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Orlando, FL 32854-0774
Telephone: 800•671•1776
Facsimile: 407•875•0770
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Washington, DC 20001
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Facsimile: 202•216•9656
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Telephone: 434•592•7000
Facsimile: 434•592•7700
liberty@LC.org
Reply to: Virginia

July 16, 2014

Via CM/ECF Electronic Filing

United States Court of Appeals for the Third Circuit
James A. Byrne United States Courthouse
601 Market Street
Philadelphia, PA 19105

RE: Tara King, et al. v. Governor of the State of New Jersey, Case No. 13-4429
Citation to Supplemental Authority, Fed. R. App. P. 28(j), 3d Cir. R. 112.8(g)

Dear Honorable Members of the Court of Appeals for the Third Circuit:

Plaintiffs/Appellants wish to direct the Court’s attention to two recently released
decisions filed on January 17, 2014, in the Middle District of North Carolina, Stuart v.
Loomis, No. 1:11-CV-804, 2014 WL 186310 (M.D.N.C. Jan. 17, 2014) and on March 7,
2014, Tepeyac v. Montgomery Cnty., No. DKC 10-1259, 2014 WL 923320 (D. Md. Mar.
7, 2014). A copy of each case is attached hereto.

These cases address some of the same issues under consideration in Case No.
13-4429, namely, the constitutionality of a State mandating that a licensed mental
health professional espouse only the State’s viewpoint on an otherwise permissible
subject matter regardless of whether that professional believes it to be in the best
interest of the client or detrimental to the client’s health. Stuart is directly relevant to
Judge Smith’s question concerning the informed consent provision at issue in Planned
Parenthood of Se. Penn. v. Casey, 505 U.S. 833 (1992) and notes that the plurality
upheld an informed consent requirement because it contained a medical
judgment/therapeutic exception for a physician who believed the mandated disclosure
was not in his client’s best interest. This point was also made by the Ninth Circuit in
Conant v. Walters, 309 F.3d 629, 638 (9th Cir. 2002), which is cited in Appellants’ brief
at 31-32. No such exception exists under A3371. Tepeyac is relevant to the Court’s
questions concerning the appropriate level of scrutiny for speech restrictions in the
medical setting and holds that strict scrutiny is appropriate even in the medical context
when the regulation is content based.


Case: 13-4429 Document: 003111680752 Page: 1 Date Filed: 07/16/2014




A copy of this letter is provided to all counsel of record via this Court’s CM/ECF
electronic service.



/s/ Mathew D. Staver
Mathew D. Staver
Attorney for Plaintiff-Appellants
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Only the Westlaw citation is currently available.

United States District Court,
M.D. North Carolina.
Gretchen S. STUART, M.D., et al., Plaintiffs,
v.
Ralph C. LOOMIS, M.D., et al., Defendants.

No. 1:11–CV–804.
Jan. 17, 2014.

Background: Physicians and health care providers
brought action against various government agents in
their official capacities, alleging portions of North
Carolina's Woman's Right to Know Act that required
providers perform ultrasound and describe images to
women seeking an abortion violated their First
Amendment speech rights. Parties cross moved for
summary judgment.

Holdings: The District Court, Catherine C. Eagles,
J., held that:
(1) heightened scrutiny applied;
(2) Act violated the First Amendment; and
(3) providers had third-party standing.

Motions granted in part and denied in part

West Headnotes

[1] Constitutional Law 92 1564

92 Constitutional Law
92XVIII Freedom of Speech, Expression, and
Press
92XVIII(A) In General
92XVIII(A)3 Particular Issues and Appli-
cations in General
92k1564 k. Compelled or Forced
Speech, Support, or Participation. Most Cited Cases

The First Amendment generally prohibits the
government from requiring people to speak its mes-
sages. U.S.C.A. Const.Amend. 1.

[2] Constitutional Law 92 1564

92 Constitutional Law
92XVIII Freedom of Speech, Expression, and
Press
92XVIII(A) In General
92XVIII(A)3 Particular Issues and Appli-
cations in General
92k1564 k. Compelled or Forced
Speech, Support, or Participation. Most Cited Cases

Because mandating speech that a speaker would
not otherwise make necessarily alters the content of
the speech, speech compelled by the government is
typically considered content-based regulation for
First Amendment purposes. U.S.C.A. Const.Amend.
1.

[3] Constitutional Law 92 1564

92 Constitutional Law
92XVIII Freedom of Speech, Expression, and
Press
92XVIII(A) In General
92XVIII(A)3 Particular Issues and Appli-
cations in General
92k1564 k. Compelled or Forced
Speech, Support, or Participation. Most Cited Cases

Content-based speech compelled by the govern-
ment is generally subject to strict scrutiny under the
First Amendment, even where the compelled speech
is limited to factually accurate or non-ideological
statements. U.S.C.A. Const.Amend. 1.

[4] Constitutional Law 92 1506
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Page 2
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92 Constitutional Law
92XVIII Freedom of Speech, Expression, and
Press
92XVIII(A) In General
92XVIII(A)1 In General
92k1506 k. Strict or Exacting Scrutiny;
Compelling Interest Test. Most Cited Cases

“Strict scrutiny” under the First Amendment re-
quires that a speech restriction be narrowly tailored to
promote a compelling government interest. U.S.C.A.
Const.Amend. 1.

[5] Constitutional Law 92 1506

92 Constitutional Law
92XVIII Freedom of Speech, Expression, and
Press
92XVIII(A) In General
92XVIII(A)1 In General
92k1506 k. Strict or Exacting Scrutiny;
Compelling Interest Test. Most Cited Cases

Heightened scrutiny under the First Amendment
requires at a minimum that a provision regulating
speech must directly advance a substantial state inter-
est and be drawn to achieve that interest; it also re-
quires that the harms the provision prevents must be
real, not merely conjectural, and that the provision at
issue in fact alleviates these harms in a direct and
material way. U.S.C.A. Const.Amend. 1.

[6] Constitutional Law 92 1600

92 Constitutional Law
92XVIII Freedom of Speech, Expression, and
Press
92XVIII(C) Trade or Business
92k1600 k. In General. Most Cited Cases

Compelled professional speech is viewed under
the First Amendment on a continuum, taking into
account the regulatory context, the nature of the pro-
fessional relationship, the degree of intrusion into the
relationship, the reasons and evidentiary support for
the intrusion, and the connection between the com-
pelled speech and the government's interests.
U.S.C.A. Const.Amend. 1.

[7] Constitutional Law 92 1614

92 Constitutional Law
92XVIII Freedom of Speech, Expression, and
Press
92XVIII(C) Trade or Business
92k1614 k. Health Care Professions. Most
Cited Cases

Heightened scrutiny, which required regulation
on speech to directly advance substantial state inter-
est and be drawn to achieve that interest, applied to
determine whether portions of North Carolina's
Woman's Right to Know Act that required health care
providers perform ultrasound and describe images to
women seeking an abortion violated providers' First
Amendment speech rights; state sought to compel
doctor-patient communications about medical treat-
ment and to create new professional norm and statute
imposed burden that was based on content of speech
and was aimed at particular viewpoint. U.S.C.A.
Const.Amend. 1; West's N.C.G.S.A. § 90–21.85.

[8] Abortion and Birth Control 4 109

4 Abortion and Birth Control
4k109 k. Methods, Modes and Procedures. Most
Cited Cases

Abortion and Birth Control 4 112

4 Abortion and Birth Control
4k112 k. Information and Consent; Counseling.
Most Cited Cases
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Page 3
--- F.Supp.2d ----, 2014 WL 186310 (M.D.N.C.)
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© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

Constitutional Law 92 1614

92 Constitutional Law
92XVIII Freedom of Speech, Expression, and
Press
92XVIII(C) Trade or Business
92k1614 k. Health Care Professions. Most
Cited Cases

Portions of North Carolina's Woman's Right to
Know Act that required health care providers to per-
form ultrasound and describe images to women seek-
ing abortion did not directly advance substantial state
interests of protecting fetal health and insuring volun-
tary and informed consent and were not drawn to
achieve those interests, and therefore, violated pro-
viders' First Amendment speech rights; statute re-
quired providers deliver information to every single
patient seeking abortion, even those who objected,
would be harmed by it, or had covered their eyes and
blocked their ears, providers were required to deliver
this information even though Act provided that wom-
en could give informed consent without actually see-
ing images or hearing description, and providers were
required to act as state's courier and disseminate
state's message. U.S.C.A. Const.Amend. 1; West's
N.C.G.S.A. § 90–21.85.

