Diocese Trial Brief

8/2/2019 Diocese Trial Brief

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IN THE UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

AUSTIN LIFECARE, INC., ROMAN

CATHOLIC DIOCESE OF AUSTIN,CATHOLIC CHARITIES OFCENTRAL TEXAS, AUSTINPREGNANCY RESOURCE CENTER,AND SOUTH AUSTIN PREGNANCYRESOURCE CENTER,

Plaintiffs,

v.

CITY OF AUSTIN,

Defendant.

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

!

PLAINTIFFS ROMAN CATHOLIC DIOCESE OF AUSTIN, CATHOLIC CHARITIES

OF CENTRAL TEXAS, AUSTIN PREGNANCY RESOURCE CENTER, AND SOUTH

AUSTIN PREGNANCY RESOURCE CENTERS OPENING TRIAL BRIEF

Case 1:11-cv-00875-LY Document 88 Filed 03/29/12 Page 1 of 51


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Plaintiffs Roman Catholic Diocese, et al. Opening Trial Brief 2

TABLE OF CONTENTS

I. STATEMENT OF FACTS ....................................................................................................... 5!

A.! The Centers: Gabriel Project Life Center, Austin Pregnancy Resource Center,

and South Austin Pregnancy Resource Center ................................................................... 5!B.! Chapter 10-9 of the Austin City Code: The 2010 Ordinance ............................................. 8!

C.! Repeal of the 2010 Ordinance ........................................................................................... 11!

D.! Chapter 10-10 of the Austin City Code: the 2012 Ordinance ........................................... 12!

II. ARGUMENT .......................................................................................................................... 17!

A.! The 2012 Ordinance forces the Centers to engage in compelled speech andcompelled misleading speech ........................................................................................... 17!

B.! The 2012 Ordinance discriminates based on content and viewpoint ................................ 20!

C.! The Centers are engaging in religious and charitable speech, not commercialspeech ................................................................................................................................ 24!

D.! The Centers are not engaging in Professional Speech ...................................................... 26!

E.! The 2012 Ordinance is unconstitutionally vague and substantially overbroad ................ 30 !

1.! The Ordinance is substantially overbroad................................................................... 30!

2.! The Ordinance is unconstitutionally vague................................................................. 33!

F.! The 2012 Ordinance violates the Fourteenth Amendments Equal ProtectionClause ................................................................................................................................ 34!

G.! The 2012 Ordinance violates Plaintiffs right to the free exercise of religion .................. 36!

H.! The 2012 Ordinance fails strict scrutiny ........................................................................... 40!

1.! Defendant can point to no compelling governmental interest .................................... 40!

2.! The Ordinance cannot be justified based onpost-hoc evidence because itis content-discriminatory on its face ........................................................................... 41!

3.! The Ordinance is not the least restrictive means of furthering any interest ................ 43!

I.! The Ordinance cannot survive lower forms of judicial scrutiny, including

rational basis review ......................................................................................................... 45!

J.! The 2012 Ordinance violates of the right to free speech under article 1, section8, and the right to freedom of religion under article I, section 6 of the TexasConstitution ....................................................................................................................... 46!

K.! The 20121 Ordinance violates Texas Religious Freedom Restoration Act ...................... 48!

III. CONCLUSION ..................................................................................................................... 49!



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TABLE OF AUTHORITIES

!

A.A. v. Needville Indep. Sch. Dist., 611 F.3d 248 (5th Cir. 2010)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#$!

Amidon v. Student Ass'n, 508 F.3d 94 (2d Cir. 2007)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!%%!

Barr v. City of Sinton, 295 S.W.3d 287 (Tex. 2009)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#$!

Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983)!"""""""""""""""""""""""""""""""""""""""""""""""""" """""""""""""""""""""""""""""""""""""""""""""""""" """"""""""!!

Broadrick v. Okla., 413 U.S. 601 (1973)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!%&!

Burson v. Freeman, 504 U.S. 191 (1992)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!%'!

Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557 (1980)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!&'!

Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)!"""""""""""""""""""""""""""""""""""""""""""""""""""" """""""""""""""""""""""""!%()!#*!

City of Boerne v. Florez, 521 U.S. 507 (1997)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#+!

Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#&!

Davenport v. Garcia, 834 S.W.2d 4 (Tex. 1992)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#,)!#()!#$!

Department of Agriculture v. Moreno, 413 U.S. 528 (1973)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" """""""""""""""""""""""""""""""""""""""""""""!#,!

Evergreen Association v. City of New York, 801 F. Supp. 2d 197 (S.D.N.Y. July 13, 2011)!""!')!&+)!)!&,)!&()!&-)!%%)!

#+)!#%!

Ex parte Tucci, 859 S.W.2d 1 (Tex. 1993)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#(!

Frisby v. Schultz, 487 U.S. 474 (1988)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#%!

Grayned v. City of Rockford, 408 U.S. 104 (1972)!""""""""""""""""""""""""""""""""""""""""""""""""""""" """""""""""""""""""""""""""""""""""""""""""""""""" """""""""""""""""""""!%*!

Hill v. Colorado, 530 U.S. 703 (2000)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" """""""""""""""""""""""""""""""""""""""""""""""""" """""""""""""""""""""""""""""""""""""!%%!

Houston v. Hill, 482 U.S. 451 (1987)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!%&!

Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995)!"""""""""""""""""""""""""""""""""""""""!*()!*$!

Lowe v. SEC, 472 U.S. 181 (1985)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!&()!&-)!%+!

Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!%#!

Merced v. Kasson, 577 F.3d 578 (5th Cir. 2009)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#$!

Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!*$!

NAACP v. Button, 371 U.S. 415 (1963)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" """""""""""""""""""""""""""""""""""""""""""""""""" """"""""""""""""""""""""""""""""""!%%!

O'Brien v. Mayor and City Council of Baltimore, 768 F. Supp. 2d 804 (D. Md. 2011) !"""""!')!&+)!&&)!&%)!&,)!%&)!%()!#+)!

#*)!##!

OQuinn v. State Bar of Texas, 763 S.W.2d 397 (Tex. 1988)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#(!

Pacific Gas & Electric Co. v. Public Utilities Comm'n of Cal., 475 U.S. 1 (1986)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""!*()!#(!

Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!&*!Plyler v. Doe, 457 U.S. 202 (1982)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!%#)!%'!

Police Dept. v. Mosley, 408 U.S. 92 (1972)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!&+)!%'!

R.A.V.v. St. Paul, 505 U.S. 377 (1992)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!&+)!&%!

Railroad Retirement Bd. v. Fritz, 449 U.S. 166 (1980)!""""""""""""""""""""""""""""""""""""""""""""""""""""" """""""""""""""""""""""""""""""""""""""""""""""""" """""""""""""!#'!

Riley v. Nat'l Fed'n of Blind, 487 U.S. 781 (1988)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!*$)!&,)!#(!

Romer v. Evans, 517 U.S. 620 (1996)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#')!#,!

Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995)!"""""""""""""""""""""""""""""""""""""""""""""""""" """"""""""""""""""""!&+)!&*!

Simon & Schuster, Inc. v. Members of the New York State Crime Victims Bd., 502 U.S. 105 (1991)!"""""""""""""""""""""""""""""!&+!

Smith v. Goguen, 415 U.S. 566 (1974)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!%%!

Tepeyac v. Montgomery County, 779 F. Supp. 2d 456 (D. Md. 2011) !"""""""""""""""!')!&+)!&%)!&,)!&()!&$)!%+)!%')!#+)!#&)!#%!

Thomas v. Collins, 323 U.S. 516 (1945)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!&$!

Tilton v. Marshall, 925 S.W.2d 672 (Tex. 1996)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#$!

Turner Broad. Sys. v. FCC, 512 U.S. 622 (1994)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!*-)!&+)!#+!United States v. Grace, 461 U.S. 171 (1983)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" """""""""""""""""""""""""""""""""""""""""""""""""" """""""""""""""""""""""""!#&!

United States v. Harriss, 347 U.S. 612 (1954)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!%%!

United States v. Playboy Entm't Group, 529 U.S. 803 (2000)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!&%)!#+)!#%!

United States v. Virginia, 518 U.S. 515 (1996)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""" """""""""""""""""""""""""""""""""""""""""""""""""" """""""""""""""""""""""""!#&!

W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!*$)!%'!

