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Tepeyac v. Montgomery County

United States District Court, D. Maryland

March 7, 2014


Order Filed: March 26, 2014

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For Centro Tepeyac, Plaintiff: John R Garza, LEAD ATTORNEY, Garza Regan and Associates PC, Rockville, MD; Mark Leonard Rienzi, PRO HAC VICE, Columbus School of Law, Catholic Univ of America, Washington, DC; Matthew Scott Bowman, Michael Casey Mattox, PRO HAC VICE, Alliance Defense Fund, Washington, DC; Robert R Michael, Shadoan Michael and Wells LLP, Rockville, MD; Steven Henry Aden, PRO HAC VICE, Alliance Defending Freedom, Washington, DC.

For Montgomery County, Montgomery County Council, In its Capacity as the Montgomery County Board of Health, Defendants: Clifford L Royalty, Montgomery County Government, Rockville, MD; Patricia P Via, Office of the County Attorney for Montgomery County MD, Rockville, MD.


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DEBORAH K. CHASANOW, United States District Judge.

Presently pending and ready for resolution in this action arising under the First and Fourteenth Amendments are the motion for summary judgment filed by Plaintiff Centro Tepeyac (" Centro Tepeyac" ) (ECF No. 68) and the cross-motion for summary judgment filed by Defendants Montgomery County and Montgomery County Council (collectively, " the County" ) (ECF No. 70). The issues are fully

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briefed and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the reasons that follow, the Plaintiff's motion will be granted in part and the County's motion will be denied.

I. Background

A. Factual Background

On February 2, 2010, the Montgomery County Council passed Resolution Number 16-1252 (" the Resolution" ). The Resolution requires " Limited Service Pregnancy Resource Centers" (" LSPRCs" ) to make certain disclaimers. (ECF No. 48-5). An LSPRC is defined as any " organization, center, or individual" that " (A) has a primary purpose to provide pregnancy-related services; (B) does not have a licensed medical professional on staff; and (C) provides information about pregnancy-related services, for a fee or as a free service." ( Id. at 2). The Resolution further defines " licensed medical professional on staff" as " one or more individuals" who:

(A) are licensed by the appropriate State agency under Title 8, 14, or 15 of the Health Occupations Article of the Maryland Code;
(B) provide medical-related services at the center by either:
(i) providing medical services to clients at the Center at least 20 hours per week; or
(ii) directly overseeing medical services provided at the Center; and
(C) are employed by or offer services at the Center.

( Id. ).

The Resolution obligates any LSPRC to post a sign in its waiting room that reads: (1) " the Center does not have a licensed medical professional on staff" ; and (2) " the Montgomery County Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider" . ( Id. ). The sign must be easily readable, written in English and Spanish, and " conspicuously posted in the Center's waiting room or other area where individuals await service." ( Id. ). Violation of the Resolution is a Class A civil violation. ( Id. ). The Resolution may be enforced by a court action initiated by the County Attorney or a citation issued by the Department of Health and Human Services. ( Id. at 3).

The background section of the Resolution states that the County passed the Resolution after holding a public hearing on December 1, 2009, and concluding that " a disclaimer for certain pregnancy resource centers [was] necessary to protect the health of County residents." ( Id. at 1). In particular, the County expressed concern that:

clients may be misled into believing that a Center is providing medical services when it is not. Clients could therefore neglect to take action (such as consulting a doctor) that would protect their health or prevent adverse consequences, including disease, to the client or the pregnancy.

( Id. ). A similar sentiment was expressed in a January 29, 2010 memorandum to the County Council from Amanda Mihill, a legislative analyst for the County (" Mihill Memoradum" ):

The Council is primarily concerned with ensuring that a pregnant woman is not led to mistakenly believing that an LSPRC is staffed by professionals licensed to give medical advice to patients. Women who believe they are receiving advice from medical professionals may not take important steps, including consulting appropriate medical professionals, which would protect their health or prevent adverse consequences during the pregnancy.