[9] Federal Civil Procedure 170A 103.4

170A Federal Civil Procedure
170AII Parties
170AII(A) In General
170Ak103.1 Standing in General
170Ak103.4 k. Rights of Third Parties
or Public. Most Cited Cases

Under the doctrine of third-party standing, a
plaintiff may assert the rights of another with whom
the plaintiff has a close relationship if there is a hin-
drance to the possessor's ability to protect his own
interests.

[10] Constitutional Law 92 886

92 Constitutional Law
92VI Enforcement of Constitutional Provisions
92VI(A) Persons Entitled to Raise Constitu-
tional Questions; Standing
92VI(A)10 Due Process
92k886 k. Abortion and Birth Control.
Most Cited Cases

Health care providers had sufficiently close rela-
tionship with patients in abortion context that provid-
ers could reasonably be expected to properly frame
issues and present them with necessary adversarial
zeal, as required for providers to have third-party
standing to assert claim on behalf of patients that
portions of North Carolina's Woman's Right to Know
Act that required health care providers perform ultra-
sound and describe images to women seeking an
abortion violated Fourteenth Amendment substantive
due process claims; patients' interests in privacy
could keep them from coming forward and patient
seeking to assert right to abortion faced imminent
mootness due to pregnancy's inherent time limita-
tions. U.S.C.A. Const.Amend. 14; West's N.C.G.S.A.
§ 90–21.85.

West Codenotes
Held UnconstitutionalWest's N.C.G.S.A. § 90–
21.85.Anton Metlitsky, O'Melveny & Myers LLP,
Julie Rikelman, Diana O. Salgado, Planned
Parenthood Federation of America, New York, NY,
Helene T. Krasnoff, Planned Parenthood Federation
of America, Laura Conn, Walter Dellinger, O'Mel-
veny & Myers, L.L.P., Washington, DC, Christopher
A. Brook, American Civil Liberties Union, Raleigh,
NC, for Plaintiffs.

Isham Faison Hicks, N.C. Department of Justice,
Raleigh, NC, for Defendants.
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MEMORANDUM OPI NI ON AND ORDER
CATHERINE C. EAGLES, District Judge.
*1 In 2011, North Carolina imposed new re-
quirements on health care providers who treat pa-
tients seeking abortions. The Woman's Right to
Know Act (“the Act”), codified at N.C. Gen.Stat. §§
90–21.80 through 90–21.92, sets forth the infor-
mation physicians and other health care providers
FN1

(hereinafter “providers”) are required to make availa-
ble to a woman seeking an abortion before she can
give informed consent. Another section, the “speech-
and-display provision,” requires that the provider
perform an ultrasound at least four hours in advance
of an abortion, during which he or she must display
ultrasound images so that the patient may view them
and must describe the images to the patient. The de-
scription must include the dimensions of the embryo
or fetus and the presence of external members and
internal organs, if present and viewable. The woman
need not watch or listen to the display and explana-
tion.

Plaintiffs—several North Carolina physicians
and health care providers—brought this action on
behalf of themselves and their patients challenging
the constitutionality of parts of the Act. Defendants
are various North Carolina government agents sued
in their official capacities, which the Court will refer
to as either “Defendants” or “the state.” Plaintiffs
primarily object to being required to deliver the
speech-and-display information to women who do
not wish to receive it and to women at risk of serious
psychological harm from the information.

The Supreme Court has never held that a state
has the power to compel a health care provider to
speak, in his or her own voice, the state's ideological
message in favor of carrying a pregnancy to term,
and this Court declines to do so today. To the extent
the Act is an effort by the state to require health care
providers to deliver information in support of the
state's philosophic and social position discouraging
abortion and encouraging childbirth, it is content-
based, and it is not sufficiently narrowly tailored to
survive strict scrutiny. Otherwise, the state has not
established that the speech-and-display provision
directly advances a substantial state interest in regu-
lating health care, especially when the state does not
require the patient to receive the message and the
patient takes steps to avoid receipt of the message.
Thus, it does not survive heightened scrutiny.

Because the speech-and-display provision vio-
lates Plaintiffs' First Amendment rights, enforcement
of this provision must be enjoined. Plaintiffs' due
process claim is thus moot. Finally, the Court agrees
with the parties' proposed constructions of certain
disputed provisions, so that the Act is not void as
vague.

BACKGROUND
In their initial complaint, Plaintiffs contended
that the Act violated their constitutional rights in a
number of ways. They immediately moved for a pre-
liminary injunction based on First Amendment and
vagueness arguments. The Court found that Plaintiffs
were likely to succeed on the merits of their First
Amendment compelled speech claims related to the
speech-and-display provision, granted Plaintiffs' mo-
tion in part, and enjoined Defendants from enforcing
the speech-and-display provision. See Stuart v. Huff,
834 F.Supp.2d 424 (M.D.N.C.2011); (CM–ECF
Docs. 40, 66.) The Court denied the motion as to
Plaintiffs' vagueness arguments, and the remainder of
the Act became effective on October 28, 2011.

*2 After the Court enjoined part of the Act, sev-
eral individuals sought to intervene as defendants in
the action. The Court denied their motion. Stuart v.
Huff, No. 1:11–cv–804, 2011 WL 6740400
(M.D.N.C. Dec. 22, 2011). The Fourth Circuit af-
firmed. Stuart v. Huff, 706 F.3d 345 (4th Cir.2013).

After a period of discovery, Plaintiffs filed a Se-
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cond Amended Complaint which narrowed their
claims. (Doc. 75.) Their First Amendment, due pro-
cess, and vagueness claims remain. The parties have
each moved for summary judgment.

Summary judgment is proper when “there is no
genuine dispute as to any material fact and the mo-
vant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). When both parties move for
summary judgment, “the court must review each mo-
tion separately on its own merits to determine wheth-
er either of the parties deserves judgment as a matter
of law.” Rossignol v. Voorhaar, 316 F.3d 516, 523
(4th Cir.2003) (internal quotation marks omitted). In
reviewing each motion, the court should “resolve all
factual disputes and any competing, rational infer-
ences in the light most favorable to the party oppos-
ing that motion.” Id. (internal quotation marks omit-
ted).

FIRST AMENDMENT CLAIM
Plaintiffs contend that the speech-and-display
provision violates their First Amendment rights be-
cause it compels them to deliver the state's content-
based message to their patients, a message they do
not want to deliver in the absence of a request from
or consent of their patients. Plaintiffs contend that the
Court should apply strict scrutiny to this compelled,
content-based speech, and that the provision does not
survive this review.

Defendants disagree both as to this standard of
review and as to the outcome. While they admit the
provision compels speech, they contend that it com-
pels health care providers to give abortion patients
truthful, non-misleading, and relevant information
sufficient to satisfy the deferential standard they con-
tend the Supreme Court established in Planned
Parenthood of Southeastern Pennsylvania v. Casey,
505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674
(1992). In the alternative, Defendants argue that the
speech is commercial, triggering intermediate scruti-
ny, or, again in the alternative, that the Act passes
constitutional muster even applying strict scrutiny.

I. Factual and Legal Background
In support of their motion, Plaintiffs rely on the
declarations of seven physicians, (Docs. 107–112,
115), testimony from the state's expert, (Docs. 113–1,
133–1), and the declaration of one woman who un-
derwent an abortion. (Doc. 114.) In support of their
motion, Defendants rely on the report of the state's
expert, (Doc. 117–1), and on affidavits from three
women who had abortions, originally submitted by
non-parties in support of their motion to intervene.
FN2

(Docs. 45–4 to 45–6.)