Williams v. Rhodes, 393 U.S. 23 (1968)!"""""""""""""""""""""""""""""""""""""""""""""""""""" """""""""""""""""""""""""""""""""""""""""""""""""" """""""""""""""""""""""""""""""""""!%')!#&!

Wooley v. Maynard, 430 U.S. 705 (1977)!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!*()!*$)!#*!



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On April 8, 2010, the Austin City Council unanimously passed an ordinance enacting

Chapter 10-9 of the Austin City Code (the 2010 Ordinance). The 2010 Ordinance targeted

pregnancy resource centers (PRCs) that have moral and religious viewpoints against abortion

and certain forms of birth control. The 2010 Ordinance unlawfully compelled PRCs to

communicate a false and/or misleading message about services they do not provide. Plaintiffs

are charitable and religious organizations that provide free services and support to pregnant

women and families in need.

On January 26, 2012, the City of Austin, recognizing that the 2010 Ordinance suffered

from Constitutional infirmities, repealed it and passed a new ordinance that adopts Chapter 10-10

of the Austin City Code (the 2012 Ordinance or Ordinance). The 2012 Ordinance, like its

predecessor, forces charitable pregnancy centers, under the threat of criminal penalties, to post

misleading, government-dictated messages concerning their licensing and services. The

Ordinance also targets and discriminates against PRCs based on the content and viewpoint of

their message.

The City of Austin is unlawfully attempting to suppress one side of a contentious social,

ethical, and public debate by subjecting those who speak on a disfavored topic to government

regulations and criminal penalties. The City of Austin passed the ordinances without any

evidence that the Centers have misled or misinformed clients about their services or whether they

are medical facilities, or engaged in deceptive practices of any kind.

The 2012 Ordinance violates Plaintiffs rights under federal and state law, including the

First Amendment rights to free speech and the free exercise of religion; the Fourteenth

Amendment right to equal protection; the right to free speech under article I, 8, of the Texas

Constitution; the right to the free exercise of religion under article I, 6, of the Texas



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Constitution; and the right to religious freedom under the Texas Religious Freedom Restoration

Act, Tex. Civ. Prac. & Rem. Code 110.001 et seq.

Three other federal district courts across the country have struck down similar ordinances

that regulate PRCs by forcing them to engage in compelled speech. In Evergreen Association v.

City of New York, the U.S. District Court for the Southern District of New York preliminarily

enjoined a local law that contained similar disclosures to the Ordinance at issue in this case. The

local law required a pregnancy center to make certain disclosures at its entrance, waiting areas,

advertisements, and oral communications, including whether it has a licensed medical provider

on staff who provides or directly supervises all of the services at the facility. The court held the

law unlawfully compelled speech and was both content- and viewpoint-based. 801 F. Supp. 2d

197 (S.D.N.Y. July 13, 2011). The U.S. District Court for the District of Maryland held in

OBrien v. Mayor and City Council of Baltimore that a Baltimore city ordinance requiring a

pregnancy center to post a sign in its waiting room notifying clients about services that it does

not provide violates the First Amendment, and permanently enjoined its enforcement. 768 F.

Supp. 2d 804, 808, 818 (D. Md. 2011). In Tepeyac v. Montgomery County, the Maryland district

court granted a preliminary injunction, an extraordinary remedy, against part of a Montgomery

County ordinance requiring a pregnancy center to post a sign in its waiting room encouraging

women who are or may be pregnant to consult with a licensed health care provider. The court

held this ordinance unlawfully compelled speech and enjoined its enforcement. 779 F. Supp. 2d

456, 459, 489, 472 (D. Md. 2011).

I. STATEMENT OF FACTS

A.The Centers: Gabriel Project Life Center, Austin Pregnancy Resource Center, andSouth Austin Pregnancy Resource Center

The Gabriel Project Life Center (GPLC), Austin Pregnancy Resource Center



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(APRC), and South Austin Pregnancy Resource Center (APRC) (collectively, the Centers)

are charitable and religious ministries that provide information and services related to pregnancy

and parenting, all free of charge (Stip. Tabs I-K; P-15 at 2-3, 26, 28-29, 60, 62-63). GPLC a

ministry in Catholic Charities of Central Texas, which is the social service arm of the Roman

Catholic Diocese of Austin; the GPLC has been in operation since 2002 and is supported by local

Catholic churches and individuals (Stip. 33). The GPLCs mission is to provide

compassionate, practical, life-affirming alternatives to abortion (P-48 at 4) by providing free

pregnancy tests, mentoring and emotional support, material support (baby items, maternity

clothes, baby clothes, etc.), educational classes, and referrals (Stip. Tab I; P-15 at 18). The GPLC

will make referrals for sonograms, medical assistance (including prenatal care), professional

counseling, and to other community agencies (Stip. Tab I; P-15 at 4-5, 25). Following the

teachings of the Catholic Church, the GPLC holds a religious belief against abortion and

artificial birth control (Catechism of the Catholic Church, 2270-71, 2370) and will not provide

or refer out for these services; it will, however, provide birth control services in the form of

abstinence1 and natural family planning (Stip. 22, 34-35), and will provide information about

abortion from A Womans Right to Know a brochure published by the Texas Department of

State Health Services (P-72).

APRC and SAPRC are separate non-profit, religious ministries2

that have been in

operations since 2005 and 2009, respectively (Stip. 36). Both state that they are an outreach

ministry of Jesus Christ through His church and are financially supported by private individuals

and churches (Stip. Tab M; P-1 1). APRC and SAPRC provide free pregnancy tests, educational

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!1 In the Food and Drug Administrations (FDA) Birth Control Guide, it recommends abstinence as the best

way to avoid pregnancy and sexually transmitted infections (STIs). (P-145).2 Although organized as separate 501(c)(3)s with separate boards and directors, APRC provided SAPRC with

information and support when it was being organized, explaining their similar practices and documents. (Cottone

Dep. 7:2-23.)



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classes, mentoring and individual support, limited sonograms, maternity clothes, and baby items

(Stip. 37; P-15 at 41, 72). Based on their religious beliefs, they will not provide or refer for

abortion (Stip. 22; P-1 at 7), but will provide information on abortion from A Womans

Right to Know, published by the Texas Department of State Health Services (P-72). APRC and

SAPRC do not provide artificial birth control, but will refer married clients to family physicians

for birth control, with the exception of emergency contraception, which they believe can act as

an abortifacient (Stip. 29; P-1 10). Additionally, both centers will provide information on

abstinence, the best way to avoid pregnancy and sexually transmitted infections. FDA Birth

Control Guide (P-145). APRC and SAPRC will provide clients with referrals for medical care

(including prenatal care), professional counseling, STD testing, and other services (Stip. Tabs J,

K; P-1 at 26, 29, 62-63).

The Centers ministries are solely motivated by charitable and religious concerns (Stip.

Tabs I-K; P-1 at 2, 26, 60), and their service to women is a matter of religious exercise.3 The

Mission of Catholic Charities, of which GPLC is a part, is people of faith serving anyone in

need (P-48 at 4), and APRC and SAPRCs Statement of Principles states that they are

committed to presenting the gospel of our Lord to women with crisis pregnanciesboth in

word and deed. (Stip. Tab M, P-1 1) (emphasis added). APRC and SAPRC only receive

funding from private sources, namely individuals and churches. The GPLC receives funding

from Catholic churches, individuals, and the Texas Pregnancy Care Network (TPCN), which is

a non-profit, charitable organization that is committed to assisting organizations that help

women in crisis pregnancies via free and compassionate, practical and life-affirming services.

(Stip. 40). The Texas Health and Human Services Commission provides funds to the TPCN as

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!3 GPLC, APRC and SAPRC state that all activities of [each respective pregnancy center], including non-religious

discussions and activities, are motivated by religious beliefs and are part of [each centers] religious exercise.

(GPLC, APRC, and SAPRC Response to Def.s Req. for Admis. 28).



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part of the Texas Alternative to Abortion Services Program. (Stip. 40).

B.Chapter 10-9 of the Austin City Code: The 2010 OrdinanceOn April 8, 2010, the Austin City Council unanimously passed Ordinance No. 20100408-

027, (the 2010 Ordinance), requiring a limited service pregnancy center to prominently

display a sign on its front entrance setting forth the products and services it does notprovide,

namely abortion and birth control services (Stip. Tab A; P-2 at 10-9-2(A)). The ordinance

required the sign to state: This center does not provide abortions or refer to abortion providers.