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(ECF No. 48-6, at 2). The Mihill Memorandum cited two studies to support this view, including a July 2006 report by the Minority Staff of the United States House of Representatives Committee on Government Reform entitled " False and Misleading Health Information Provided by Federally Funded Pregnancy Resource Centers." (" Waxman Report" ). The Mihill Memorandum cited the study's findings that approximately 87% of the centers contacted provided false or misleading information about the health effects of an abortion, including information about a link between abortion and breast cancer, the effect of abortion on future fertility, and the mental health effects of abortion. ( Id. at 23). The second report cited was a January 2008 report by the NARAL Pro-Choice Maryland Fund. (" NARAL Report" ). NARAL sent volunteers into LSPRCs in Maryland, including Centro Tepeyac, and found that every center visited provided false or misleading information, including " false information about abortion risks, misleading data on birth control, and emotionally manipulative counseling." ( Id. at 34).

The Mihill Memorandum went on to assess the medical literature and found that most of the medical community does not share the views about the health risks of abortion apparently espoused at LSPRCs, including Centro Tepeyac. While acknowledging that studies reaching opposite conclusions exist and no medical procedure is completely risk-free, " [t]he issue the proposed regulation is designed to address is that some LSPRCs provide their clients with misinformation/incomplete information about their pregnancy options which can negatively affect a woman's decision regarding her pregnancy and health." ( Id. at 3). The surveyed medical literature consistently recommended prenatal care as early as possible in a woman's pregnancy because it is associated with positive health results. " The proposed regulation would address this health concern by ensuring that clients of LSPRCs understand that the information they are receiving is not necessarily from licensed medical professionals." ( Id. ).

At the Council debate, Councilmember George Leventhal said that as members of the Council's Health and Human Services Committee began understanding the activities of LSPRCs,

it became clear to us that many services are provided that may be perceived as medically related services including pregnancy tests, sometimes sonograms, and medical and health counseling. With this understanding, the Committee felt it was valid and appropriate public policy to ensure that County residents understand that they are not visiting a medical clinic if the center does not have licensed medical professionals on staff and that pregnant women, women who are or may be pregnant, should see a doctor.

(ECF No. 49-3, at 2). Councilmember Phil Andrews opposed the Resolution, finding that it is unnecessary as he has not received a single complaint from anyone who went to an LSPRC in his eleven years as a Councilmember. (ECF No. 49-3, at 5).

A press release sent after the Resolution's approval from the Office of Councilmember Duchy Trachtenberg, the chief sponsor of the Resolution, stated that " the regulation is needed because some pregnancy centers often provide false and misleading information to women. . . . [LSPRCs] often discourage women from seeking contraception or abortion." (ECF No. 48-8).

Centro Tepeyac is a pro-life Montgomery County non-profit corporation that provides pregnancy services such as pregnancy

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testing, confidential discussion of pregnancy options, and support to families in the form of diapers and baby clothes. It considers itself a pregnancy center subject to the Resolution. All of its goods and services are provided free of charge, although occasionally a woman will give a personal donation to the center. (ECF No. 49-5, at 22, 43, Trans. 22:14-20, 43:14-24), Deposition of Mariana Vera). Centro Tepeyac does not provide abortions or refer women for abortions. It does not have a licensed medical professional on staff. (ECF No. 48-4 ¶ ¶ 3, 7, 8). It promises confidentiality to the women it counsels and does not disclose information concerning the counseling sessions without the consent of the woman. (ECF No. 49-4 ¶ 2). Ms. Mariana Vera, Centro Tepeyac's Executive Director, represented in comments submitted to the County Council that " [a]t least half" of the women who take a pregnancy test at Centro Tepeyac were referred by the public clinics of Montgomery County. (ECF No. 48-6, at 58). Those referrals continued even after passage of the Resolution. (ECF No. 48-4 ¶ 4, Declaration of Mariana Vera). The County-run health centers have compiled a list of private facilities where women can get a pregnancy test. This list includes Centro Tepeyac but nowhere states that Centro Tepeyac does not have licensed medical professionals on staff or that pregnant women should see a licensed healthcare provider. (ECF No. 48-13; see also ECF No. 48-10 at 36, Trans. 36:7-23).

