upon its moral conscience and its religiously-motivated belief in the sanctity of human life and dignity from conception until natural death, as well as upon LifeCares
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understanding of the physical, spiritual, psychological and emotional risks of induced abortion, LifeCare does not provide or refer for abortion or abortifacients, but is committed to offering accurate information about abortion procedures and risks. (AVC 18, Coburn Depo. pg. 146 ln. 6-9) 162. LifeCare does provide information on abstinence, which is a recognized form of birth control. (AVC 19) 163. LifeCare does not provide or specifically refer for any other forms of birth control, including to providers of FDA-approved birth control drugs and medical devices. LifeCare does not recommend, provide, or refer single women for contraceptives. LifeCare does advise married women seeking contraceptive information to seek counsel, along with their husbands, from their pastor and/or physician. (AVC 19) 164. LifeCare provides no medical services, except limited ultrasound and pregnancy testing services either directly provided by a licensed physician on site or under the direct supervision of a licensed health care provider on site. (AVC 57) 165. LifeCare does not have a licensed health care provider that maintains a full-time practice on site because a full-time on site practice is not necessary to provide or otherwise directly supervise the above-described services LifeCare does provide. (AVC 57) 166. LifeCares peer and options counseling is not professional counseling. (Coburn Depo. pg. 170 ln. 1-13) 167. Forcing LifeCare to precede sensitive conversations with government-mandated disclaimers, including the disclaimer mandated in the Ordinance that misleadingly and irrationally declares that LifeCare does not have a facility license that governments do
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not even offer, interferes with and may even preclude all together LifeCares discussions with these women and its right to freely speak to and associate with these women in the manner, the timing, the context, and the emphasis it deems necessary to convey its message. (AVC 59) 168. Although LifeCare uses fully licensed health care providers for its limited ultrasound services and pregnancy testing services, and has all of the individual licenses required for those services, under the Ordinance LifeCare will be forced to state that its facility is unlicensed by federal and state governments, implying that its services are lacking in needed regulation or licenses when no such license is even possible. (AVC 68, Tab B) The Unconstutional Signage: 169. Fearing the penalties threatened by the Repealed Ordinance if it did not succumb to the Repealed Ordinances compelled speech, LifeCare had reluctantly complied with the Repealed Ordinance from its date of enforcement until November 10, 2011, when the Court stayed this action and the City of Austin agreed that the Repealed Ordinance would not be enforced while the City of Austin considered its options. (AVC 75) 170. Upon being informed that City of Austin agreed that the Repealed Ordinance would not be enforced, LifeCare immediately took down the Repealed Ordinances disclaimers, and has not posted any government-mandated disclaimers from the Repealed Ordinance or from the Ordinance. (AVC 75)
IV. PROPOSED CONCLUSIONS OF LAW SUMMARY OF ARGUMENT
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All three similar ordinances ruled upon by federal district courts have been held subject to strict scrutiny and enjoined in whole or in part. O'Brien v. Mayor and City Council of Baltimore, 768 F. Supp. 2d 804 (D. Md. 2011); Centro Tepeyac v. Montgomery County, 779 F. Supp. 2d 456 (D. Md. 2011); Evergreen Assn v. City of New York, Nos. 801 F. Supp. 2d 197 (S.D.N.Y. 2011). The Ordinance in this case is subject to strict scrutiny for exactly the same reasons, because it significantly burdens Plaintiffs expression as well as association and freedom of religion and does not regulate commercial or professional speech. The Ordinance fails strict scrutiny because the City has not shown evidence of a compelling interest or any harm at all, is not narrowly tailored to nor does it even achieve the Citys stated purpose for the Ordinance, and is not the least restrictive means of achieving the Citys stated goals or any compelling governmental interest. In addition, the Ordinance is impermissibly vague because key terms are not sufficiently defined. ARGUMENT A. A. The Ordinance Violates Freedom of Speech The Ordinance Is Subject to Strict Scrutiny Because it Compels Speech The
The Ordinance is unconstitutional because it compels protected free speech.