This center does not provide or refer to providers of U.S. Food and Drug Administration

approved birth control drugs and medical devices. (Stip. Tab A; P-2 at 10-9-2(A)). The

Ordinance only applied to organizations that provide information on pregnancy from the so-

called pro-life perspective, specifically those who do not provide or refer for abortion and

comprehensive birth control, which includes emergency contraception.4 (Stip. Tab A; P-2 at

10-9-1(C)). Failure to comply with the ordinance was a criminal violation. (Stip. Tab A; P-2 at

10-9-3).

The City clearly and publicly stated its purpose for passing the 2010 Ordinance. In a

press release dated April 2, 2010, the it stated that the 2010 Ordinance is a consumer awareness

measurethat helps women make safe, healthy, informed, and responsible decisions. (Stip. Tab

Q; P-6). The press release went on to state that the ordinance would ensure that women are

informed about the range of services offered by an Austin limited service pregnancy center. Id.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!4 The 2010 Ordinance defined a limited service pregnancy center as an organization or facility that providespregnancy counseling or information as its primary purpose, either for a fee or as a free service; does not provide

Abortions or make referrals to Abortion providers; does not provide Comprehensive Birth Control Services or make

referrals for Comprehensive Birth Control Services; and is not licensed or certified by the state or federalgovernment to provide medical or health care services. (Stip. Tab A; P-2 at 10-9-1(C))

Comprehensive Birth Control Services was defined as alldrugs and medical devices that have been approved by

the U.S. Food and Drug Administration for birth control. (Stip. Tab A; P-2 at 10-9-1(B)) (emphasis added). The

FDA has approved emergency contraception as a form of birth control. Def.s Answer to Pls Am. Compl 20. The

Centers believe that emergency contraception can at as an abortifacient.



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Notably, the Press Release did notstate any other reason for passing the ordinance; there was no

mention that Austin pregnancy centers have in any way been untruthful or misleading about the

services they offer. Additionally, Council Member Spelmans website stated that the 2010

Ordinance require[s] [pregnancy centers] to post signs that say they do not provide or refer for

birth control services or abortion,so that women know if they require those serves that they will

need to seek them elsewhere (Stip. Tab S; P-23 at 3) (emphasis added), affirming the Citys

stated purpose for passing the 2010 Ordinance: consumer awareness.

To support passage of the 2010 Ordinance, the City cited four documents as Additional

Backup Material (P-3): a 2009 Annual Report by the NARAL Pro-Choice Texas Foundation

entitled Taxpayer Financed Crisis Pregnancy Centers in Texas: A Hidden Threat to Womens

Health (2009 NARAL Report) (Stip. Tab F; P-4), a July 2006 report prepared for

Representative Henry A. Waxman by the Special Investigations Division of the United States

House of Representatives Committee on Government ReformMinority Staff (the Waxman

Report) (Stip. Tab E; P-5), a fiscal memo, and a draft of the ordinance.

None of these items offered any evidence that pregnancy centers in Austin had been

untruthful or misleading about their services. Furthermore, during the April 8, 2010 Austin City

Council meeting, no evidence was presented either from the City Council or from any individual

testifying in favor of the Ordinance that any pregnancy center in Austin has been untruthful or

misleading about their services (Stip, Tab C; P-7). The only evidence supporting the 2010

Ordinance that was specific to Austin was the written testimony of Ambrosia Ortiz y Prentice5

(Stip. Tab L; P-8), who stated that she disagreed with the religious viewpoint presented and that

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!5Although she did not disclose this in her written statement, Ms. Ortiz y Prentice serves on the Board of Directors of

NARAL Pro-Choice Texas (P-8), an organization that worked to pass the Ordinance in Austin (see, e.g., P-29; P-30,

P-85). It is therefore not surprising that she disagreed with APRCs religious and (constitutionally protected)

viewpoint against abortion. Additionally, APRC documents each client who receives services from the center

(through its various intake forms), and it has no record of Ms. Ortiz y Prentice ever visiting the center.



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it made her feel uncomfortable; Ms. Ortiz y Prentice did not claim that APRC was dishonest

about the services it provides or was untruthful in any way.Id.

While the evidential record for Defendants provided no information that the Centers were

dishonest, the Centers presented ample evidence demonstrating their transparency and

truthfulness with clients. Representatives of pregnancy centers in Austin testified that they

always provide truthful and accurate information about their services. (Stip. Tab C; P-7). Marie

Seale, Director of the Office of Pro-Life Activities and Chaste Living for the Catholic Diocese of

Austin, testified that the GPLC and its representatives are always honest about the services that

we provides and do not provide. (Stip. Tab C; P-7 at 13:1-2). Ms. Seale provided the City with a

copy of its intake form (P-54), the first thing that a client sees that discloses to clients that the

GPLC is not a medical facility and that [it] do[es] not provide or refer for abortions. (Stip. Tab

C; P-7 at 13:2-7). Terry Williams, the Executive Director of Care Net Austin, testified that Care

Net pregnancy center provides clients with accurate and truthful information including proper

disclaimers to clients stating that the center does not refer for abortions. (Stip. Tab C; P-7 at

18:12, 18:15-18). Both the representative from GPLC and Care Net stated that the centers use A

Womans Right to Know brochure, published by the state, to provide clients with accurate

information on abortion (Stip. Tab C; P-7, 14:21-23, 18:3-6).

In addition to failing to present any evidence that the pregnancy centers in Austin have

been untruthful about their services, the Waxman and 2009 NARAL reports both exhibit hostility

towards pregnancy centers and their religious viewpoint against abortion. (Stip. Tabs E, F; P-4,

P-5). The 2009 NARAL Report faults pregnancy centers for having the express purpose of

persuading pregnant teenagers and women seeking services for unexpected pregnancies to opt

for motherhood and adoption and accuses them of having the express purpose of interfering



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with pregnant teenagers and women who are seeking comprehensive womens healthcare. (Stip.

Tab F; P-4 at 15, 17). The NARAL Report calls pregnancy centers biased and anti-choice,

and states that their primary purpose is to advance an ideological, political, and religious

agenda. (Stip. Tab F; P-4 at 23). It accuses pregnancy centers of having a controversial

history and a religious, anti-choice mission such as shar[ing] Gods gift of eternal life

through Jesus Christ with women in crisis pregnancies by ministering to the physical,

emotional, and spiritual needs of women .Id.

The Waxman Report criticizes pregnancy centers because they are virtually always 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. (Stip. Tab E; P-5 at 1). It concludes by accusing pregnancy centers of engaging in

tactic[s] [that] may be effective in frightening pregnant teenagers and women and discouraging

abortion. (Stip. Tab E; P-5 at 14).

C.Repeal of the 2010 OrdinanceOn January 26, 2012, after Plaintiffs brought a lawsuit challenging the constitutionality of

the 2010 Ordinance, claiming inter alia that the 2010 Ordinance required compelled false

speech, and three federal court decisions6 found similar ordinance to be unconstitutional, the City

passed Ordinance Number 20120126-017, An Ordinance Repealing Chapter 10-9 of the City

Code. (P-19). One of the supporting materials (P-18) for the ordinance stated:

The Law Department recommends repeal of the ordinance. At the time the City Council passed the

ordinance in 2010, there were no court decisions ruling on the constitutionality of similar ordinances.Subsequent to its passage, federal courts in other parts of the country have ruled that certain language in

this type of ordinance is unconstitutional. Those court decisions have been appealed, and it is likely the

U.S. Supreme Court will be asked to address the constitutionality of this type of ordinance. The City of

Austin has also been sued following issuance of the court rulings, and the Law Department recommends

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!6O'Brien v. Mayor and City Council of Baltimore, 768 F. Supp. 2d 804 (D. Md. 2011); Tepeyac v. Montgomery

County, 779 F. Supp. 2d 456 (D. Md. 2011); Evergreen Association v. City of New York, 801 F. Supp. 2d 197

(S.D.N.Y. 2011).



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repeal of the ordinance to avoid further litigation costs.