According to Ms. Vera,

The Resolution chills and burdens the free speech rights of Centro Tepeyac, by forcing us to suggest to our clients that we are not qualified to talk with them or to provide them with assistance. Likewise, it chills our free speech rights by forcing us to post a sign suggesting that the County believes they should go elsewhere. The Resolution has chilled and burdened the Center in that it has taken critical time and attention away from our core mission of helping women.

(ECF No. 48-4 ¶ ¶ 10-11). Ms. Vera took a similar position in her deposition, stating that she did not want the sign being the first thing women see upon entering the center " because what it's communicating is that we are not qualified enough to help these women." (ECF No. 49-5, at 24, Trans. 24:11-12). Ms. Vera believed that pregnancy is more than just medical care; it is holistic and Centro Tepeyac can assist in that holistic sense. ( Id. at 25-26, Trans. 25:7 - 26:1). Ms. Vera testified that Centro Tepeyac does not present itself as having medical staff onsite. Any confusion is rare and mostly comes from those who call into the center. Those who come to the center would have no confusion, as the center has " bright colors" and no " medical things" on the walls. ( Id. at 26-27, Trans. 26:8 - 27:1).

The County provided Dr. Ulder Tillman, Health Officer for Montgomery County and Chief of Public Health Services, as its Rule 30(b)(6) representative. Dr. Tillman stated that she had never received a complaint from someone who sought service at an LSPRC in Montgomery County. (ECF No. 48-10 at 14, Trans. 14:10-14; id. at 21, Trans. 21:5-9; id. at 43, Trans. 43:20-21). She testified that the concern motivating the law is that women " may be going to certain pregnancy resource centers thinking that it is a medical establishment and then may not be receiving information from a licensed medical professional." ( Id. at 18, Trans. 18:9-14; see also id. at 23, Trans. 23:11-15 (" In terms of speaking for the County, my interest is that women who may be or are pregnant receive or have the opportunity to receive information from a licensed health professional and to know when they are in that situation or not." )). Dr. Ullman had no evidence that any pregnant woman who went

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to an LSPRC delayed seeking medical care because she believed she had spoken with a licensed medical professional. ( Id. at 24 and 26, Trans. 24:4-7, 26:3-6).

Dr. Ullman testified that the County has not attempted to spread the Resolution's messages through advertisements in newspapers, radio, television, Facebook, or Twitter; on billboards; on signs in government buildings or pregnancy-related spaces such as maternity stores. Such a strategy has not been employed due to resource constraints and the view - generally shared in the public health community - that targeted messages work better than broad disseminations. (ECF No. 48-10, at 46-51, 73). She testified that as the County Health Officer she has the authority to disseminate the messages reflected in the Resolution but has not recommended that the County do so nor has she been asked to do so. (ECF No. 48-10, at 65, Trans. 65:8-19).

B. Procedural Background

On May 19, 2010, Centro Tepeyac filed a complaint asserting two violations of 42 U.S.C. § 1983: (1) deprivation of its First Amendment rights, and (2) deprivation of its Fourteenth Amendment right to equal protection. (ECF No. 1). The complaint included a request for both preliminary and permanent injunctive relief. On June 3, 2010, the County filed an " opposition to motion for preliminary injunction and motion to dismiss or, alternatively, for summary judgment." (ECF No. 5). Centro Tepeyac thereafter filed a separate motion for preliminary injunction and opposed the County's motion to dismiss. (ECF Nos. 6, 17). The court held a hearing on each of these motions on July 23, 2010.

On March 15, 2011, the court issued a memorandum opinion and order granting in part and denying in part both the motion to dismiss and the motion for a preliminary injunction. (ECF Nos. 26-27). With regard to the preliminary injunction request, the court denied the motion as to the first statement required by the Resolution (no licensed medical professional on staff) and granted the motion as to the second mandated statement (encouraging pregnant women to consult licensed health care provider). The County then answered the complaint, and the parties began discovery.[1] On November 1, 2011, Centro Tepeyac filed a motion for summary judgment. (ECF No. 48). Two weeks later, the County submitted an opposition and cross-motion for summary judgment. (ECF No. 49). Both motions have since been fully briefed.