The Court concludes that the material facts are
undisputed and that summary judgment is appropri-
ate.
FN3


A. Speech–and–Display Provision
*3 The Act requires an ultrasound at least four
and no more than seventy-two hours before an abor-
tion. N.C. Gen.Stat. § 90–21.85(a). During this ultra-
sound procedure, the patient must lie on an examina-
tion table where she either (i) exposes the lower por-
tion of her abdomen, or (ii) is naked from the waist
down, covered only by a drape. (Doc. 107 at ¶ 13; see
also Doc. 110 at ¶ 10; Doc. 111 at ¶ 10.) Depending
on the stage of pregnancy, the provider (i) inserts an
ultrasound probe into the patient's vagina, or (ii)
places an ultrasound probe on her abdomen.
FN4
(Doc.
107 at ¶ 13; Doc. 110 at ¶ 10; Doc. 111 at ¶¶ 10–11.)
The provider must display the images produced from
the ultrasound “so that the pregnant woman may
view them.” N.C. Gen.Stat. § 90–21.85(a)(3). Pro-
viders must then give “a simultaneous explanation of
what the display is depicting, which shall include the
presence, location, and dimensions of the unborn
child within the uterus,” id. § 90–21.85(a)(2), and “a
medical description of the images, which shall in-
clude the dimensions of the embryo or fetus and the
presence of external members and internal organs, if
present and viewable.” Id. § 90–21.85(a)(4).
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The Act provides that “[n]othing in this section
shall be construed to prevent a pregnant woman from
averting her eyes from the displayed images or from
refusing to hear the simultaneous explanation and
medical description.” Id. § 90–21.85(b). If the patient
does not want to see the ultrasound images or hear
the description and explanation concerning the ultra-
sound images, the provider may give the patient eye
blinders and headphones so that, as a practical matter,
she may avoid seeing the ultrasound images and/or
hearing the fetal heartbeat and the description of the
ultrasound images. (See Doc. 113–1 at 6; Doc. 133–2
at 3–4; see also Doc. 107 at ¶¶ 31–32; Doc. 110 at ¶¶
21–22; Doc. 111 at ¶ 18.) However, providers must
comply with the speech-and-display requirements
regardless, even if (i) the patient wears blinders and
earphones and cannot see or hear the message; (ii)
they believe that acting over the patient's objection
will harm the patient or violate medical ethics; or (iii)
doing so is contrary to their medical judgment. (See
Doc. 107 at ¶¶ 22–24, 42, 46; Doc. 108 at ¶ 11; Doc.
109 at ¶ 16; Doc. 110 at ¶ 14; Doc. 111 at ¶ 14; Doc.
112 at ¶ 12); see also N.C. Gen.Stat. § 90–21.85(a).

A woman who does not watch or listen to the re-
al-time display and description can still give in-
formed consent to an abortion. See N.C. Gen.Stat. §§
90–21.82, 90–21.85(b). When a provider displays
and describes ultrasound images to patients who take
steps to avoid seeing the images or hearing the de-
scription, the quality of informed consent is not im-
proved and no medical purpose is served. (See Doc.
107 at ¶¶ 23, 30–32, 42; Doc. 110 at ¶¶ 20–22; Doc.
111 at ¶¶ 16–19; Doc. 113–1 at 7–8, 11; Doc. 115 at
¶¶ 20–21.)

B. Abortion in North Carolina
*4 Abortion is a very safe medical procedure.
(Doc. 107 at ¶ 47; Doc. 110 at ¶¶ 4, 27; Doc. 111 at ¶
4.) In North Carolina, only a licensed physician may
perform a surgical abortion, and a licensed physician
must be present when a patient undergoes a chemi-
cally induced abortion. See N.C. Gen.Stat. § 90–
21.82(1)(a). Women seek abortions for a variety of
reasons, including but not limited to the health of the
woman or fetus. (Doc. 107 at ¶¶ 6, 8; Doc. 110 at ¶ 5;
Doc. 111 at ¶ 5.) The vast majority of abortions in
North Carolina occur during the first trimester of
pregnancy. (Doc. 111 at ¶ 6.) As is true nation-wide,
approximately half of North Carolina women obtain-
ing abortions already have at least one child. (Doc.
107 at ¶ 19.)

Since 1994, the North Carolina Department of
Health and Human Services has required by regula-
tion an ultrasound for any patient who is scheduled
for an abortion procedure. See 10A N.C. Admin.
Code 14E.0305(d). These same regulations require a
written consent form to be voluntarily signed by the
patient, which signature must be witnessed and also
signed by the physician performing the procedure. Id.
at 14E.0305(a).

All physicians in North Carolina have ethical du-
ties to their patients,
FN5
the violation of which sub-
jects them to discipline by the North Carolina Medi-
cal Board. See N.C. Gen.Stat. §§ 90–2(a), 90–
14(a)(6); N.C. Dep't of Corr. v. N.C. Med. Bd., 363
N.C. 189, 199, 675 S.E.2d 641, 648 (2009). Physi-
cians are charged with the duties to respect patient
autonomy;
FN6
to act upon patients only with the pa-
tient's consent and, generally, to not act over a com-
petent patient's objection;
FN7
to act in the patient's
individual interests as defined by the patient;
FN8
not
to inflict harm on patients;
FN9
and to exercise their
medical judgment and discretion.
FN10
Indeed, doctors
in North Carolina have a fiduciary relationship to
their patients. See, e.g., Black, 312 N.C. at 646, 325
S.E.2d at 482; King, ––– N.C.App. at ––––, 737
S.E.2d at 809.

All physicians in North Carolina, including those
who provide abortions, must also comply with statu-
tory requirements for informed consent or face civil
liability to their patients. Health care providers must
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comply with “the standards of practice among mem-
bers of the same health care profession with similar
training and experience situated in the same or simi-
lar communities” when they obtain informed consent.
N.C. Gen.Stat. § 90–21.13(a)(1). Providers must also
give patients information sufficient to give a reasona-
ble person “a general understanding of the procedures
or treatments and of the usual and most frequent risks
and hazards inherent in the proposed procedures or
treatments which are recognized and followed by
other health care providers engaged in the same field
of practice in the same or similar communities.” Id. §
90–21.13(a)(2).

If, however, a patient chooses not to consider
some information, that is a choice the physician
should ordinarily respect; the American College Of
Obstetricians and Gynecologists, for example, has
advised physicians that a patient's refusal of infor-
mation is “itself an exercise of choice, and its ac-
ceptance can be part of respect for the patient's au-
tonomy” and “[i]mplicit in the ethical concept of in-
formed consent is the goal of maximizing a patient's
freedoms.” Comm. on Ethics, Am. Coll. of Obstetri-
cians & Gynecologists, Comm. Op. # 439: Informed
Consent 7 (2009, reaffirmed 2012) (cited by Plain-
tiffs' expert, (Doc. 108 at ¶ 13); state's expert was a
committee member, (see Doc. 117–1 at p. 9)) (distin-
guishing a patient's refusal of information from other
exceptions to disclosure requirements).
FN11
If unusu-
al and rare circumstances exist such that information
ordinarily required for informed consent would cause
serious harm to the patient, physicians can and should
decline to disclose the information to the patient.
FN12


*5 Regardless of the Act, standard medical prac-
tice for abortion in North Carolina requires a provider
to discuss with the patient, among other things, the
nature of the procedure, the procedure's risks and
benefits, and alternatives available to the patient,
along with their respective risks and benefits. (See
Doc. 107 at ¶¶ 10, 19, 45; Doc. 108 at ¶ 14; Doc. 110
at ¶ 6; Doc. 111 at ¶ 7.) It also involves asking pa-
tients if they want to view the ultrasound images,
showing the images if the patient wants to see them,
and answering questions about the ultrasound. (See
Doc. 107 at ¶¶ 14, 21–22, 26; Doc. 108 at ¶ 21; Doc.
110 at ¶¶ 11, 15; Doc. 111 at ¶¶ 12, 15.) In the ab-
sence of the Act, Plaintiffs would not offer to display
and describe ultrasound images to some patients who
are at risk of significant psychological harm, (see
Doc. 107 at ¶¶ 28–29, 36–39; Doc. 110 at ¶¶ 16–19;
Doc. 111 at ¶¶ 14–15, 20–23; Doc. 112 at ¶ 18; Doc.
115 at ¶¶ 15–19), and Plaintiffs would not display
and describe the images to any patient seeking an
abortion unless the patient requested it. (See Doc. 107
at ¶¶ 14, 20–22, 26; Doc. 108 at ¶ 21; Doc. 110 at ¶¶
11, 15; Doc. 111 at ¶¶ 9, 15; Doc. 112 at ¶¶ 13–14,
19; Doc. 115 at ¶ 20.)