D.Chapter 10-10 of the Austin City Code: the 2012 OrdinanceOn January 26, 2012, the same day the City repealed the 2010 Ordinance, the Austin City

Council unanimously passed ordinance No. 20120126 An Ordinance Amending the City Code

to Add Chapter 10-10 to Require Signs at Unlicensed Pregnancy Service Centers; Creating an

Offense and Imposing a Penalty (2012 Ordinance or the Ordinance) (Stip. Tab B; P-19).

The 2012 Ordinance requires unlicensed pregnancy service centers to prominently

display a black and white sign, in English and in Spanish, affixed to the entrance of the center so

that the sign is conspicuously visible to a person entering the center, that accurately discloses the

following information: (1) whether the center provides medical services[;] (2) if the center

provides medical services, whether all medical services are provided under direction and

supervision of a licensed health care provider; and (3) if the center provides medical services,

whether the center is licensed by a state or federal regulatory entity to provide those services.

(Stip. Tab. B; P-19). Regarding the third required disclaimer, the City stipulated that there is no

license a pregnancy center can obtain from a state or federal regulatory entity for only providing

sonograms and pregnancy diagnoses. (Stip. 25).

An Unlicensed pregnancy service center was defined as an organization or facility

that: as its primary purpose, provides pregnancy related services, including pregnancy testing and

options counseling; and does not have a health care provider that is licensed by a state or federal

regulatory entity maintaining a full time practice on site. (Stip. Tab. B; P-19 at 10-10-1(1)).

The 2012 Ordinance states that Medical Service includes, without limitation, diagnosing

pregnancy or performing a sonogram. (Stip. Tab. B; P-19 10-10-1(2)). The ordinance is



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enforced with criminal penalties.7

The City stipulated that the 2012 Ordinance compels speech and mandates the timing

and content of Plaintiffs speech, by requiring the sign specified in the Ordinance. (Stip. 20).

City further stipulated that the 2012 Ordinance only applies to speakers who discuss the topic of

pregnancy (Stip. 16). Additionally, the City stipulated that even though the Ordinances

language appears viewpoint neutral, that 2012 Ordinance was designed to apply to the same

centers as the 2010 Ordinance, those who do not provide or refer for abortion and comprehensive

birth control services (Stip. 4), so it is in fact viewpoint-based. Additionally, the City admitted

that it drafted the definition of a pregnancy center to only target the narrow class of pregnancy

centers, and no other organizations (Spelman Depo. 83:4-15). The City stipulated that [t]here is

no requirement that a [center] has committed any wrongdoing to be regulated by the 2012

Ordinance (Stip. 18) so even centers whose practices are flawless are subject to regulation and

criminal penalties. Lastly, the City stipulated that the 2012 Ordinance only applies to

organizations that do not have a health care provider who maintains a full time practice on site.

Organizations that have a health care provider who supervises all medical services, as defined

in the Ordinance, still must post the disclaimer if the practice isnt full time. (Stip. 17).

Attached to the item, the City Council had ten documents as Supporting Materials: the

text of a draft ordinance (Draft Ordinance) (P-13), which was different than the ordinance

ultimately passed8; Item from Council; March 2011 NARAL Pro-Choice Texas Foundation

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!7 An owner or operator commits an offense if the owner or operator violates [the 2012 Ordinance]. An offense

under this article shall be punished by a fine of not less than $250 for the first offense, not less than $350 for a

second offense, and not less than $450 for a third or succeeding offense. A culpable mental state is not required, andneed not be proved, for an offense under this chapter. (Stip. Tab. B; P-19 at 10-10-3).8 The City admitted that [i]t was never mentioned during the City Council meeting that a different version of

Chapter 10-10 was being substituted or enacted. The new language of Chapter 10-10 was never read during the City

Council meeting. (Def.s Answer to Pls. Am. Compl. 78).



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Report entitled The Texas Alternatives to Abortion Program: Bad Health Policy, Bad Fiscal

Policy (2011 NARAL Report,) (Stip. Tab G; P-14); Texas Pregnancy Care Networks

financial statements from 2007-09; an Agreement between the Health and Human Services

Commission and Texas Pregnancy Care Network for Program and Administrative Services; and

five Texas Alternative to Abortion Services Program Quarterly Status Reports. (Stip. 8; P-11).

None of these documents provided as supporting material evidenced that any of the

Austin pregnancy centers have misrepresented or mislead their clients about whether they are

medical facilities or have engaged in any other deceptive practices concerning their services.

Additionally, no one from the public testifying in favor of the 2012 Ordinance stated that any

Austin pregnancy center had misrepresented their services to clients or committed any other

wrongdoings (Stip. Tab D; P-20).

Furthermore, the 2011 NARAL Report, which the City publically posted as a supporting

material for the 2012 Ordinance exhibits hostility towards the religious viewpoint against

abortion. It states that the Alternatives to Abortion Program is wasteful and inefficient because

it uses money to purchase materials produced by religious organizations. (Stip. Tab G; P-14 at

2). It goes on to fault pregnancy centers for using literature from religious organizations

and from ordering materials from religious sources such as Loving and Caring, Inc. (whose

mission is to pray and work towards keeping the pro-life community holy and seeking the face

of God). (Stip. Tab G; P-14 at 6). The 2011 NARAL Report criticizes one unnamed pregnancy

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

The Draft Ordinance defines a Limited Service Pregnancy Center as an organization or facility that: as itsprimary purpose, provides pregnancy related services, such as pregnancy testing or options counseling; does not

provide Abortions or make referrals to Abortion providers; does not provide Comprehensive Birth Control Services

or make referrals for Comprehensive Birth Control Services[;] and is not licensed or regulated by a state or federal

regulatory entity to provide medical services. P-13 at 10-10-1 (C) (emphasis added). The Draft Ordinance, like the2010 Ordinance, targeted organizations that spoke about the topic of pregnancy from the pro-life perspective: those

that did not refer for abortion and comprehensive birth control. The language changed from the Draft Ordinance

(which specifically only applied to centers that do not provide or refer for abortion and comprehensive birth control)

to the 2012 Ordinance on the advice of [the Citys] attorneys (Spelman Dep. 86:8-10).



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center in San Antonio for providing religious references. (Stip. Tab G; P-14 at 6). The Report

further describes pregnancy centers as independentoften church-affiliatedorganizations that

offer limited counseling services. [They] regularly provide biased and frequently inaccurate

information about the supposed risks (both spiritualand physical) of safe and legal abortion

care, contraception, premarital sex, and other subjects. (Stip. Tab G; P-14 at 7) (emphasis

added). The 2011 NARAL Report criticizes an unnamed center for an alleged interaction

between a young woman and a pregnancy volunteer where the volunteer discussed what she

understood as the spiritual consequences of pre-martial sex; the report called this false

information and scare tactics. (Stip. Tab G; P-14 at 8) (emphasis added). The report faulted

pregnancy centers for offering either prayer or religious counseling and maintaining

connections to Care Net, a national organization working to promote a culture where lives are

transformed by the Gospel of Jesus Christ.9 (Stip. Tab G; P-14 at 8).

The City stipulated that the 2012 Ordinance was created to achieve the same goals, in

whole or in part, as the 2010 Ordinance (Stip. 4), namely consumer protection and

consume awareness. (Spelman Dep. 36:2-3; Stip. Tab R; P-17). Council Member Spelman, the

Sponsor of the 2012 Ordinance, stated the purpose: This is a consumer awareness issue. I still

believe that it is important for women to have as much information about these businesses as

possible. (Stip. Tab R; P-17).10

During the Council Meeting, each City Council member

stated the reasons for passing the Ordinance. Each Council Member only stated vague

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!9 The 2011 NARAL report incorrectly states that maintaining ties to a Christian organization and offering religioushelp violates the Charitable Choice Act. The Charitable Choice Act requires that religious activates be separate in

time or location from federally funded activities, but does notrequire that groups receiving funds not be religious or

have no ties to religious groups (indeed, it is a violation of the act if the government discriminated against groupsthat are religious in nature). The act further allows clients to voluntarily participate in religious activities. 45 C.F.R.

260.34 (b)-(c).10 During the City Council meeting, Council Member Spelman stated in reference to the Draft Ordinance, All were

doing is asking people to tell the truth. Stip. Tab D; P-20.