Ordinance forces LifeCare and other pregnancy resource centers (PRCs) to post a sign communicating a message that they would otherwise not speak and that significantly burdens the conversation and relationship between PRCs and their clients. Freedom of speech includes both the right to speak freely and the right to refrain from speaking at all. Wooley v. Maynard, 430 U.S. 705, 714 (1977)). If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess
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by word or act their faith therein. Id. at 99 (emphasis added) (quoting W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)). It is well established that forcing speech is just as unconstitutional as restricting speech. See Turner Broad. Sys., Inc. v. F.C.C. (Turner I), 512 U.S. 624, 642 (1994); Pac. Gas & Elec. Co. v. Pub. Utils. Commn of Cal., 475 U.S. 1, 11 (1986); Wooley v. Maynard, 430 U.S. 705, 714 (1977). The Supreme Court has explained that the right to speak and the right to refrain from speaking are complementary components of the broader concept of individual freedom of mind. Wooley, 430 U.S. at 714 (citing W.Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943)). Any alleged difference between compelled speech and compelled silence . . . is without constitutional significance. Id. at 796. Whether the compelled disclaimer is opinion or
mere statement of fact makes no difference to the scrutiny applied against laws that compel speech. Id. at 797-98. There is no factual exception to the rule that information is speech. Sorrell, 131 S. Ct. at 2667. Laws that compel speakers to utter or distribute speech bearing a particular message are subject to the same rigorous scrutiny as those that suppress, disadvantage, or impose differential burdens upon speech because of its content. Turner I, 512 U.S. at 642. 3
Commercial speech scrutiny does not apply, because commercial speech is speech proposing a commercial transaction, or is expression related solely to the economic interests of the speaker and its audience. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm. of New York, 447 U.S. 557, 560 (1980). Plaintiffs provision of information and services in pursuit of its pro-life viewpoint engages in no commercial transactions and has no economic motive. See also Riley, 487 U.S. at 796 (speech inextricably intertwined with protected speech is not commercial); OBrien, 768 F. Supp. 2d at 813 (commercial speech scrutiny does not apply); Centro Tepeyac, 2011 WL 915348, at *6 (Defendants cannot rely on commercial speech cases); Evergreen, 2011 WL 2748728, at *6 (the Citys argument that free pregnancy speech and services are commercial is particularly offensive to free speech principles). And the Ordinance does not itself regulate commercial speechthere is no element in the Ordinance requiring that the speech it covers propose a commercial transaction.
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B.
The Ordinance Is Also Subject to Strict Scrutiny Because It Discriminates on the Basis of Viewpoint and Content
The Ordinance is a plain example of unconstitutional viewpoint- and speakerdiscrimination. On its face, the 2010 Ordinance determined which speakers would be regulated based on whether they have a pro- or anti-abortion viewpoint. (Stip. 2, Tab A) Only entities that engage in pregnancy speech and do not provide or refer for abortion or for birth control were covered. Entities that provide or refer for either were exempt from the 2010 Ordinance, by explicit definition. LifeCare would have been exempt if it violated its beliefs by concluding all its communications by saying, but if you want an abortion or comprehensive birth control, here is the address for Planned Parenthood. Regardless of the linguistic changes to the 2012 Ordinance, the City stipulates in this case that the 2012 Ordinance is designed to cover exactly the same centersonly pro-life PRCs, and Likewise, it is not legitimate here to apply Planned Parenthood v. Casey, 505 U.S. 833, 88285 (1992) and similar cases that allow certain disclosure requirements only as part of a specific medical procedure that requires a license and needs informed consent. None of those factors exist with Plaintiffs speech and services, which are not the practice of medicine (the Ordinance by definition seeks to target non-licensed, non-medical speech). Plaintiff does engage in some medical procedures but those are not what the Ordinance regulates (nor could they be since Texas has occupied the field of medical regulation). No case applies Casey outside the context of licensed practice, and all three federal district courts, referenced supra, rejected the contention that professional speech standards apply to fully-protected speech such as Plaintiffs. The plaintiffs do not propose that they are noncommercial merely because they are incorporated as non-profit entities. They contend their speech and the regulations of the Ordinance do not involve commercial transactions at all. [T]he offering of free services such as pregnancy tests and sonograms in furtherance of a religious mission fails to equate with engaging in a commercial transaction. OBrien, 768 F. Supp. 2d at 81314. the Supreme Court has declared that a non-profit organization is not rendered a commercial speaker even when it does engage in incidental commercial transactions (as Plaintiffs here do not). The Court held in Riley that a non-profits fundraising, by paid professional solicitors, was still not commercial speech. Riley, 487 U.S. at 797800. Instead, speech that is inextricably intertwined with protected speech is not commercial, as a matter of law. Id. at 796. Plaintiffs provision of free services and counseling for the purpose of advancing their pro- life message does not come close to the level of the ostensibly commercial activity at issue in Riley, which did not constitute commercial speech anyway.