Thus, the parties agree that even in the absence
of the Act, it is appropriate for providers to offer the
information required by the speech-and-display pro-
vision to almost all patients and to provide the infor-
mation to all patients who want to hear and see it.
The dispute in this case therefore centers on whether
the state can compel providers to deliver the state's
message to women who do not want to hear it or who
are at risk of significant psychological harm from
receiving it.

C. First Amendment Principles
[1][2][3][4] The First Amendment generally pro-
hibits the government from requiring people to speak
its messages. See Agency for Int'l, Dev. v. Alliance
for Open Soc'y Int'l, Inc., ––– U.S. ––––, ––––, 133
S.Ct. 2321, 2327, 186 L.Ed.2d 398 (2013); Hurley v.
Irish–Am. Gay, Lesbian & Bisexual Grp. of Boston,
515 U.S. 557, 573, 115 S.Ct. 2338, 132 L.Ed.2d 487
(1995); Riley v. Nat'l Fed'n of the Blind of N.C., Inc.,
487 U.S. 781, 796–97, 108 S.Ct. 2667, 101 L.Ed.2d
669 (1988). Because “[m]andating speech that a
speaker would not otherwise make necessarily alters
the content of the speech,” speech compelled by the
government is typically considered content-based
regulation. Riley, 487 U.S. at 795, 108 S.Ct. 2667.
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Content-based speech compelled by the government
is generally subject to strict scrutiny, even where the
compelled speech is limited to factually accurate or
non-ideological statements. Id. at 797–98, 108 S.Ct.
2667; see also Greater Balt. Ctr. for Pregnancy Con-
cerns, Inc. v. Mayor of Balt., 721 F.3d 264, 283 (4th
Cir.2013). Strict scrutiny requires that the speech
restriction be narrowly tailored to promote a compel-
ling government interest. See United States v. Play-
boy Entm't Grp., 529 U.S. 803, 813, 120 S.Ct. 1878,
146 L.Ed.2d 865 (2000).

*6 Despite the apparent absolute nature of these
rules, courts have recognized certain areas of com-
pelled speech to which strict scrutiny does not apply.
One common area exempt from strict scrutiny is
compelled commercial speech, which is “expression
related solely to the economic interests of the speaker
and its audience.”
FN13
Cent. Hudson Gas & Elec.
Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557,
561, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). Such
speech is still entitled to First Amendment protection,
though the government has more leeway to impose
restrictions. Id. at 563, 100 S.Ct. 2343. Typically,
laws restricting or prohibiting non-misleading com-
mercial speech are subject to intermediate scrutiny,
under which the government must prove that the re-
striction directly advances and is narrowly tailored to
serve a substantial government interest. Id. at 566,
100 S.Ct. 2343. If, however, the government compels
people to disclose “purely factual and uncontroversial
information about the terms under which [their] ser-
vices will be available” in order to avoid misleading
advertisements, the regulation is scrutinized less
heavily, and the government need only show a rea-
sonable connection between its interest in preventing
deception and the regulation. Zauderer v. Office of
Disciplinary Counsel, 471 U.S. 626, 651, 105 S.Ct.
2265, 85 L.Ed.2d 652 (1985); see Glickman v.
Wileman Bros. & Elliott, Inc., 521 U.S. 457, 490, 117
S.Ct. 2130, 138 L.Ed.2d 585 (1997) (Souter, J., dis-
senting) (identifying Zauderer as the Supreme
Court's earliest examination of a commercial-speech
mandate). The Court has upheld disclosure rules in
the bankruptcy context under this same standard
when the compelled disclosures at issue were needed
to prevent deception in advertising. See Milavetz,
Gallop & Milavetz, P.A. v. United States, 559 U.S.
229, 249–50, 130 S.Ct. 1324, 176 L.Ed.2d 79 (2010).

The Supreme Court does not necessarily apply
rational basis review every time the government
compels speech in the context of professional adver-
tising. “Unjustified or unduly burdensome disclosure
requirements,” for example, “offend the First
Amendment.” Id. at 250, 130 S.Ct. 1324. The Court
has evaluated some restrictions and prohibitions on
professional advertising under intermediate scrutiny,
see In re R.M.J., 455 U.S. 191, 203–07, 102 S.Ct.
929, 71 L.Ed.2d 64 (1982), and others under strict
scrutiny. See NAACP v. Button, 371 U.S. 415, 438–
40, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963).

Moreover, the commercial speech doctrine is less
likely to apply when the speech regulation at issue is
content-based. For example, in Riley, the Supreme
Court considered a First Amendment challenge to a
statute requiring professional fundraisers to disclose
to potential donors the percentage of charitable con-
tributions collected during the previous twelve
months that were actually turned over to charity. 487
U.S. at 795, 108 S.Ct. 2667. In deciding to apply
strict scrutiny, the Court noted only that the Act was
a content-based regulation of speech because it was
compelled speech and that the speech could not be
labeled commercial when examined as a whole. Id. at
795–96, 108 S.Ct. 2667.

[5] Similarly, in Sorrell v. IMS Health Inc., the
Supreme Court held that a state statute that prohibited
pharmaceutical manufacturers from using prescriber-
identifying information for marketing was First
Amendment-protected expression that must be sub-
ject to “heightened judicial scrutiny.” ––– U.S. ––––
, ––––, 131 S.Ct. 2653, 2659, 180 L.Ed.2d 544
(2011). Even though the statute regulated commercial
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speech, the Court applied heightened scrutiny in
striking it down because it was content-based; its
express purpose was “to diminish the effectiveness of
marketing by manufacturers of brand-name drugs.”
Id. at ––––, 131 S.Ct. at 2663–64.
FN14
Heightened
scrutiny requires at a minimum that the provision at
issue must directly advance a substantial state interest
and be drawn to achieve that interest. See id. at ––––,
131 S.Ct. at 2667–68 (defining heightened scrutiny in
the commercial speech context.) It also requires that
the harms the provision prevents must be “real, not
merely conjectural,” and that the provision at issue
“in fact alleviate[s] these harms in a direct and mate-
rial way.” Turner Broad. Sys., Inc. v. FCC, 512 U.S.
622, 664, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994).

*7 Outside of the advertising context, it has long
been recognized that the state can require licenses
and impose reasonable regulations on professions
which require “a certain degree of skill and learning
upon which the community may confidently rely.”
Dent v. West Virginia, 129 U.S. 114, 122, 9 S.Ct.
231, 32 L.Ed. 623 (1889). In Dent, the Supreme
Court upheld a state law prohibiting the practice of
medicine without a license, holding that a state may
require a license so long as it is “appropriate to the
calling or profession, and attainable by reasonable
study or application.” Id. at 121–22, 9 S.Ct. 231; see
also Watson v. Maryland, 218 U.S. 173, 176, 30 S.Ct.
644, 54 L.Ed. 987 (1910). Similarly, in Keller v. State
Bar of California, the Supreme Court held that the
state may require lawyers to belong to an organized
bar that expended dues to fund activities germane to
the profession because of its interests in regulating
the profession and improving the quality of legal ser-
vices.
FN15
496 U.S. 1, 13–14, 110 S.Ct. 2228, 110
L.Ed.2d 1 (1990).