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justifications, not tied to any facts in the record demonstrating that the Austin centers had

committed any wrongdoings. Specifically the Council Members stated the 2012 Ordinance

furthers womens rights, information rights, transparency and mak[es] sure groups do not

mislead or misinform (Stip. D; P-20, 46:18-19, 47:23, 48:15-16). Only Council Member

Spelman made a statement about facts in the record when he stated that the information in the

backup to this motion, which I think all of us have had access to for several daysdocument[s]

that many crisis pregnancy centers in Austin, Texas [have] posed significant problems for a

large number of women for a long period of time. (Stip. D; P-20, 50:3-8). However, nothing in

the backup information stated that any of the Austin centers had harmed women in any way;

specifically, nothing in the backup information stated that any Austin center had misrepresented

the nature of their services to any client, including whether they are medical facilities. Spelman

incorrectly thought that the 2011 NARAL Report studied pregnancy centers in Austin. (Spel.

Dep. 151:20 -152:9). The City has admitted, however, that [t]here is no evidence in the 2011

NARAL Report that any of the Austin pregnancy centers have misrepresented or mislead their

clients about whether they are medical facilities or engaged in any other deceptive practices

concerning their services. (Def.s Answer to Pls. Am. Compl. 54).

Contrasted to the Citys complete lack of evidence showing that pregnancy centers are

misleading clients about their services, the Plaintiffs submitted scores of documents proving their

truthfulness regarding their services. The information included copies of intake forms, release

forms, disclaimers, and referrals provided to clients, including medical referrals. The information

submitted to the City Council stated that each Center is always upfront and truthful with clients

about the scope of services and client confidentiality. (Stip. Tabs I-K; P-15). Specifically, the

information submitted to the Council demonstrated that each Center discloses to its clients that it



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is not a medical facility (Stip. Tabs I-K; P-15 at 7, 9, 32, 34, 6611) and refers clients to medical

facilities for medical care (Stip. Tabs I-K; P-15 at 4-5, 25, 41, 43, 52-59, 72, 76, 84-8512).

Furthermore, the Centers submission showed that all of their advertisements are truthful (Stip.

Tabs I-K; P-15 at 23, 36 8, 40-41, 48, 50, 71-72).

II. ARGUMENT

The 2012 Ordinance violates the Plaintiffs federal constitutional rights to be free from

compelled misleading speech, content- and viewpoint- based discrimination, regulations that are

substantially overbroad and vague, violate equal protection, and infringe on the free exercise of

religion. Furthermore, the 2012 Ordinance violates the Plaintiffs Texas Constitutional claims for

freedom of speech and religion, and their state statutory claim under the Texas Religious

Freedom Restoration Act.

A.The 2012 Ordinance forces the Centers to engage in compelled speech andcompelled misleading speech

The City admits that the 2012 Ordinance compels speech and mandates the timing and

content of Plaintiffs speech, by requiring the sign specified in the Ordinance (Stip. 20).

[O]ne important manifestation of the principle of free speech is that one who chooses to speak

may also decide what not to say,Hurley v. Irish-American Gay, Lesbian & Bisexual Group of

Boston, 515 U.S. 557, 573 (1995) (quoting Pacific Gas & Electric Co. v. Public Utilities

Comm'n of Cal., 475 U.S. 1, 11 (1986));see alsoWooley v. Maynard, 430 U.S. 705, 714, (1977)

("A system which secures the right to proselytize religious, political, and ideological causes must

also guarantee the concomitant right to decline to foster such concepts."). It is well-established

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!11 GPLC Request for Services Form; GPLC Statement of Self-Administered Pregnancy Test; APRC New ClientRequest for Services; APRC Return Client Request for Services; SAPRC New Client Request for Services.

12 GPLC refers clients to the John Paul II Life Center for Sonograms and to the Vitae Clinic or St. Davids for

prenatal medical care; APRC and SAPRC make referrals to over fifteeen various hospitals, clinics, dentists and

physicians for medical care, including prenatal care.



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that the government cannot compel one to recite a government-dictated message or host another

speakers message. Pacific Gas & Electric Co., 475 U.S. 1 (1986) (plurality opinion)

(compelling corporation to include third-party speech in billing envelopes violates First

Amendment); Wooley v. Maynard, 430 U.S. 705 (1977) (compelling citizen to display license

plate containing state motto with which he disagrees violates the First Amendment); Miami

Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974) (compelling newspaper to publish a

reply-piece by a candidate violates First Amendment); W. Va. State Bd. of Educ. v. Barnette, 319

U.S. 624 (1943) (compelling schoolchildren to salute flag and recite pledge violates First

Amendment).

Even if the Ordinance compelled only true statements, it could not withstand

constitutional review. SeeHurley, 515 U.S. at 573-74 (The government may not compel

affirmance of a belief with which the speaker disagrees.Indeed, this general rule, that the

speaker has the right to tailor the speech, appliesequally to statements of fact.); Riley v.

Natl Fedn of Blind, 487 U.S. 781, 797-98 (1988) (striking down a state law requiring factual

disclosures). The Ordinance is even more harmful and constitutionally suspect because it

compels misleadingstatements.

APRC and SAPRC representatives provide limited sonograms, but do not diagnose

pregnancy (Stip. Tabs J-K; P-15 at 32, 34, 38, 66, 68). Under the 2012 Ordinance, performing a

sonogram is deemed a medical service (Stip. Tab B; P-19 at 10-10-1(2)) and both centers

therefore have to post a sign at their entrance stating that they provide[] medical services.

(Stip. Tab B; P-19 at 10-10-2(A)(1)). However, APRC and SAPRC communicate to clients,

both orally and in writing, that they are not medical facilities and make referrals to hospitals,

clinics, and physicians for the provision of medical services. (P-15 at 26-30; 32, 34, 41, 43, 52-



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59, 60-64, 66, 68, 72, 76, 84-85; P-57 at 8). Forcing APRC and SAPRC to state that they

provide medial services directly conflicts with what they communicate to clients, and will

ultimately mislead clients to think that these two centers are medical facilities, when they are not.

Additionally, the 2012 Ordinance requires APRC and SAPRC to state that they are not

licensed by a state or federal regulatory entity to provide medical services. (Stip. Tab B; P-19 at

10-10-2(A)(3)). However, as the City stipulated, [t]here is no license a pregnancy center can

obtain from a state or federal regulatory entity for only providing sonograms and pregnancy

diagnoses. (Stip. 25). The 2012 Ordinance therefore requires the Center to state that they do

not have a license that is impossible for them to obtain. The 2012 Ordinance therefore forces

APRC and SAPRC to deliver the implied and misleading message that their services are not up

to state licensing standards, even though they are in full compliance with all applicable laws.

The 2012 Ordinance requires GPLC to state that it does not provide medical services.

Although the GPLC does not provide medical services in-house, it attempts to makes referrals to

the Vitae Clinic13 or other medical facilities that are in line with the Catholic Churchs teaching

on abortion and birth control (Stip. Tab I; P-15 at 5, 25) as part of its religious ministry. Ensuring

that women receive medical care, especially medical care that respects Catholic doctrine, is one

of the GPLCs primary objectives. By mandating that the Gabriel Project post the disclaimer

sign, the Defendant is forcing it to deliver the implied, misleading message that it does not

provide access or information on how women can obtain medical care.

Government action that requires the utterance of a particular message favored by the

Government, contravenes this essential right [to freedom of expression]. Turner Broad. Sys. v.

FCC, 512 U.S. 622, 641 (1994). Laws of this sort pose the inherent risk that the Government

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!13 Through the prayers of many and the support of the John Paul II Life Center, the Vitae Clinic opened its clinic

doors in October of 2010 to provide women with excellence in healthcare while promoting the Culture of Life.

http://www.vitaeaustin.com/About.html



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seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information

or manipulate the public debate through coercion rather than persuasion. These restrictions raise

the specter that the Government may effectively drive certain ideas or viewpoints from the

marketplace. Id. (quoting Simon & Schuster, Inc. v. Members of the New York State Crime

Victims Bd., 502 U.S. 105, 116 (1991)). Although Plaintiffs speech may be politically unpopular

in Austin, it is nevertheless entitled to full protections under the First Amendment, and

Defendant cannot seek to stifle it through regulations.

All three federal district courts to evaluate similar ordinances compelling pregnancy

centers to post disclaimers have found them to be a form of compelled speech subject to strict

scrutiny, regardless if the required disclosures are factual. OBrien, 768 F. Supp. 2d at 812, 816-

17; Tepeyac, 779 F. Supp. 2d at 463, 471; Evergreen, 801 F.Supp.2d at 203-04, 206-07. As

outlined in Section II.H infra, the Ordinance fails strict scrutiny and is thus unconstitutional.