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not abortion facilities. (Stip 4, Tab B). This is dispositive of the question whether the 2012 Ordinance is viewpoint discriminatory. Additionally, Council Member Spelman has admitted that the City specifically targeted one class of centers: PRCs in both Ordinances. He admitted that specific language in the 2012 Ordinance was used because PRCs were the centers the Ordinance was intended to cover. (findings of fact 116-118) Spelman similarly admitted that the Ordinances were developed by one member of his staff, Heidi Gerbracht, who, before coming to work in his office in 2009, had worked for Planned Parenthood of Baltimore where she had just been involved in developing their signage ordinance directed at PRCs. (finding of fact 97-105) She developed a team composed of members of NARAL and Planned Parenthood, organizations who fight for abortion and have completely opposing political and religious viewpoints with PRCs on abortion. (findings of fact 106-112) All of the information brought to Spelman and the rest of the Council came from NARAL and other biased sources. (findings of fact 106-112) Spelman admitted that he could have
investigated PRCs or made an effort to get input from them but he did not. (finding of fact 68-71, 78, 90) He also admits that he trusts NARAL on any scientific claims they made and did not make any effort to research the validity of their claims of false information. (findings of fact 77, 81) The Ordinance not only targets a specific class of speakers for their viewpoint but it targets their specific speech. The City has admitted that it was the substance of PRCs speech which includes beliefs and content the City disagrees with that triggered the development and enactment of the Ordinance. (findings of fact 62, 63, Tab E , F, G) Reports like the Waxman report which supply the only real basis for the Ordinance attack PRCs not for any harm they have done to women or the community but for the viewpoints and content of their speech with
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which abortion activists disagree. (Tab E , F, G) The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction. Rosenberger v. Rectors and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995) Viewpoint discrimination is an egregious form of content discrimination and a blatant First Amendment violation. Id.; see also Pleasant Grove City, Utah v. Summum, 129 S. Ct. 1125, 1132 (2009). Countless Supreme Court cases describe the fatality of any viewpoint discriminatory burden on speech. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 386, 391 (1992); Perry Educ. Assn v. Perry Local Educators Assn, 460 U.S. 37, 46 (1983); Christian Legal Soc. Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 130 S. Ct. 2971, 3009 (2010). As the Supreme Court explained recently in Sorrell v. IMS Health, 564 U.S. __,131 S. Ct. 2653, 2667 (2011), [i]n the ordinary case it is all but dispositive to conclude that a law is content-based and, in practice, viewpoint discriminatory. The Ordinances viewpoint distinction, applying only to centers that do not provide or refer for abortion or birth control, is a blatant violation of the First Amendment. Rosenberger, 515 U.S. at 829. Notably, the Ordinance is also unconstitutional because it is content-based. The See
Ordinance expressly applies only if someone speaks about one subject, pregnancy. See Tab A and B. See Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 624, 643 (1994) (As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based.). Content based regulations are presumptively invalid. R.A.V., 505 U.S. at 382; see also Sorrell, 2011 WL 2472796 at *8 (invalidating a statute that disfavors . . . speech with a particular content); Police Dept. of City of Chicago v.
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Mosley, 408 U.S. 92, 95 (1972) (government has no power to restrict expression because of its message, its ideas, its subject matter, or its content); Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991) (invalidating statute that plainly imposes a financial disincentive only on speech of a particular content). Thus a substantially identical ordinance was struck down, as viewpoint and content discriminatory, by OBrien, 768 F. Supp. 2d at 815. The Ordinance here is subject to the same fate, because as discussed below it cannot pass strict scrutiny. C. The Ordinance Utterly Fails Strict Scrutiny
Strict scrutiny review under the First Amendment requires that the Ordinance be narrowly tailored to promote a compelling Government interest and if a less restrictive alternative would serve the governments purpose, the legislature must use that alternative. U.S. v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000); see also Riley, 487 U.S. at 800-01; Wooley, 430 U.S. at 715-16. This requirement is the most demanding test known to constitutional law. City of Boerne v. Flores, 521 U.S. 507, 534, (1997). The State must specifically identify an actual problem in need of solving, and the curtailment of free speech must be actually necessary to the solution. That is a demanding standard. It is rare that a regulation restricting speech because of its content will ever be permissible. Brown v. Entmt Merchs. Assn, 131 S. Ct. 2729, 2738 (June 27, 2011) (internal citations omitted) (quoting Playboy, and R.A.V.). The City has no compelling interest if its supporting evidence is not compelling to substantiate that interest. Id. at 2739. The City must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way. Turner I, 512 U.S. at 664; Consol. Edison Co. of N.Y. v. Public Serv. Commn of N.Y., 447 U.S. 530, 543 (1980) (Mere speculation
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of harm does not constitute a compelling state interest.). Only the gravest abuses, endangering paramount interests, give occasion for permissible limitation of the fundamental right to free speech. Thomas v. Collins, 323 U.S. 516, 530 (1945). The determination of whether an asserted interest is compelling is not to be made in the abstract but rather in the circumstances of this case by looking at the particular aspect of the interest as addressed by the law at issue. See Cal. Democratic Party v. Jones, 530 U.S. 567, 584 (2000); see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993) (rejecting assertion that protecting public health was compelling interest in the context of these ordinances). 1. The Ordinance Advances No Compelling Interest The Ordinances viewpoint discrimination betrays its lack of a compelling interest. Because it only burdens a narrow class of disfavored speakers, and not all similar discussions about pregnancy, it cannot be said to advance the interest of protecting pregnant women. See Sorrell, 131 S. Ct. at 2668. The 2010 Ordinance on its face did not regulate speech by centers who refer for abortions and birth control, (Tab A) and the 2012 Ordinance is designed to and succeeds to cover the same centers (PRCs) and not cover other centers (abortion clinics). Also, both Ordinances only cover a tiny fraction of the plethora of speakers on pregnancy issues. Thus the compelling interest test cannot be satisfied, because the government fails to enact feasible measures to restrict other conduct producing substantial harm or alleged harm of the same sort. Lukumi, 508 U.S. at 546-47. [A] law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited. Id. at 520. The City cannot offer [an] explanation why remedies other than content-based rules would be inadequate. Sorrell, 131 S. Ct. at 2669. The City has failed to demonstrate its commitment to advancing its interest by applying its prohibition evenhandedly.
