The No-Problem 'Problem' Means Good News in Maryland


“Because Defendants have failed to demonstrate an actual problem in need of solving, it is unnecessary to reach the narrow tailoring prong of the strict scrutiny test.”1

Those are the words footnoted on the last page of last Friday’s opinion by Judge Deborah Chasanow in the case Centro Tepeyac v. Montgomery County, et al., Case 8:10-cv-01259 (D. Maryland 3/7/2014).

Imagine that… Montgomery County was unable to demonstrate to the Court that pregnancy help centers pose a problem in need of solving. What’s just as telling is what the Court also stated in the body of the opinion:

Quite simply, the County has put no evidence into the record to demonstrate that [limited service pregnancy resource centers’] failure clearly to state that no doctors are on premises has led to any negative health outcomes. Id., at 52.

The County, in the words of the pregnancy help centers, was searching for a problem to fit their Resolution (Id., at 42). The problem with the County’s problem, however, is that in the end, Montgomery County’s pregnancy centers don’t actually pose a problem to the County’s residents.

The Background

The case before the Court was a Resolution attempting to force Montgomery County’s pregnancy help centers, including Heartbeat affiliate Centro Tepeyac, to make specific disclosures stating what services they did—and did not offer.

The Resolution, Number 16-1252, originally passed Feb. 2, 2010, and required Montgomery County pregnancy help centers to post notices in specific languages and in specific locations on-site. The notices were to state that licensed medical professionals were not on the premises and that the County recommended pregnant women see a physician for a medical diagnosis of pregnancy.

Represented by Alliance Defending Freedom, Centro Tepeyac challenged the Resolution on the grounds that it violated the freedoms guaranteed by the First and Fourteenth Amendments.

Now several years into the process, Judge Chasanow, a District of Maryland justice, clearly and cogently determined that the Resolution imposed an unconstitutional burden on the rights guaranteed to centers.

The Process

The opinion, issued Friday, March 7, 2014, was actually the District Court’s revisit to the Resolution, which was most recently reviewed July 2013 in a decision by the 4th Circuit.

Throughout its long and convoluted procedural journey, the Resolution has been analyzed and reanalyzed. The flow of the County’s argument was as follows:

  1. The County has a compelling interest in protecting women’s health.
  2. PHCs do not advise women that medical professionals are not on site and that the County recommends pregnant women see a physician for a medical diagnosis.
  3. Pregnancy Help Centers harm women in failing to make the two statements to pregnant women.
  4. Pregnancy Help Centers obstruct the County’s interest in protecting women’s health.
  5. Mandatory disclosure will advance the County’s interest in protecting women’s health.
  6. PHCs must therefore be compelled to make such statements to pregnant women on PHC premises.

In Friday’s ruling, Judge Chasanow found that the County did indeed demonstrate a compelling interest in protecting the health of women (point 1 above). The Court also assumed, for the sake of argument, that the pregnancy help centers did not make any of the statements required to be made (points 2).

However, the flaw in the County’s argument, the Court reasoned, was between points 2 and 3, where the County failed to demonstrate the connection between the pregnancy help centers’ actions (or assumed inactions) and any evidence-based harm to pregnant women.

Commenting on the County’s evidence, the Court stated:

The County attempts to elide this distinction by providing no evidence for the effect, only the alleged cause. The Waxman and NARAL reports focus on the misinformation problem. So too do all of the comments made to the County Council in support of the Resolution. These commenters – who were universally volunteers from a pro-choice organization sent to investigate LSPRCs’ practices – discussed the alleged misinformation they were provided and that that the LSPRCs were not forthcoming with the fact that they are not a medical center and that they do not provide referrals for abortions. But even assuming all that is true - that LSPRC are presenting themselves as medical providers and thus pregnant women are accepting their misinformation as sound medical advice, the County must still demonstrate the next supposition on the logical chain: that these practices are having the effect of harming the health of pregnant women. The County has failed this task.

With the County’s failure to connect the link at the earlier points, the Court never had to consider the analysis of whether the County’s Resolution passed the strict scrutiny least restrictive means test typically employed by the United States Supreme Court in such cases.

The Final Analysis

This case is a clear victory for pregnancy help centers, not only in Maryland, but across the nation.

The Court attacks the very heart of the evidence, its legitimacy and its sources. Further, the Court logically and reasonably requires the County to demonstrate in court what it should have considered at the legislative level: Does the (mis)information justify the legislation?

Though the case is likely to be appealed by the County, the strength and logic of the decision should serve as a guide for other judges considering such legislation.

Stay tuned, but in the meantime, congratulations to the Montgomery County pregnancy help centers, Alliance Defending Freedom, and the other attorneys representing and standing for life.

by Ellen Foell, Legal Counsel

1. Centro Tepeyac v. Montgomery County, et al.Case 8:10-cv-01259 (D. Maryland 3/7/2014)