B.The 2012 Ordinance discriminates based on content and viewpointIt is axiomatic that the government cannot regulate speech based on its content or

viewpoint. Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 828 (1995).

[A]bove all else, the First Amendment means that government has no power to restrict

expression because of its message, its ideas, its subject matter, or its content. Police Dept. v.

Mosley, 408 U.S. 92, 95 (1972). Indeed, [c]ontent-based regulations are presumptively invalid.

R.A.V.v. St. Paul, 505 U.S. 377, 382 (1992).

The Defendant stipulated that the 2012 Ordinance only applies to speakers who discuss

the topic of pregnancy. (Stip. 16). Indeed, only an organization or facility that, as its primary

purpose, provides pregnancy related services, including pregnancy testing and options

counseling and does not have a health care provider maintaining a full time practice on site

must post the disclaimers. (Stip. Tab B at 10-10-1(1)). Defendant has not required organizations



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that speak on any other topic to make such a disclosure; if the Centers primary purpose were to

address cancer, sexually transmitted diseases, vaccines, or any other subject, they would not be

subject to the Ordinance. The Ordinance singles out the Centers because they choose to provide

information and services related to the topic of pregnancy and is therefore a presumptively-

invalid, content-based restriction.

Even worse, the Ordinance further targets speech based on the particular viewpoint

expressed. When the government targets not subject matter, but particular views taken by

speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint

discrimination is thus an egregious form of content discrimination. Rosenberger, 515 U.S. at

829; Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1132 (2009) (Restrictions based on

viewpoint are [] prohibited.). Defendant stipulated that the 2012 Ordinance was designed to

apply to the same centers as the 2010 Ordinance, those who do not provide or refer for abortion

and comprehensive birth control services. (Stip. 4). Furthermore, as the history of the

Ordinance demonstrates, the Defendant intentionally drafted it to only target centers that hold a

viewpoint against abortion and comprehensive birth control.14 Furthermore, the Defendants

supporting materials demonstrate hostility toward one viewpoint15 and Council Member

Spelman stated that pregnancy centers are a brainwashing outfit. (P-78, Transcript of NARAL

video at 3:6-9), despite his testimony he has never been to a pregnancy center or spoken to a

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!14 The now-repealed Chapter 10-9 and the first draft of Chapter 10-10 on their faces only applied to one viewpoint.Furthermore, the current Ordinance was gerrymandered to apply to one viewpoint; the requirement that a health care

provider maintain a full time practice on site shows that the Defendants intent is to only regulate pregnancycenters that primarily provide information and referrals to clients, as opposed to abortion clinics who primarily

provide medical services.15 The three reports that evidence hostility to the pro-life, religious viewpoint are the 2009 NARAL Report, the

Waxman Report, and the 2011 NARAL Report. The 2009 NARAL report calls pregnancy centers biased andanti-choice, and states that their primary purpose is to advance an ideological, political, and religious agenda.

(Stip. Tab F; P-4). The 2011 NARAL report criticizes pregnancy centers for using religious, pro-life literature. (Stip.

Tab G; P-14). The Waxman Report faults pregnancy centers because they are virtually always pro-life

organizations whose goal is to persuade teenagers and women with unplanned pregnancies to choose motherhood or

adoption. (Stip. Tab E; P-5).



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senior staff member of a pregnancy center (Spelman Dep. 25:15-21). In OBrien, the court found

it probative that the government described the pregnancy centers speech as propaganda, and

stated that [s]uch descriptions can only support the conclusion that Defendants enacted the

Ordinance out of disagreement with Plaintiffs viewpoints on abortion and birth-control. 768 F.

Supp. 2d at 816. In the same way, the hostile reports cited by the Defendant, Spelmans

characterization of the centers, and the gerrymandered language of the Ordinance can only lead

to the conclusion that Defendant passed the Ordinance due to its disagreement with the Centers

viewpoint.

Additionally, emails from the City of Austin show that the City was targeting the

Plaintiffs because they disagreed with their position on abortion and comprehensive birth

control. Prior to the drafting of the 2010 Ordinance, emails between City employees and others

list each center in Austin by name, showing they were targeted (P-26, P-27, P-28). An email

stated that the Baltimore Ordinance (the model for Austins 2010 Ordinance16) was criticized

because it only applied to one viewpoint; the email went on state If we wrote our own

disclosure [for pro-choice facilities] and include it we diminish that criticism and seem

reasonable, that of course may not be the goal, we may want to just flex our muscle in Travis

County and say to [sic] damn bad we have the power and this is what we want. (P-30); the City

ultimately decided to only target pro-life centers. At one point, the City was considering

including a phone number on the signs that would direct women to pro-choice facilities (P-32)

and it was stated by one of the Citys Womens Commissioners17 Id like to impact of [sic] this

proposal to add a list of C[ity] O[f] A[ustin]-contracted agencies which provide pregnancy

services (inc[luding] abo[rtion] and b[irth] c[ontrol]). I think our general goal (personally and

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!16 P-32; P-33; P-34.17 Laurie Felker Jones is Council Member Spelmans appointment to the Citys Commission for Women (Spelman

Dep. 140:18-141:13).



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politically) is so get women to a place where they can get what they need: terminate if they

choose, plan for a spaced pregnancy by getting repro[ductive] health care and b[irth]

c[ontrol] (P-32 at 2-3). At one point, the City considered using 2-1-118 as a referral number

they could put on the signs. However, when the City discovered that 2-1-1 refers to both

pregnancy centers and abortion clinics, it found this option to unacceptable. (P-35). Specifically,

the City stated Our intern called 211, and we discovered that they refer women to CPCs, as well

as to places that offer comprehensive services/non-directive counseling. [I]f you dont

SPECIFICALLY ask for family planning or abortion, you get referred to ALL the agencies from

Planned Parenthood to Lifecare.[We] would really prefer to be able to refer women

somewhere for referrals and comprehensive options counseling on the signs, and [] 211 does not

appear to be the answer (P-35). The City found it unacceptable that 2-1-1 presented all

choices to women; it only wanted women to have information on places that provide abortion

services and not places that provide alternatives to abortion.19 This type of viewpoint

discrimination is unconstitutional. R. A. V. v. St. Paul, 505 U.S. 377, 391 (1992) (The First

Amendment does not permit [the government] to impose special prohibitions on those speakers

who express views on disfavored subjects.).

In both OBrien and Tepeyac, the courts found that similar ordinances were viewpoint

and/or content discriminatory. OBrien, 768 F. Supp. 2d at 816; Tepeyac , 779 F. Supp. 2d at 462

& n.5. Because it is content and viewpoint discriminatory, the Ordinance is presumptively

unconstitutional, and can only stand if the government proves that it satisfies strict scrutiny.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!18 2-1-1 is a service of the United Way (P-37). The 2-1-1 Texas community resource database contains detailedinformation about available health and human services provided by government agencies, nonprofit organizations,

and faith-based entities serving the residents of our 10-conty service area (2-1-1 Texas Info Sheet, P- 35 at 2).19 Additionally, the City also rejected Austins 3-1-1 service (which allows individuals to request social services

over the phone) as a number to put on the signs because it refers to 2-1-1 and would provide women with all

referrals, to both PRCs and abortion clinics. (P-37).



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United States v. Playboy Entmt Group, 529 U.S. 803, 813 (2000). The Ordinance cannot meet

this high standard,see Section II.H. infra.

C.The Centers are engaging in religious and charitable speech, not commercial speechThe PRCs are engaging in protected, non-commercial expression. Commercial speech is

defined as speech proposing a commercial transaction. Bolger v. Youngs Drug Prods. Corp.,

463 U.S. 60, 64 (1983). [A]n organization does not propose a commercial transaction simply

by offering a good or service that has economic value. Rather, a commercial transaction is an

exchange undertaken for some commercial purpose[.]Evergreen Ass'n, 801 F. Supp. 2d at 205

(emphasis added). The PRCs are notmotivated by profits or economic incentives but by their

sincerely-held religious beliefs. Furthermore, they do not enter into any sort of commercial

transactions with the women and families they serve; all of their products and services are free of

charge. The PRCs are therefore properly classified as ministries engaged in fully-protected

religious speech; not businesses engaging in commercial speech. Indeed, APRC and SAPRC are

each an outreach ministry of Jesus Christ through His Church. (Stip. Tab M; P-1 at 1). The

GPLC is a ministry of the Roman Catholic Diocese of Austin and Catholic Charities of Central

Texas that exists to be pastoral by meeting both the spiritual and material needs of women and

families. (see P-48 at 3, 4).