In a variety of contexts, the Supreme Court has
acknowledged the government's “interest in protect-
ing the integrity and ethics of the medical profession”
specifically. Washington v. Glucksberg, 521 U.S.
702, 731, 117 S.Ct. 2258, 138 L.Ed.2d 772
(1997).
FN16
States have routinely required that health
care providers conform to professional standards
within the field and provide competent medical ad-
vice. See Pickup v. Brown, 728 F.3d 1042, 1054–55
(9th Cir.2013) (collecting cases, noting that a doctor
“may not counsel a patient to rely on quack medi-
cine” (quotation marks omitted)).
FN17


States have also long required health care pro-
viders to give patients information they need to make
informed decisions about medical treatment. See,
e.g., Canterbury, 464 F.2d at 781 (“The cases
demonstrate that the physician is under an obligation
to communicate specific information to the patient
when the exigencies of reasonable care call for
it.”).
FN18
Thus, courts have routinely imposed civil
liability on physicians who have failed to provide
enough information to patients in advance of treat-
ment. Id.; see, e.g., Nelson v. Patrick, 73 N.C.App. 1,
10–12, 326 S.E.2d 45, 51–52 (1985) (citing N.C.
Gen.Stat. § 90–21.13). In doing so, courts have
linked informed consent and competent advice re-
quirements to standards of the profession and to well-
established negligence standards.
FN19
See Pickup, 728
F.3d at 1054–55.

Beyond generally applicable licensing systems
and enforcement of professional norms, just what
“professional speech”
FN20
means and whether it re-
ceives a different degree of protection under the First
Amendment is not particularly clear. See Stuart, 834
F.Supp.2d at 431 (noting that “the phrase has been
used by Supreme Court justices only in passing” and
collecting cases). Nonetheless, it is clear that individ-
uals do not surrender their First Amendment rights
entirely when they speak as professionals. In Casey,
the Court explicitly recognized a physician's First
Amendment rights and cited Wooley v. Maynard, 430
U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977),
which held that the state cannot compel a person to
speak the state's ideological message. Casey, 505
U.S. at 884, 112 S.Ct. 2791; see also Keller, 496 U.S.
at 13–14, 110 S.Ct. 2228 (holding that the state could
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not compel members of the state bar to fund “activi-
ties of an ideological nature”). The Supreme Court
also has noted in dicta that “[s]peech by professionals
obviously has many dimensions. There are circum-
stances in which we will accord speech by [profes-
sionals] ... the strongest protection our Constitution
has to offer.” Fla. Bar v. Went For It, Inc., 515 U.S.
618, 634, 115 S.Ct. 2371, 132 L.Ed.2d 541 (1995).

*8 In fact, the Fourth Circuit recently intimated
that where professionals are accredited and licensed,
the state has a lower interest in compelling their
speech. See Moore–King v. Cnty. of Chesterfield, 708
F.3d 560, 570 (4th Cir.2013). In Moore–King, the
Fourth Circuit upheld a regulation requiring profes-
sional fortune tellers to obtain and pay for licenses,
finding no First Amendment violation. Id. at 569–70.
The court noted that “[w]ith respect to an occupation
such as fortune telling where no accrediting institu-
tion like a board of law examiners or medical practi-
tioners exists, a legislature may reasonably determine
that additional regulatory requirements are neces-
sary.” Id. at 570.

In the health care context specifically, the Ninth
Circuit recently reiterated that “doctor-patient com-
munications about medical treatment receive substan-
tial First Amendment protection.” Pickup, 728 F.3d
at 1053 (emphasis omitted).
FN21
In Pickup, the court
characterized a statute that prohibited a certain kind
of psychotherapy for use with minors as a regulation
of conduct with only an incidental effect on speech.
Id. at 1055–56. The court found rational basis review
was appropriate because the statute “regulates only
treatment, while leaving mental health providers free
to discuss and recommend, or recommend against.”
Id. at 1056. Because the “overwhelming consensus”
of opinion within the profession was that the recom-
mended therapy was harmful and ineffective, the
Court found the legislature acted rationally in relying
on that consensus. Id. at 1057.

The Ninth Circuit in Pickup was guided by two
of its earlier speech cases. Id. at 1051–52. In NAAP,
the Court held that California's psychology licensing
scheme did not violate the First Amendment, as it
was content- and viewpoint-neutral and did not “dic-
tate what can be said between psychologists and pa-
tients during treatment.” 228 F.3d at 1054–56. The
Pickup court contrasted NAAP with Conant v. Wal-
ters, in which the Ninth Circuit applied strict scrutiny
to a federal policy declaration that a doctor's recom-
mendation or prescription of medical marijuana
would lead to revocation of the doctor's registration
to prescribe controlled substances. 309 F.3d 629, 639
(9th Cir.2002). The court recognized that “[b]eing a
member of a regulated profession does not, as the
government suggests, result in a surrender of First
Amendment rights,” and concluded that the content-
and viewpoint-based policy was not sufficiently nar-
rowly tailored. Id. at 637, 639; see Pickup, 728 F.3d
at 1056.
FN22
The court in Pickup characterized Co-
nant as holding that “content-or viewpoint-based
regulation of communication about treatment must be
closely scrutinized.” Pickup, 728 F.3d at 1056.

It is also clear that a state's regulation of profes-
sional speech must be consistent with the goals and
duties of the profession. In Legal Services Corp. v.
Velazquez, for example, the Supreme Court ex-
pressed concern about a statute that interfered with
traditional professional relationships by restricting
the kind of professional advice a lawyer could give.
531 U.S. 533, 121 S.Ct. 1043, 149 L.Ed.2d 63
(2001). The Court found that regulations which pro-
hibited federally-funded legal aid attorneys from ad-
vising clients about potential constitutional claims
violated the First Amendment, noting that
“[r]estricting ... attorneys in advising their clients and
in presenting arguments and analyses to the courts
distorts the legal system by altering the traditional
role of the attorneys.” Id. at 544, 121 S.Ct. 1043.
Likewise, in Milavetz, the Court narrowly construed
the statute at issue so as to avoid any concerns that
the statute would inhibit “frank discussion” between
attorney and client. 559 U.S. at 246, 130 S.Ct. 1324.
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Courts have been careful to insure that the regulation
at issue was in fact directed at the state's purported
interest in the profession. See Keller, 496 U.S. at 14,
110 S.Ct. 2228; Va. State Bd. of Pharmacy v. Va.
Citizens Consumer Council, Inc., 425 U.S. 748, 768,
96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) (discounting
state's interest in improving standards of pharmacists
where disclosure had more to do with retail sales than
with professional standards).

*9 [6] As a review of these authorities makes
clear, whether, when, and to what extent the govern-
ment can compel speech by a professional cannot be
established with hard and fast rules. See Healy v.
James, 408 U.S. 169, 180, 92 S.Ct. 2338, 33 L.Ed.2d
266 (1972) (“First Amendment rights must always be
applied ‘in light of the special characteristics of the ...
environment’ in the particular case.” (quoting Tinker
v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503,
506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969))); Moore–
King, 708 F.3d at 570 (recognizing “variability inher-
ent in occupational regulations,” and noting that
“[j]ust as the internal requirements of a profession
may differ, so may the government's regulatory re-
sponse based on the nature of the activity and the
need to protect the public” (citing Robert C. Post,
Democracy, Expertise, and Academic Freedom 134
n. 83 (2012) [hereinafter Post Book] )).
FN23
The use
of labels and categories is of limited utility. See But-
ton, 371 U.S. at 429, 83 S.Ct. 328. Rather, compelled
professional speech is more appropriately viewed on
a continuum, taking into account the regulatory con-
text, the nature of the professional relationship, the
degree of intrusion into the relationship, the reasons
and evidentiary support for the intrusion, and the
connection between the compelled speech and the
government's interests. See Riley, 487 U.S. at 796,
108 S.Ct. 2667 (“[The] lodestars in deciding what
level of scrutiny to apply to a compelled statement
must be the nature of the speech taken as a whole and
the effect of the compelled statement thereon.”);
Pickup, 728 F.3d at 1053–55 (explaining continuum
of First Amendment rights of professionals in deter-
mining whether regulation is of speech or of con-
duct); Centro Tepeyac, 722 F.3d at 193 (Wilkinson,
J., concurring) (“Compelled speech is not an all-or-
nothing matter.”).