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See Fla. Star v. B.J.F., 491 U.S. 524, 540 (1989); see also City of Ladue v. Gilleo, 512 U.S. 43, 51 (1994) (rejecting under-inclusive law as a governmental attempt to give one side of a debatable public question an advantage in expressing its views); F.C.C. v. League of Women Voters of Cal., 468 U.S. 364, 396 (1984); First Natl Bank of Boston v. Bellotti, 435 U.S. 765, 793 (1978) (holding that an under-inclusive speech restriction undermines the likelihood of a genuine state interest in protecting against the alleged harm, and suggests instead that the legislature may have been concerned with silencing [the speaker] on a particular subject). The City can cite no compelling interest specific to this Ordinance. (finding of fact 65-79, 84-90, 93). It has no compelling interest in preventing deception, because the legislative record simply contains no evidence of deception, much less compelling evidence. See Brown v. Entmt Merchs. Assn, 131 S. Ct. 2729 (June 27, 2011). Deception in this context is merely a code word for fundamental disagreements with the centers speech about the risks and morality of abortion and particular birth control methods. This speech by pregnancy centers is speech that the City might not agree with or might not want people to consider, but it is protected by the First Amendment, whether the City believes it is right or wrong, and cannot be a legitimate subject of government targeting. The Supreme Courts decision last term in Brown v. Entmt Merch. Assn, 131 S. Ct. 2729, 2739 (2011), highlights the fact that the City has not met its burden to show compelling evidence of an alleged harm it has an interest in stopping. In Brown, the Court considered whether a California law that imposed restrictions on violent video games violated the freedom of speech. Id. at 2732. The law prohibited the sale or rental of violent video games to minors, and required the packaging of these specific video games to be labeled 18. Id. Treating the law as a content-based restriction on protected speech, the Court applied strict scrutiny and noted that
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unless [the law] is justified by a compelling government interest and is narrowly drawn to serve that interest, it cannot pass constitutional muster. Id. at 2738. As to the purported compelling interest, the Court explained [t]he State must specifically identify an actual problem in need of solving . . . and the curtailment of free speech must be actually necessary to the solution. . . . That is a demanding standard. Id. California conceded it could not point to a causal link between violent video games and harm to minors, but it claimed that it need not produce such proof because the legislature can make a predictive judgment that such a link exists, based on competing psychological studies. Id. (emphasis added). The Court rejected that argument because the government bears the risk of uncertainty in a speech restriction, such that ambiguous proof will not suffice. Id. at 2739 (emphasis added). The Court found that even scientific studies were insufficient, where they merely showed a correlative connection between violent video games and harm to children, because under strict scrutiny the state must prove that violent video games cause minors to act aggressively . . . Id. Otherwise the evidence is not compelling. Id. Here, the evidence is practically nonexistent compared to what the Supreme Court rejected as not compelling in Brown. The City offered not one scientific study purporting to show a cause (or even a correlation) between pregnancy centers and deception, delay in seeking of medical care, adverse health outcomes or confidentiality breaches. Not one. The only reports the City presented were the vigorously partisan, unscientific Waxman and NARAL Reports (attacking only anti-choice speakers, see, e.g., Findings of Fact 16, 17, Tab E, F, G). These reports do not even attempt to prove delay or adverse health outcomes. They doesnt review outcomes at all, but generally targets what pro-life centers say initially, and labels that deceptive because it says negative things about abortion. (Tab G) (calling it false to portray[]
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abortion as a painful, dangerous procedure that leads to a range of physical or emotional damage). The City simply cannot meet its strict scrutiny burden under Brown with only anecdotal, unreliable hearsay testimony, when California failed the test even with scientific studies. Mere experience, knowledge and common sense in the absence of any empirical proof is insufficient. Eclipse Enters., Inc. v. Gulotta, 134 F.3d 63, 67 (2d Cir. 1997). With no evidence of misinformation or actual harm to women by PRCs the City can do no more than speculate about how PRCs may mislead women and how this might lead to some harm. Mere speculation of harm does not constitute a compelling state interest. Consol. Edison Co. of N.Y. v. Pub. Serv. Commn of N.Y., 447 U.S. 530, 543 (1980). The City must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way. Turner I, 512 U.S. at 664. Generalized statements of potential harm lack the status of concrete evidence that a compelling interest demands. Ward v. Polite, Nos. 10-2100/2145, slip op. at 19 (6th Cir. Jan. 27, 2012) (citing Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 43738 (2006)). Anecdotal evidence alone is not compelling. Rothe Development Corp. v. Dept of Defense, 545 F.3d 1023, 1048 (Fed. Cir. 2008) (citing Adarand Constructors, Inc. v. Slater, 228 F.3d 1147, 1166 (10th Cir. 2000)). The City can claim no general interest in public health because the Ordinance fails to encompass such a broad purpose. Instead the Ordinance pursues only a tiny sliver of speakers on one single healthcare issuepro-life pregnancy counselors. The Citys failure to address the vast majority of discussions about pregnancy confirms its lack of a health interest. See Lukumi, 508 U.S. at 547; Merced v. Kasson, 577 F.3d 578, 594 (5th Cir. 2009).