It is totally irrelevant that the Centers provide their clients with free goods and services

that the clients would otherwise have to purchase. As the Evergreen decision pointed out when

enjoining a similar ordinance regulating PRCs:

If speech becomes commercial speech merely through the offer of a valuable good or service, then any

house of worship offering their congregants sacramental wine, communion wafers, prayer beads, or other

objects with commercial value, would find their accompanying speech subject to diminished constitutional

protection. Likewise, a domestic violence organization advertising shelter to an abuse victim would find its

First Amendment rights curtailed, since the provision of housing confers an economic benefit on therecipient. But plainly speech by a church or domestic violence organization is not undertaken for a

commercial purpose. For the same reasons, the offer of free services such as pregnancy tests in furtherance

of a religious belief does not propose a commercial transaction. Adoption of [the argument that offering



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goods and services transforms speech to commercial speech] would represent a breathtaking expansion of

the commercial speech doctrine.

801 F. Supp. 2d at 205 (internal quotations and citations removed).

Moreover, commercial speech [is] expression relatedsolely to the economic interests of

the speaker and its audience. Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S.

557, 561 (1980) (emphasis added). As stated above, the expression of the PRCs is wholly related

to and motivated by religious and charitable interests. Defendant has previously asserted that the

GPLC engages in commercial speech because some of its activities are reimbursed by the

government through the TPCN. Receiving government reimbursement does not mean that the

GPLC is engaging in their speech for a commercial purpose. Indeed, of all GPLCs client visits

more than half are not eligible for reimbursement through TPCN.20 Additionally, the GPLC is

not reimbursed for pregnancy tests (Skinner Dep. 89:1823), one of GPLCs services and one

that it heavily advertises. (P-47, P-51). When the GPLC is reimbursed for material goods, the

reimbursement is limited to ten dollars per distribution of clothing, food, or furniture (Skinner

Dep. 80:2381:14) and up to four times per client (Skinner Dep. 82:46). One distribution is

typically five to seven outfits (not pieces) or a bag full of food (Skinner Dep. 82:1215, 83:12

14), which likely costs much more than the reimbursement that GPLC receives. If GPLC were

concerned about its economic interest, it would not provide help primarily to persons whose

provision cannot be reimbursed, heavily advertise a service that cannot be reimbursed, and

distribute five to seven whole outfits for a reimbursement of only ten dollars, when GPLC would

receive the same reimbursement for only one outfit.

But, even assuming arguendo that the PRCs speech contains some commercial elements,

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!20 51.18% of all GPLC client visits since January 1, 2010 were not eligible for reimbursement through TPCN. The

GPLC serves both undocumented immigrants and those here with proper documentation. Because TPCN does not

reimburse for undocumented immigrants, and a large percentage of the GPLCs clientele is undocumented, more

than half of all client visits are ineligible for reimbursement.



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it would still receive the full protection of the First Amendment due to the intertwined religious

and charitable speech. The Supreme Court stated, We do not believe that the speech retains its

commercial character when it is inextricably intertwined with otherwise fully protected

speech. [W]e cannot parcel out the speech, applying one test to one phrase and another test to

another phrase. Riley v. Natl Fedn of Blind, 487 U.S. 781, 796 (1988) (recognizing that

charitable solicitation is typically informative and persuasive speech, and therefore fully

protected expression).

The Centers speech is protected, non-commercial expression. Indeed, three federal

district courts evaluating similar ordinances concerning pregnancy centers have all held that their

speech is improperly classified as commercial expression and therefore entitled to full protection.

Evergreen Ass'n, 801 F. Supp. 2d at 204-05; Tepeyac, 779 F. Supp. 2d at 463; O'Brien, 768 F.

Supp. 2d at 813.

D.The Centers are not engaging in Professional SpeechDefendant have argued that even though the Ordinance compels speech, it is not subject

to strict scrutiny because the Centers are engaging in professional speech by addressing topics

related to health such as pregnancy. Def.s Mot. Dismiss 11-15. Two other federal district courts

have evaluated whether the speech of virtually identical pregnancy resource centers should be

classified as professional speech, and both have rejected the argument. In Tepeyac, the District

Court for the District of Maryland held that even if the broadest interpretation of the

professional speech doctrine is applied a pregnancy center that provides free information and

services related to pregnancy, including confidential discussion of pregnancy options is not

engaging in professional speech. 779 F. Supp. 2d at 467-68. Likewise, the District Court for the

Southern District of New York held in Evergreen Association that a pregnancy center that

offers obstetric ultrasounds, obstetric sonograms or prenatal care[,] or (2) has the appearance of



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a licensed medical facility,"21 and meets with the client individually for pregnancy

counseling,22 does not engage in professional speech. 801 F. Supp. 2d at 20002, 2223. The

Centers in this case are indistinguishable from the ones at issue in Tepeyac andEvergreen,23 and

this court should likewise find that their speech is not professional speech and therefore entitled

to the fullest protections of the First Amendment.

A regulation burdening professional speech is subject to a lower level of scrutiny because

it is merely a regulation of a profession with incidental effects on speech. Tepeyac, 779 F.

Supp. 2d at 467. The government may properly restrict entry into professions and vocations

through licensing schemes, and the regulation of a professionals speech is inherently tied to the

governments authority to regulate the profession. Lowe v. SEC, 472 U.S. 181, 229 (1985)

(White, J., concurring). [B]urdens on professional speech are more susceptible to disclosure

requirements in light of the government's interest in regulating the underlying profession.

Tepeyac, 779 F. Supp. 2d at 465-466 (emphasis added); see alsoLowe, 472 U.S. at 232 (White,

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!21The following factors are among the factors that shall be considered in determining whether a facility has the

appearance of a licensed medical facility:[whether the facility] (a) offers pregnancy testing and/or pregnancydiagnosis; (b) has staff or volunteers who wear medical attire or uniforms; (c) contains one or more examination

tables; (d) contains a private or semi-private room or area containing medical supplies and/or medical instruments;

(e) has staff or volunteers who collect health insurance information from clients; and (f) is located on the same

premises as a licensed medical facility or provider or shares space with a licensed medical provider. Evergreen

Ass'n, 801 F. Supp. 2d at 200.22 Both the Tepeyac and the EvergreenAssociation courts explicitly rejected the argument that advice given in the

form of information in a one-on-one setting transforms the speech into professional speech. The Evergreen

Association court, in finding that the pregnancy centers did not engage in professional speech, stated that [w]hile

Plaintiffs meet with clients individually, there is no indication that they employ any specialized expertise or

professional judgment in service of their clients' individual needs and circumstances. 801 F. Supp. 2d 197, 207;

Tepeyac, 779 F. Supp. 2d at 467 (finding that confidential discussions of pregnancy optionsin person-to-person

situations does not make the speech professional and individualized). What matters is not whether the Centers offer

general information and services that are relevant to the womens situation, but whether they employ anyspecialized expertise or professional judgment in doing so.23 The pregnancy center at issue in Tepeyac among other thingsprovides pregnancy testing, referral

services,confidential discussion of pregnancy options[,]information on parenting and post-abortion

guidance[,][and] practical support in the form of diapers, baby clothes, and other needed items," all free of charge.779 F. Supp. 2d at 460. The various pregnancy centers at issue in Evergreen Association provide various

pregnancy-related services, including pregnancy testing, ultrasounds, [] counseling[,]parenting and maternity

education, [] referrals to adoption and domestic violence agencies and to licensed medical facilities[,]non-

financial assistance in the form of diapers, formula, clothing, and toys[,]...[and] residential facilities for homeless

and abused pregnant women. 801 F. Supp. 2d 197, 201-202 (S.D.N.Y. 2011).



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J., concurring) ("Just as offer and acceptance are communications incidental to the regulable

transaction called a contract, the professional's speech is incidental to the conduct of the

profession.").