II. Analysis
A. Standard
[7] The speech-and-display provision compels
speech by providers because it requires them, over
their objection, to show the real-time display and to
describe what can be seen to every single patient,
regardless of the patient's wishes and individual med-
ical needs. The state not only compels the delivery of
the message in all situations, but it also compels the
content of the message (the display and the verbal
description of the physical features of the fetus, if
any), the format of the message (in the physician's
own voice and on a screen the provider sets to face
the patient), exactly where the information must be
delivered (in the examining room), and when it must
be delivered (in the middle of a medical procedure
while the patient is disrobed and, for women in very
early stages of pregnancy, while she has a probe in
her vagina, at least four hours but no more than sev-
enty-two hours before the abortion). See N.C.
Gen.Stat. § 90–21.85(a). By delivering the infor-
mation in this way, providers appear to have adopted
the state's message, and patients are likely to assume
that the provider's speech delivered during a medical
procedure conveys ideas and messages the provider
endorses and has deemed “worthy of presentation.”
Hurley, 515 U.S. at 575, 115 S.Ct. 2338. (See Doc.
107 at ¶ 24; Doc. 111 at ¶ 17; Doc. 115 at ¶ 21); see
also Jennifer M. Keighley, Physician Speech & Man-
datory Ultrasound Laws: The First Amendment's
Limit on Compelled Ideological Speech, 34 Cardozo
L.Rev. 2347, 2374 (2013) (“Because of the fiduciary
relationship between physicians and their patients,
patients are likely to place significant value on the
physicians' speech about a medical procedure.”).

*10 To the extent the speech-and-display provi-
sion requires providers to deliver a message designed
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to persuade women not to terminate a pregnancy,
which the state forthrightly acknowledges is one of
its purposes, (see Doc. 118 at 25), it “imposes bur-
dens that are based on the content of speech and that
are aimed at a particular viewpoint.” See Sorrell, –––
U.S. at ––––, 131 S.Ct. at 2663–64. Requiring a phy-
sician or other health care provider to deliver the
state's content-based, non-medical message in his or
her own voice as if the message was his or her own
constitutes compelled ideological speech and war-
rants the highest degree of First Amendment protec-
tion. See Hurley, 515 U.S. at 579, 115 S.Ct. 2338
(“[T]he law ... is not free to interfere with speech for
no better reason than promoting an approved message
or discouraging a disfavored one, however enlight-
ened either purpose may strike the government”);
Casey, 505 U.S. at 884, 112 S.Ct. 2791 (citing
Wooley, 430 U.S. 705, 97 S.Ct. 1428); R.A.V. v. City
of St. Paul, 505 U.S. 377, 386, 112 S.Ct. 2538, 120
L.Ed.2d 305 (1992); Wooley, 430 U.S. at 716, 97
S.Ct. 1428. This is so even if the disclosure is limited
to factual information. See Riley, 487 U.S. at 797–98,
108 S.Ct. 2667.

The state contends that the speech-and-display
provision is related to medical care so that, consistent
with the state's traditional authority to regulate medi-
cal care, a lower standard of scrutiny should apply.
Plaintiffs appear to dismiss this argument completely,
contending that strict scrutiny always applies when
the state compels content-based speech. Yet Plain-
tiffs' approach overlooks the state's historic interest in
the health and safety of its citizens, which the state
may protect through reasonable regulation of the
medical profession, including compelled speech con-
sistent with professional norms. See discussion supra
Part I.C.

Nonetheless, the talismanic recitation that the
state has the authority to license and regulate health
care providers does not mean much merely by being
invoked. See Button, 371 U.S. at 429, 83 S.Ct. 328
(“[A] State cannot foreclose the exercise of constitu-
tional rights by mere labels.”); see also Edenfield v.
Fane, 507 U.S. 761, 770, 113 S.Ct. 1792, 123
L.Ed.2d 543 (1993) (holding that the fact that a state
accounting board's interests in maintaining ethical
standards “are substantial in the abstract does not
mean, however, that [the prohibition at issue] serves
them”). The Court cannot disregard the state's ex-
press ideological interest in determining what level of
scrutiny to apply, even if it is only one of several
interests at play.
FN24
See Sorrell, ––– U.S. at ––––,
131 S.Ct. at 2664. Therefore, it is appropriate to
evaluate the speech-and-display provision with
heightened scrutiny. See id. It is also appropriate to
apply heightened scrutiny because the state is seeking
to compel “doctor-patient communications about
medical treatment,” see Pickup, 728 F.3d at 1053,
and to create a new professional norm in a highly
regulated field where providers are educated special-
ists with significant training and expertise and who
are already licensed by the state.
FN25
See Moore–
King, 708 F.3d at 570; see also Dent, 129 U.S. at
122, 9 S.Ct. 231 (holding medical licensing require-
ments must be “appropriate to the calling or profes-
sion”).
FN26
There may be minimal First Amendment
concerns when the state compels compliance with
“standards of acceptable and prevailing medical prac-
tice,” see In re Guess, 327 N.C. 46, 52–53, 393
S.E.2d 833, 837 (1990) (internal quotation marks
omitted), but when the state seeks to compel speech
outside those prevailing practices, the issue is quite
different. See Post Book, supra, at 53–54.
FN27


*11 Even though the speech at issue is obviously
not commercial,
FN28
the heightened scrutiny applica-
ble to commercial speech restrictions provides a good
model for evaluating restrictions on professional
speech.
FN29
This is particularly so here, where “the
outcome is the same whether a special commercial
speech inquiry or a stricter form of judicial scrutiny is
applied.” See Sorrell, ––– U.S. at ––––, 131 S.Ct. at
2667. As stated earlier, heightened scrutiny requires
at a minimum that the provision directly advances a
substantial state interest and is drawn to achieve that
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interest. See id. at ––––, 131 S.Ct. at 2667–68. It also
requires that the harms the provision prevents are
“real, not merely conjectural,” and that the provision
at issue “in fact alleviate[s] these harms in a direct
and material way.” Turner Broad., 512 U.S. at 664,
114 S.Ct. 2445. This evaluation must take into ac-
count the regulatory context, the nature of the profes-
sional relationship, the degree of intrusion into it, the
reasons for the intrusion and evidentiary support for
the intrusion, and the connection between the com-
pelled speech and the government's interests. See
Riley, 487 U.S. at 796, 108 S.Ct. 2667; Pickup, 728
F.3d at 1053–55.

B. Application
[8] The state contends the speech-and-display
provision aids its interest in persuading women to opt
for childbirth over abortion,
FN30
(Doc. 118 at 25), by
providing information which makes it less likely the
woman will terminate the pregnancy. The state fur-
ther contends that the provision aids its interest in
voluntary and informed consent by reducing the risk
of psychological harm should the woman come to
know of the fetus's physical characteristics for the
first time after the abortion and thus to regret her de-
cision and by decreasing the likelihood of a coerced
abortion. These goals are accomplished, the state
contends, by showing the woman the physical char-
acteristics of her fetus to make her “aware of what
the implications of [abortion] are in terms of fetal
life.” (Doc. 133–1 at 6.)

The state's interests in protecting fetal health and
insuring voluntary and informed consent are valid
state interests. The state has made cogent arguments
that information about the physical characteristics of
the fetus conveyed as a result of the speech-and-
display provision could be helpful and relevant to
some patients considering abortion. (See Doc. 118 at
20.) And the state has offered some evidence to sup-
port this view. In a 2002 study cited by the state's
expert, (Doc. 117–1 at p. 6 ¶ 5), researchers deter-
mined that most women who were offered and ac-
cepted the opportunity to look at the ultrasound be-
fore an abortion viewed it “in a positive light, that it
would help them to make a better choice.” A.A.
Bamigboye et al., Issues in Medicine: Should Women
View the Ultrasound Image Before First–Trimester
Termination of Pregnancy, 92–6 S. Afr. Med. J. 430,
432 (2002). Other studies outside the abortion con-
text indicate that visual aids can be helpful in making
medical decisions. (See Doc. 117–1 at p. 5 ¶ 3 (col-
lecting articles).)