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2. The Ordinance is Not Narrowly Tailored to Advance Any Interest Even if the City had a compelling interest, the Ordinance is not narrowly tailored to serve it. (finding of fact 27, 39-42, 44, 45, 95, 114, 115, 118, 122, 124, 125, 130) Defendants must not only demonstrate a compelling interest, [but also] show that it has adopted the least restrictive means of achieving that interest City of Boerne, 521 U.S. at 534; Playboy, 529 U.S. at 813. 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). The exact evil the Ordinance is supposed to prevent is pregnant women receiving inaccurate medical information and being prevented or somehow delayed from receiving medical care. (finding of fact 61). Yet the law does not target deception in any way nor does is ensure women will receive medical care. The Ordinance advances no interest against deception because it does not actually regulate any deceptive practices. Entities are subject to the Ordinance even if they engage in no deception at all, and provide completely truthful counseling or information. See The
Ordinance (Tab B). Likewise, the Ordinance does not regulate false advertising, because it does not regulate advertising at all, and it does not require the information regulated to be false. Id. The Ordinance is not tailored to and does not pursue the less restrictive alternative of regulating only deceptive speech.
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Similarly the Ordinance does nothing to ensure or even encourage women to seek medical care. In fact the requirement of posting outside the door actually creates the scenario where a pregnant woman may be convinced not to enter a PRC which would have encouraged her to seek the aid of a physician and would have helped refer her to one. In contrast to the prophylactic, imprecise, and unduly burdensome rule the State has adopted to reduce its alleged donor misperception, more benign and narrowly tailored options are available. Riley, 487 U.S. at 800. Riley notes what is completely true here: that the government can serve its interest of promulgating its disclaimers by doing so itself instead of forcing private entities to do so. Nothing prevents the City from using its own, public means to publish information discussed in the disclosures, and the City simply ignores this easy, inexpensive, and less speech-restrictive alternative. See also 44 Liquormart, Inc. v. R.I., 517 U.S. 484, 507-08 (1996) (plurality opinion) (striking down, under commercial speech standard, a government prohibition on advertising alcohol prices because of less restrictive alternatives, such as an educational campaign or counter-speech); Video Software Dealers Assn v. Schwarzenegger, 556 F.3d 950, 965 (9th Cir. 2009). There is not a scintilla of evidence of any such speech or advertising by the City though Spelman admits this was considered. (cite to finding of fact 27, 125, 129, 130) Instead the City seeks only to burden the speech of pro-life centers and subject them to fines and closure. If the Citys interest in this message has not been compelling enough for it to inform women with its own words and its own funds, the interest surely is not compelling enough to require Plaintiffs to speak it as a precondition to and burden on engaging in their private speech. Riley also notes that the State may vigorously enforce its antifraud laws. 487 U.S. at 800. Insofar as such laws apply to pregnancy centers, they can be utilized. If not, the City can
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explore amending its laws to combat fraud in a way that does not target disfavored speech. These more narrowly tailored rules are in keeping with the First Amendment directive that government not dictate the content of speech absent compelling necessity, and then, only by means precisely tailored. Id.; see also McIntyre v. Ohio Elections Commn, 514 U.S. 334, 350, 357 (1995) (striking down a prohibition against anonymous pamphlets since banning anonymity is not narrowly tailored where the state had other ways to prevent election fraud directly through its campaign fraud laws). Nothing in the legislative record shows that the City ever considered less restrictive alternatives. (finding of fact 27). The City did in fact consider using its own capacity to speak but decided not to do this. (finding of fact 125). [I]f a less restrictive alternative would serve the governments purpose, the legislature must use that alternative. U.S. v. Playboy
Entertainment Group, Inc., 529 U.S. 803, 813 (2000). Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms. Riley, 487 U.S. at 801 (internal quotations and citations omitted). As a matter of law, and on its face, the Ordinance fails strict scrutiny. B. The Ordinance violates the Freedom of Religion. Plaintiffs carryout their speech and charitable works in furtherance of a religious ministry with the goals of serving the community as they are called to by their faith as well as being an example to their faith and sharing that faith with those who want to hear. (findings of fact 159161) As detailed above, posting the sign may reduce LifeCares capacity to serve the community through this ministry and spread their faith by causing potential clients to walk away. (findings of fact 119-121) It will also take away LifeCares ability to start a conversation and build a
relationship with the client in a way that it chooses. LifeCare must choose between speaking the