Shortly before beginning discovery, the County appealed the preliminary injunction prohibiting enforcement of the Resolution's second statement, and Centro Tepeyac cross-appealed the denial of its motion with respect to the first statement. Following briefing and oral argument, a panel of the United States Court of Appeals for the Fourth Circuit issued an opinion affirming in part and reversing in part the court's resolution of Centro Tepeyac's preliminary injunction motion. Centro Tepeyac v. Montgomery Cnty., 683 F.3d 591 (4th Cir. 2011).[2] Specifically, the panel

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concluded that preliminary injunctive relief was warranted as to both statements in the Resolution.

The County requested rehearing en banc which the Fourth Circuit granted on August 15, 2012, thereby vacating the panel decision. Centro Tepeyac v. Montgomery Cnty., Nos. 11-1314 (L), 11-1336, 2012 WL 7855860 (4th Cir. Aug. 15, 2012). Argument was heard December 6, 2012 and the court issued an opinion on July 3, 2013, holding that this court acted within its discretion to enjoin preliminarily only the second sentence of the Resolution. 722 F.3d 184 (4th Cir. 2013).[3] Since September 2012, the County has stipulated that it will not enforce the Resolution against Centro Tepeyac while this case remains pending. (ECF Nos. 61 and 65).

On August 16, 2013, Plaintiff renewed the motion for summary judgment. (ECF No. 68). Defendants filed a supplemental opposition and counter moved for summary judgment on September 17, 2013. (ECF No. 70). Plaintiff replied on October 21, 2013 (ECF No. 71), and Defendants replied on November 15, 2013 (ECF No. 72).

II. Standard of Review

A court may enter summary judgment only if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). Summary judgment is inappropriate if any material factual issue " may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); JKC Holding Co. LLC v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).

The moving party bears the burden of showing that there is no genuine issue as to any material fact. However, no genuine issue of material fact exists if the nonmoving party fails to make a sufficient showing on an essential element of his or her case as to which he or she would have the burden of proof. Celotex, 477 U.S. at 322-23. Therefore, on those issues on which the nonmoving party has the burden of proof, it is his or her responsibility to confront the summary judgment motion with an affidavit or other similar evidence showing that there is a genuine issue for trial. " A party opposing a properly supported motion for summary judgment 'may not rest upon the mere allegations or denials of [his] pleadings,' but rather must 'set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting former Fed.R.Civ.P. 56(e)). " A mere scintilla of proof . . . will not suffice to prevent summary judgment." Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003). " If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50. (citations omitted). At the same time, the court must construe the facts that are presented in the light most favorable to

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the party opposing the motion. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Emmett, 532 F.3d at 297.

" When cross-motions for summary judgment are before a court, the court examines each motion separately, employing the familiar standard under Rule 56 of the Federal Rules of Civil Procedure." Desmond v. PNGI Charles Town Gaming, LLC, 630 F.3d 351, 354 (4th Cir. 2011). The court must deny both motions if it finds there is a genuine dispute of material fact, " [b]ut if there is no genuine issue and one or the other party is entitled to prevail as a matter of law, the court will render judgment." 10A Charles A. Wright, et al., Federal Practice & Procedure § 2720 (3d ed. 1998).

III. Analysis

The parties have filed cross-motions for summary judgment as to all counts in the complaint. Their memoranda focus principally on Centro Tepeyac's First Amendment claim, with the parties vigorously disputing both the level of scrutiny applicable to the Resolution and whether the Resolution satisfies that level of scrutiny.

As an initial matter, the type of First Amendment challenge Plaintiff brings must be considered, as that will dictate which party bears the burden of proof and the scope of that burden. There are two types of challenges to the validity ...

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