*12 This evidence, however, is not directed to
the speech actually compelled by the Act. The
speech-and-display provision does not merely require
providers to offer the real-time display and descrip-
tion to every patient, as the cited research indicates
would be helpful.
FN31
See Bamigboye, supra, at 432
(recommending that women receiving ultrasounds
“should be specifically asked whether they prefer to
see or not to see the image on the scan”). Rather, the
Act requires providers to actually deliver the infor-
mation to every single patient who seeks an abortion,
even those who object to receiving it or who would
be harmed by it. Providers must display and describe
to every single patient, even those who go so far as to
cover their eyes and block their ears to prevent re-
ceipt of the information. See N.C. Gen.Stat. § 90–
21.85(b); (see also Doc. 113–1 at 6.) They must do
the same to patients whose physical or mental health
would be placed at serious risk by the information
and the method and mode of delivery,
FN32
(see Doc.
107 at ¶¶ 36–39, 42; Doc. 108 at ¶ 26; Doc. 110 at ¶¶
14–16; Doc. 111 at ¶ 14; Doc. 112 at ¶ 18; Doc. 115
at ¶¶ 18–19), even if the patient asks the provider not
to show or describe the images. (See Doc. 107 at ¶
42; Doc. 108 at ¶ 11; Doc. 109 at ¶ 12; Doc. 110 at ¶
14; Doc. 111 at ¶ 14.) And they must speak this mes-
sage even though the Act itself provides that women
can give informed consent without actually seeing the
images or hearing the description. See N.C. Gen.Stat.
§§ 90–21.82, 90–21.85(b).

It is this compelled speech to which Plaintiffs
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object.
FN33
The state has been silent as to any reason
for requiring a provider to show and describe the fetal
images to a woman who has covered her eyes and
blocked her ears.
FN34
The state also offers no reason
for compelling providers to show and describe the
images to women the providers know will be harmed,
responding only that women who will be significant-
ly harmed by the message can avoid it because the
Act allows them to “avert their eyes” and “refuse to
hear” the message. The state's own expert witness
agrees that the delivery of the state's message in these
circumstances does not provide any information to
the patient and does not aid voluntary and informed
consent.
FN35
(See Doc. 113–1 at 7–8, 11.) To the ex-
tent the Act requires providers to speak the state's
message to women who cover their ears and eyes to
avoid the state's message, it is performative rather
than informative, and it does not serve any legitimate
purpose.

This is in stark contrast to the Casey statute,
which required providers only to make a patient
aware of the availability of a state-sponsored pam-
phlet concerning fetal characteristics. See Casey, 505
U.S. at 882, 112 S.Ct. 2791 (holding there is “no rea-
son why the State may not require doctors to inform a
woman seeking an abortion of the availability of ma-
terials relating to the consequences to the fetus, even
when those consequences have no direct relation to
her health” (emphasis added)). The statute did not
specify where or how the information had to be pro-
vided, and it did not require the provider to personal-
ly show information about fetal development to pa-
tients. Id. at 902–03, 112 S.Ct. 2791 (reprinting 18
Pa. Cons.Stat. § 3205 in full). The Act requires the
provider to deliver in his or her own voice infor-
mation the state deems relevant during the middle of
a medical procedure in the exact manner dictated by
the state, a much more significant intrusion than the
Casey statute's relatively passive requirements.
FN36

Cf. Hurley, 515 U.S. at 575, 115 S.Ct. 2338 (holding
that council was not required to admit gay, lesbian,
and bisexual group to parade because group's partici-
pation “would likely be perceived as having resulted
from the Council's customary determination about a
unit admitted to the parade, that its message was wor-
thy of presentation and quite possibly of support as
well”); Wooley, 430 U.S. at 715, 97 S.Ct. 1428
(“Compelling the affirmative act of a flag salute in-
volved a more serious infringement upon personal
liberties than the passive act of carrying the state
motto on a license plate.”).

*13 The statute at issue in Casey also explicitly
contained a therapeutic exception which did not “re-
quire a physician to comply with the informed con-
sent provisions ‘if he or she can demonstrate by a
preponderance of the evidence, that he or she reason-
ably believed that furnishing the information would
have resulted in a severely adverse effect on the
physical or mental health of the patient.’ ” 505 U.S.
at 883–84, 112 S.Ct. 2791. Thus, it did not “prevent
the physician from exercising his or her medical
judgment.” Id. at 884, 112 S.Ct. 2791.
FN37
Despite its
broader reach and the uncontradicted evidence that a
small subset of women will be harmed by the speech-
and-display provision, the Act does not contain even
a narrow medical or therapeutic exception. Not only
does the Act compel Plaintiffs to deliver the message
to women who would be harmed by it, but its rigid
requirements preclude the physician from delivering
the same or similar information in a different way
that might pose a lower risk of harm to the patient.
This is radically different from the speech in Casey,
and it calls into question the state's allegedly health-
based motivation. See Dent, 129 U.S. at 122, 9 S.Ct.
231.

The state has offered no real defense of this one-
size-fits-all requirement, and the only evidence the
state presents about psychological harm does not
contradict Plaintiffs' evidence. The state's expert in-
formation “simply because it might cause temporary
stress or anxiety,” and further testified that he is “not
aware of any evidence that patients will be harmed by
the provision of information.” (Doc. 117–1 at p. 6 ¶
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5.) He does not address or even mention those pa-
tients who have individual risk factors for more pro-
found psychological problems.
FN38


Plaintiffs have presented undisputed evidence
that compelled delivery of the state's message in the-
se situations would raise serious ethical issues and be
inconsistent with the purposes of the informed con-
sent rule. (See Doc. 107 at ¶ ¶ 24, 27, 31, 38, 42–43,
46–50; Doc. 108 at ¶¶ 11–12, 17, 22–23, 30; Doc.
109 at ¶¶ 13, 15–22; Doc. 110 at ¶¶ 15, 19, 22; Doc.
111 at ¶¶ 14–17, 22.) It is a basic precept of medical
ethics that physicians are charged with the duties to
not inflict harm on patients and to exercise their med-
ical judgment and discretion. See discussion supra
Part I.B.

Consistent with rules of medical ethics summa-
rized above, even the state's expert emphasizes that
“there can obviously be no rigid prescription” as to
what a patient medically and ethically should be told,
(Doc. 117–1 at p. 6 ¶ 4 (quotation marks omitted)),
and that an individual approach to patients is general-
ly required. (See Doc. 113–1 at 12; see also id. at 4
(agreeing physicians should have discretion to choose
how they obtain informed consent).) Further, he
agrees that informed consent procedures “must be
free of coercion,” should be “designed to facilitate
the capacity of rational beings to make judgments of
what they consider best, rather than what the physi-
cian or any other person might consider best for
them,” and should be free of paternalism. (Doc. 117–
1 at p. 6 ¶ 4 (quotation marks omitted).) These ethical
rules honoring medical judgment and discretion and
patient autonomy support accepting the patient's de-
cision not to receive the information and do not sup-
port forcing providers to give this information to
women who do not want it, who are not required to
receive it, and who take steps to avoid receiving it.

*14 The state attempts to justify the compelled
speech with the contention that showing a woman her
own fetus and describing it to her is the best way for
the state to express its interest in promoting life, as it
has the effect of encouraging the woman “to engage
in a moment of reflection about her decision whether
to terminate her pregnancy—and the gravity of that
decision.” (Doc. 118 at 26.) But the speech-and-
display provision is not the state's expression of its
own message promoting childbirth and discouraging
abortion. Rather, it compels a health care provider to
act as the state's courier and to disseminate the state's
message discouraging abortion, in the provider's own
voice, in the middle of a medical procedure, and un-
der circumstances where it would seem the message
is the provider's and not the state's. This is not al-
lowed under the First Amendment. See Wooley, 430
U.S. at 716, 97 S.Ct. 1428 (“[W]here the State's in-
terest is to disseminate an ideology, no matter how
acceptable to some, such interest cannot outweigh an
individual's First Amendment right to avoid becom-
ing the courier for such message.”). While “[t]he
government may use its voice and its regulatory au-
thority to show its profound respect for the life within
the woman,” Gonzales, 550 U.S. at 128, 127 S.Ct.
1610 (emphasis added), the Supreme Court has never
held that the government may use a professional's
voice to do the same. See Rosenberger v. Rector &
Visitors of Univ. of Va., 515 U.S. 819, 828, 833, 115
S.Ct. 2510, 132 L.Ed.2d 700 (1995) (stating that
when the government speaks for itself, it “may make
content-based choices,” but that “[i]n the realm of
private speech or expression, government regulation
may not favor one speaker over another”); Riley, 487
U.S. at 804, 108 S.Ct. 2667 (Scalia, J., concurring)
(“[I]t is safer to assume that the people are smart
enough to get the information they need than to as-
sume that the government is wise or impartial enough
to make the judgment for them.”). The state “does not
have a compelling interest in each marginal percent-
age point by which its goals are advanced.” Brown, –
–– U.S. at ––––, 131 S.Ct. at 2741 n. 9.