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governments message and thus limiting its ministry and its control over conversations with clients or not posting a sign and being subject to fines which could be just as detrimental to their religious mission. The Ordinance requires a sign which burdens Plaintiffs ability to freely exercise their faith. As it does so without advancing any compelling state interest (detailed both above and below), the Ordinance violates Plaintiffs rights to free exercise as defended by the United State and Texas Constitutions as well as the Texas Religious Freedom Restoration Act (Tex. Civ. Prac. & Rem. Code 110.001 (2000)) The national RFRA law passed by Congress was a reaction to the decision of Employment Division v. Smith, 494 U.S. 872 (1990). This law required the federal government to follow pre-Smith jurisprudence: no law could burden the free exercise of religion unless a compelling state interest justified the substantial infringement of free exercise rights. Sherbert v. Verner, 374 U.S. 398, 406 (1963), Wisconsin v. Yoder, 406 U.S. 205, 214 (1972). The Texas RFRA and other similar state laws were a reaction to the decision of City of Boerne v. Flores, 521 U.S. 507 (1997) which held the Federal RFRA to be unconstitutional when applied to the states. The Texas RFRA holds the state and municipal governments of Texas to the pre-Smith standard. (Merced v. Kasson, 577 F.3d 578, 587 (5th Cir.2009)) As detailed above, the Ordinance both burdens Plaintiffs free exercise of religion and does not advance a compelling state interest. As such it is a clear violation of pre-Smith constitutional jurisprudence and thus Texas RFRA. Though the Texas RFRA raises the bar for government actions that burden religion, this higher standard is not necessary to find the Ordinance an unconstitutional limit on religious exercise. Following the precedent of Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 See
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U.S. 520 (1993), even after Smith altered the landscape of freedom of religion jurisprudence, a law which is not neutral and generally applicable must meet the compelling interest/least restrictive means test. Church of the Lukumi at 531-537. The Ordinance is not neutral or generally applicable for the same reasons that this law is viewpoint discriminatory. The Ordinance was focused at one class of centers: all groups of individuals of similar religious beliefs who are involved in a specific religious ministry. (findings of fact 114-118) Even though the ordinance may not mention anything directly related to religion or a church, like in Lukumi, its intended and actual effect was to apply to certain individuals involved in a religious practice. (findings of fact 114-118) Not only did the City draft the law to specifically target PRCs, it did so because of a disagreement it had over a religious and moral belief: that of PRCs religious decision to not refer for or provide abortion and some birth control. (Tab A, finding of fact 31) For reasons detailed above, the Ordinance must fail the compelling interest/ least restrictive means test. The City has failed to give any evidence of a compelling interest. The only evidence to back up the claimed interest behind the Ordinance is hearsay reports developed by and supplied to the City by biased organizations, none of which show any actual harm done by PRCs. (finding of fact 62, 63, 65-79, 81-93) If the interest was compelling, the City would have done its own investigation or presented some amount of actual evidence of a problem. Additionally, also detailed above, the Ordinance fails the least restrictive part of the test. The City refused to speak its own message or use some other means to address the issue without compelling speech and burdening the exercise of religion. Even after Employment Division v. Smith changed Supreme Court jurisprudence regarding religious exercise, the Ordinance is still a blatant violation of the 1st amendment
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protection of religious exercise, what some courts have aptly deemed our first freedom. See e.g. Diaz v. Collins, 872 F. Supp. 353, 357 (E.D. Tex. 1994). Having passed a Religious Freedom Restoration Act, the Ordinance is an even clearer violation in Texas than it might be in another state. C. The Ordinance violates the Freedom of Association. The First Amendment to the UNITED STATES CONSTITUTION provides, in relevant part: Congress shall make no law . . . abridging . . . the right of the people to peacefully assemble. The Ordinance imposes an unconstitutional burden on LifeCares freedoms of
association and assembly, insofar as it prohibits LifeCares staff from freely meeting with pregnant women for the purpose of providing its counseling and information unless and until LifeCare complies with the Ordinance. Spelman admitted that it was important that the sign be required outside, so that a potential client could read it before entering. He wanted her to have the option to turn around and leave before a conversation could begin inside. (findings of fact 119-121) For the same reasons the Ordinance fails to meet strict scrutiny to infringe Plaintiffs free speech rights, Defendants have no legitimate or compelling governmental interest in furtherance of the Ordinances burden of LifeCares free association and assembly and have not sufficiently or narrowly tailored in the least restrictive manner to serve such an interest. D. A. The Ordinance violates the 14th Amendment The Ordinance violates Equal Protection
Section 1 of the Fourteenth Amendment to the UNITED STATES CONSTITUTION provides, in relevant part: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person
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of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. For reasons similar to its unconstitutionality as being viewpoint- and content-based, the Ordinance violates LifeCares equal protection rights. The concept of equal protection has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged. Reynolds v. Sims, 377 U.S. 533, 565 (1964). A regulation that discriminates against a disfavored class in the exercise of a fundamental right, like the freedom of speech, violates the Equal Protection Clause unless the Ordinance can survive strict scrutiny. Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976); Clark v. Jeter, 486 U.S. 456, 461 (1988) (classifications affecting fundamental rights are given the most exacting scrutiny). The Ordinance subjects LifeCare but not other, similarly situated entities such as abortion performing or referral facilities that provide information and counseling about pregnancy to severe financial penalties, interference with free speech, and compelled speech. If LifeCare simply agreed to refer for abortions and additional methods of birth control, the restrictions of the 2010 Ordinance would have been inapplicable. (Tab A) Without the inclusion of the