The Centers are not members of the regulated medical profession, but are charitable and

religious organizations; therefore, classifying their speech as professional speech is entirely

inappropriate. Furthermore, the 2012 Ordinance by its very terms exempts centers that have

medical professionals licensed by a state or federal regulatory entity that maintain a full time

practice on site. (Stip. Tab B; P-19 at 10-10-1(1)(b)). Indeed, the 2012 Ordinance targets what it

calls unlicensedpregnancy service center[s] (Stip. Tab B; P-19 at 10-10-1(1)(b)) (emphasis

added). If the centers have no license, then they are not professions regulated by the state, and

the government cannot claim their speech is professional in nature.

Indeed, Defendant seeks to blur the key distinction between professional speech and

generalized speech related to traditionally professional subject matter. SeeTepeyac, 779 F.

Supp. 2d at 466. As Justice Jackson stated:

[A] rough distinction always exists, I think, which is more shortly illustrated thanexplained. A state may forbid one without its license to practice law as a vocation,but I think it could not stop an unlicensed person from making a speech about therights of man or the rights of labor, or any other kind of right, includingrecommending that his hearers organize to support his views. Likewise, the statemay prohibit the pursuit of medicine as an occupation without its license, but I donot think it could make it a crime publicly or privately to speak urging persons tofollow or reject any school of medical thought.

Id. at 467 (quoting Thomas v. Collins, 323 U.S. 516, 544-45 (1945) (Jackson, J., concurring))

(emphasis added). The government may regulate the speech of abortion providers as it relates to

regulating the medical profession, but the government may notas the Defendant hasreach



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the speech of private individuals and ministries who wish to speak against abortion,24 simply

because it touches the broad subject of medicine. Defendants may disagree with the centers

speech on abortion, abortion risks, and birth control, but that does not mean it can regulate it.

Each centers clients only interact with non-professional, unlicensed staff and volunteers.

The GPLC only provides information and material assistance. SAPRC and APRC perform

sonograms, but they are never performed by medical professionals; indeed Texas does not

license individuals who only perform sonograms, so it is impossible for any sonographer to

posses a state license. InEvergreen, the court stated that because the state did not require

ultrasound technicians to be licensed, their speech could not be classified as professional speech.

801 F. Supp. 2d at 207.

Interestingly, the Citys own supporting documents state that pregnancy centers staff

community volunteers, not licensed professionals. The 2011 NARAL Report criticize pregnancy

centers for not [being] staffed by trained medical provides and counselors and only having

community volunteers (Stip. Tab G; P-14 7, 10). The 2009 NARL Report states that TPCN

pregnancy centers are staffed primarily by unlicensed volunteers who are specifically

prohibited from discussing medical needs. (Stip Tab F; P-4 at 11) It further states pregnancy

center have limited expertise and licensed support, and serve primarily as a source of

information and referral (Id. at 15).

Furthermore, the definition of a professional from Lowe and relied upon in Tepeyac,

andEvergreenAssociation makes clear that the Centers do not fall into this category:

One who takes the affairs of a client personally in hand and purports to exercise judgment on behalf of the

client in the light of the client's individual needs and circumstances is properly viewed as engaging in the

practice of a profession. Where the personal nexus between professional and client does not exist, and a

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!24 It should also be noted that the subject of abortion is fully protected speech because it is an important issue of

public policy. SeeSnyder v. Phelps, 131 S. Ct. 1207, 1215 (2011) ("[S]peech on public issues occupies the highest

rung of the hierarchy of First Amendment values, and is entitled to special protection.") (internal citation and

quotations omitted).



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speaker does not purport to be exercising judgment on behalf of any particular individual with whose

circumstances he is directly acquainted, government regulation ceases to function as legitimate regulation

of professional practice with only incidental impact on speech; it becomes regulation of speaking or

publishing as such.

Tepeyac, 779 F. Supp. 2d at 466 (quotingLowe, 472 U.S. at 232). The Centers do not purport[]

to exercise judgment on behalf of the client or take[] the affairs of a client personally in hand.

The Centers simply provide general information concerning the topics of pregnancy; the decision

about whether to seek an abortion or carry the pregnancy to term is a choice ultimately left to the

woman. The Centers merely give women the tools to reason through whether to have abortions

on their own. (APRC, SAPRC, and GPLCs response to Def. Req. for Admis. No. 4). For these

reasons, no quasi-fiduciary or actual fiduciary relationship is formed.25

Because the Centers

do[] not purport to be exercising judgment on behalf of any particular individual the Ordinance

ceases to function as legitimate regulation of professional practice with only incidental impact

on speech [and instead] it becomes regulation of speaking or publishing as such. Tepeyac, 779

F. Supp. 2d at 466 (quotingLowe, 472 U.S. at 232).

The Centers are comprised of individuals who seek to fulfill the Centers religious

mission, not professionals exercising professional medical judgment. If Defendants argument

were accepted, the distinction illustrated in Lowe and Thomas between discussion of

professional subject matter and practice of a profession would be rendered meaningless.

Tepeyac, 779 F. Supp. 2d at 467.

E.The 2012 Ordinance is unconstitutionally vague and substantially overbroad1. The Ordinance is substantially overbroadThe Ordinances definition of an unlicensed pregnancy service center is so broad that

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!25 A fiduciary relationship is defined as [a] relationship in which one person is under a duty to act for the benefit of

another on matters within the scope of the relationship; Fiduciary relationships- such as trustee-beneficiary,

guardian-ward, principal-agent, and attorney-client- require an unusually high degree of care. BLACKS LAW

DICTIONARY (9th ed. 2009). As stated above, the Centers simply provide information and resources to women, and

are not under the duty to act for their benefit. Therefore, no fiduciary or quasi-fiduciary relationship is formed.



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it covers any organization or facility that provides pregnancy related services as its primary

purpose that does not have a health care provider that is licensed by a state or federal regulatory

entity maintaining a full time practice on site. (Stip. Tab B; P-19 at 10-10-1(1)). Organizations

that are swept up by this definition face criminal penalties if they do not post the required

government-dictated disclaimers. Id. The Ordinance therefore regulates and criminalizes

substantially more speech than the Constitution allows. Even [a] clear and precise enactment

may nevertheless be overbroad if in its reach it prohibits constitutionally protected conduct.

Grayned v. City of Rockford, 408 U.S. 104, 114 (1972). The crucial question, then, is whether

the ordinance sweeps within its prohibitions what may not be punished under the First and

Fourteenth Amendments. Grayned, 408 U.S. at 114-115.

Numerous organizations provide pregnancy related services as their primary purpose, and

fall within the ordinances purview because they do not have a licensed heath care provider

maintaining a full time practice on site. (Stip. Tab B; P-19). For example, the following

organizations all as [their] primary purpose, provide[] pregnancy related services and do not

have a full-time health care provider on site: support groups for pregnant women such as the

Austin Pregnancy & New Moms Group; fertility organizations that take a holistic, non-

medical approach to pregnancy such as the Texas Center for Reproductive Acupuncture;

pregnancy and birthing classes such as Conscious Birthing Austin; lactation consultants such as

Central Texas Healthy Mothers Healthy Babies Coalition; adoption agencies such as Adoption

Advocates; maternity stores such as Motherhood Maternity; lay counselors who specialize in

pregnancy and fertility; ultrasound Imaging centers such as Clearview Ultrasound; and

pregnancy spas such as Blooming Pregnancy Spa. These organizations are covered by the

Ordinance, and are thus subject to criminal penalties for engaging in protected speech on the



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topic of pregnancy, unless they post the government-mandated disclaimers.

The Defendant admitted that the Ordinance applies to some of the above-mentioned

organizations in its 30(b)(6) deposition testimony:

Q (by LifeCares Counsel): Was it your intention that this ordinance apply to other groups besides

PRCs?

A (by Councilmember Spelman): If they fit the requirement that their primary purpose is

pregnancy-related services and they do not have a health care provider licensed by state or federal

regulatory entity maintaining a full-time practice yes.

Q: Okay. So it would perhaps apply to support groups for pregnant women?A: It could. Yes.

Q: Pregnancy and birthing coaches?

A: If they are not licensed, do not maintain a full-time practice, if theyre providing pregnancy-

related services, absolutely true. Yes, sir.

(Spelman Dep. 89:1025).

Diocese Trial Brief

Documents

Transcript of Diocese Trial Brief