unexplained and wholly irrational phrase maintain a full time practice the 2012 Ordinance would not apply to LifeCare and other similarly situated speakers. (Tab B) As set forth above, the Ordinance discriminates against Plaintiffs based on their pro-life viewpoint and their pregnancy-related speech. The City has not shown a compelling interest to single out those who speak on issues related to pregnancy, especially only those who have prolife views. The Ordinance is also not narrowly tailored, as the City has various options at its disposal that do not discriminate as the Ordinance does. As such, it violates Equal Protection.
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B.
The Ordinance is Unconstitutionally Vague
Vagueness review is more stringent when a law impinges on free speech. Fox Television Stations v. F.C.C., 613 F.3d 317, 328 (2d Cir. 2010) (quoting Perez v. Hoblock, 368 F.3d 166, 175 n.5 (2d Cir. 2004)). It is a basic principle that a law or regulation is void for vagueness if its prohibitions are not clearly defined. Id. at 327 (quoting Piscottano v. Murphy, 511 F.3d 247, 280 (2d Cir. 2007) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108 (1972))). A law or regulation is impermissibly vague if it does not give the person of ordinary intelligence a reasonable opportunity to know what is prohibited. Id. (quoting Farrell v. Burke, 449 F.3d 470, 485 (2d Cir. 2006)). No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. City of Chicago v. Morales, 527 U.S. 41, 56 (1999). Vague laws are impermissible for two reasons. They fail to provide fair notice to potentially regulated entities, and thus inevitably lead citizens to steer far wider of the unlawful zone. Fox Television, 613 F.3d at 328 (quoting Farrell, 449 F.3d at 485). And they create an impermissible risk of discriminatory enforcement [that] impermissibly delegates basic policy matters to [City officials] for resolution on an ad hoc and subjective basis. Id. Granting such discretion creates an unacceptable risk that [] decisions will reflect the officials subjective biases. Fox Television, 613 F.3d at 332 (citing Grayned, 408 U.S. at 10809). No speech regulation can allow[] arbitrary application because it has the potential for becoming a means of suppressing a particular point of view. Forsyth County v. Nationalist Movement, 505 U.S. 123, 130 (1992). [T]his danger is at its zenith when the determination of who may speak and who may not is left to the unbridled discretion of a government official. City of Lakewood v. Plain Dealer Publg Co., 486 U.S. 750, 763 (1988).
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The Ordinance defines Unlicensed Pregnancy Services Centers in part as an organization or facility 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 and requires a sign that must state in part, if the center provides medical services and whether the center is licensed by a state or federal regulatory entity to provide those services. The Ordinance is vague because it does not define the following words or phrases: maintaining a full time practice on site, regulatory entity and licensed. Plaintiff Austin LifeCare appears to fit the definition described in the Ordinance. Licensed medical professionals work and volunteer for LifeCare. LifeCare is authorized by the Clinical Laboratory Improvement Amendments (CLIA) to provide and diagnose pregnancy tests, but LifeCare, as an organization or facility does not have a specific organization or facility license to provide medical services generally or have a license or any kind of specific regulatory authorization to provide ultrasounds or any medical services other than pregnancy tests. It is unclear if the CLIA qualifies HHS as a regulatory entity described by the Ordinance. It is unclear what a medical professional working for LifeCare must do to maintain a full time practice on site at LifeCare. There is no explanation as to how much time or other standards this requires. There is similarly no explanation or guide to know if a medical professional may maintain a practice at several sites. Spelman admitted that beyond a general colloquial definition of full time he did not know what the phrase meant exactly in reference to enforcement of the Ordiance. (Tab B, finding of fact 135-137) Austin LifeCare participates in the Texas Alternative to Abortion Services Program. In order to receive funding from this program, Austin LifeCare must maintain certain standards that are regulated by the Texas Alternative to Abortion Services Program. This program does not
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specifically license Austin LifeCares medical services, but it is unclear if Texas Health and Human Services Commission (THHSC) though its contract with the Texas Pregnancy Care Network (TPCN) qualifies as a state regulatory entity. The Ordinance does not define or give examples of an organization that is or is not licensed or regulated by a state or federal regulatory entity to provide [medical] services. The Ordinance also does not explain what is required when a center provides one or more medical services for which neither a state or federal regulatory license is available or otherwise required for an organization or facility to provide such services by or under the direction and supervision of a licensed health care provider. During the January 26, 2012 Austin City Council Meeting, Councilmember Spelman and Sara Clark both stated that the Ordinance would not apply to PRCs who have licensed professionals supervising all medical procedures without addressing the multitude of vague terms and requirements in the Ordinance. (finding of fact 29) Following these statements, LifeCare is not covered by the Ordinance, but as these are not the individuals tasked with enforcement of the law, a simple statement that it does not apply provides no reliable assurance to LifeCare what the Ordinance requires of it. The vagueness caused by a lack of definitions and explanation and the statements by sponsor of the Ordinance, Bill Spelman and attorney representing the City, Sara Clark affect LifeCare on two levels. First, it is unclear if the Ordinance applies to LifeCare. Second, it is unclear what content is required on a sign if the Ordinance does apply.
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V. Relief Sought A. Permanent Injunction and Repeal For the reasons described above, LifeCare is entitled to permanent injunction enjoining Defendant City of Austin, its agents, employees, and all other persons acting in concert with Defendant City of Austin or any of its agents or employees from enforcing the Ordinance against LifeCare and the complete repeal of the Ordinance. The Ordinance violates LifeCares rights to Free Speech, Religion, and Association. The loss of First Amendment Freedoms . . . constitutes irreparable injury, (quoting Elrod v. Burns, 427 U.S. 347, 373-74 (1976) and LifeCare will continue to suffer this injury until the Ordinance is no longer in effect. Even though the City has made a promise to the Court to not enforce the Ordinance, the very existence of the Ordinance on the books is a burden on LifeCare. Until the Ordinance is repealed or struck down by the Courts it will stand as supposed evidence of the baseless claims used to support the Ordinance and will promote the biased message pushed by NARAL and Planned Parenthood that pregnancy resource centers are harming the community. B. Nominal Damages Plaintiffs seek nominal damages for Defendants violation of the law as described above, including the costs of posting and taking down the sign required by the now Repealed Ordinance and the loss of revenues otherwise reimbursable from the TAASP for services that were never rendered to clients who otherwise would have received such services from LifeCare but for the Ordinance or the now Repealed Ordinance.
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C.
Costs and Reasonable Attorneys Fees LifeCare, as the prevailing party, will seek an award of costs and a reasonable attorneys
fee against Defendant pursuant but not limited to 42 U.S.C. 1988 and Tex. Civ. Prac. & Rem. Code 110.005(a)(4) for the services reasonably required to challenge the constitutionality of the Ordinance and the now Repealed 2010 Ordinance. VI. Conclusion The Ordinance is an unconstitutional burden on the freedoms of speech, association, religion and equal protection and is unconstitutionally vague, and the District Court should grant Plaintiffs the relief sought.
Dated: March 29, 2012 Respectfully submitted, Matthew S. Bowman D.C. Bar No. 993261 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 /s/ Samuel B. Casey Samuel B. Casey, Cal. Bar No. 76022 David Bart Waxman TX Bar No. 24070817 JUBILEE CAMPAIGNLAW 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 Counsel for Plaintiff Austin LifeCare, Inc.
OF COUNSEL: Professor Mark L. Rienzi D.C. Bar No. 494336 COLUMBUS SCHOOL OF LAW THE CATHOLIC UNIV. OF AMERICA 620 Michigan Avenue, N.E. Washington, D.C. 20064 Telephone: (202) 319-4979
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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing PLAINTIFF AUSTIN LIFECARES OPENING TRIAL BRIEF 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:
Casey L. Dobson Sara Wilder Clark Scott, Douglass & McConnico, LLP 600 Congress Avenue Suite 1500 Austin, TX 78701 Email: cdobson@scottdoug.com Email: sclark@scottdoug.com Alice London Bishop London & Dodds PC 3701 Bee Cave Road Suite 200 Austin, TX 78746 Email: alondon@bishoplondon.com
Karen M. Kennard City of Austin Law Department PO Box 1088 Austin, TX 78767-1088 Email: karen.kennard@ci.austin.tx.us Tanya E. Wilder Law Office of Tanya E. Wilder P.O. Box 309 Manor, TX 78653 Email: tanyaewilder@gmail.com
/s/ Samuel B. Casey Samuel B. Casey

Austin Life Care Trial Brief

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Rebuttal Witness 3. Dr. John Thorp, M.D. FACOG 2

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the deposition testimony taken in

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ABORTION SERVICE PROGRAM states: Austin LifeCare is a valuable and much

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It reaches only speakers primarily dealing with one topic

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