Defendants also contend that the speech-and-
display requirement furthers the state's interest in
promoting voluntary and informed consent by mak-
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ing women aware of the extent of fetal development,
by protecting women's psychological health by ensur-
ing that women are fully informed before making an
irreversible decision that they may come to regret,
FN39

and by reducing coerced abortions. Here, the state
relies on its traditional power to regulate the practice
of medicine so as to promote and protect patient
health.

This argument is undermined by the very struc-
ture of the Act, which does not require women to
receive the information about fetal development. Be-
cause the Act explicitly allows a woman to “refuse to
hear” the information, she can give voluntary and
informed consent even if she refuses to receive the
state's message. Indeed, the speech-and-display pro-
vision is in an entirely different section of the Act,
N.C. Gen.Stat. § 90–21.85, from the section dealing
with informed consent. Id. § 90–21.82. It is also un-
dermined by the state's expert, who agrees that re-
quiring the provider to deliver information to women
who refuse to listen does nothing to advance the
state's goals, (see Doc. 113–1 at 7–8, 11), and by the
state's willingness to require providers to inflict psy-
chological harm on some of their patients in order to
insure delivery of its message.
FN40


*15 Further, the state has not shown that the
speech-and-display provision is necessary to alleviate
a real harm. The state offers no evidence that psycho-
logical harm caused by learning of the fetus's physi-
cal characteristics after an abortion is substantial ei-
ther in numbers or degree, nor is there evidence that
the compelled disclosures ameliorate any such harm,
especially when they are not received.
FN41
(See Doc.
115 at ¶¶ 23–26.) In the face of Plaintiffs' evidence
that the provision will cause serious psychological
harm to some women, the state has not shown that its
interest “would be achieved less effectively absent
the regulation.” See Turner Broad., 512 U.S. at 662,
114 S.Ct. 2445 (quotation marks omitted).

The state's contention that the provision prevents
coercive abortions is completely unclear. To the ex-
tent Defendants contend that providers are coercing
abortions, the argument rests, at least in part, on an
assumption that health care providers do not fulfill
their legal and ethical duties to obtain informed con-
sent or, worse, actively coerce patients to undergo
abortions. There is no evidence before the Court that
either of these things is true, even in small meas-
ure.
FN42
Cf. Thompson v. W. States Med. Ctr., 535
U.S. 357, 374, 122 S.Ct. 1497, 152 L.Ed.2d 563
(2002) (noting, in dicta, that the “assumption that
doctors would prescribe unnecessary medications” is
questionable). All of Plaintiffs' evidence is to the
contrary. (See Doc. 107 at ¶¶ 10, 19, 45; Doc. 108 at
¶ 14; Doc. 110 at ¶ 6; Doc. 111 at ¶ 7.)

Even assuming provider-coerced abortion is a
real and not theoretical harm, the state has not shown
that the speech-and-display provision is directed at
alleviating this harm. If a provider is already in the
habit of unethically and illegally coercing abortions,
in violation of unquestionably valid informed consent
law and ethical rules, the addition of the speech-and-
display provision will not deter him or her from con-
tinuing to ignore the law. Rather than more regula-
tions that compel speech from ethical providers, bet-
ter enforcement of the existing rules is an obvious,
more direct solution. See Sorrell, –––U.S. at ––––,
131 S.Ct. at 2669–70 (holding that speech restriction
was not drawn to achieve state's interest where state
had not shown that existing, not content-based reme-
dies were inadequate).

To the extent Defendants contend that third-
parties, such as boyfriends, husbands, or parents, are
coercing abortions, Defendants have not provided
any evidence that the speech-and-display provision is
directed at preventing such coercion. Even under
intermediate scrutiny, the government's burden is
heavy, see Rubin v. Coors Brewing Co., 514 U.S.
476, 487, 115 S.Ct. 1585, 131 L.Ed.2d 532 (1995),
and the state cannot carry it here with mere conjec-
ture or speculation. Id.; cf. WV Ass'n of Club Owners
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& Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292,
305–06 (2009) (noting in the commercial speech con-
text that “restrictions must not be more extensive
than necessary” and that where a state has a compre-
hensive scheme to serve its interest, limitations on
commercial speech should “complement non-speech
alternatives,” not serve as substitutes for them).

*16 Even assuming the speech-and-display pro-
vision actually reduces the risk of psychological harm
or of coercive abortion, it burdens substantially more
speech than necessary. See Turner Broad., 512 U.S.
at 662, 114 S.Ct. 2445. There are many other ways to
provide the necessary information to patients without
hijacking the provider's voice in the middle of a med-
ical procedure. The A ct, generally applicable in-
formed consent law, and established medical practic-
es in North Carolina ensure that women are informed
several times in several ways of the availability of
information about fetal development and that it is
easily available to those women who believe it will
be helpful to their decision-making. See discussion
supra, n. 36. The A ct requires that its informed con-
sent disclosures be provided to the woman “individu-
ally,” and in a manner that ensures that “the woman
is not the victim of a coerced abortion.” N.C.
Gen.Stat. § 90–21.90(a). It further requires the pro-
vider to inform the patient that she has other alterna-
tives to abortion and that she is “free to withhold or
withdraw her consent to the abortion at any time.”
N.C. Gen.Stat. § 90–21.82(2)(d), (2)(f). The
uncontradicted evidence is that providers in the state
consider it to be part of the standard of care to offer
women the opportunity to view the ultrasound and to
ensure that women are not being coerced before they
perform an abortion. (See Doc. 107 at ¶¶ 14, 21–22,
26; Doc. 108 at ¶¶ 16, 21; Doc. 110 at ¶¶ 11, 15; Doc.
111 at ¶¶ 12, 15.)

In short, the state's arguments do nothing to
avoid the First Amendment issues raised by compel-
ling providers to speak the state's message to women
who refuse to hear it or who would be harmed by it.
Indeed, those arguments increase the First Amend-
ment concerns, given the lack of empirical evidence
for the supposed health interests put forth, the con-
flicts with established rules of medical ethics, and the
admitted non-medical and value-based motives be-
hind the Act. With no provision for a therapeutic ex-
ception or for a different method of delivery to wom-
en at serious risk of harm and with no evidence of
any benefit from delivering the message to women
who refuse to listen to it, the Act does not directly or
indirectly advance any of the proffered state interests
and is not drawn to achieve a substantial state inter-
est. It undermines well-established professional
norms in the medical field, without empirical justifi-
cation. It does not survive heightened scrutiny.

C. Casey is Consistent with this Result
Casey does not compel a different analysis. The
state contends that Casey stands for the proposition
that if a statute compels physicians to convey truth-
ful, non-misleading, and relevant information to pa-
tients, then it does not constitute an undue burden on
the woman's right to choose and, ipso facto, it passes
First Amendment muster. The state also points to two
federal courts of appeals cases which employed the
undue burden test to uphold compelled disclosure
laws in the abortion context against First Amendment
challenges. See Lakey, 667 F.3d 570; Planned
Parenthood Minn., N.D., S.D. v. Rounds, 686 F.3d
889 (8th Cir.2012) (“ Rounds II ”); 653 F.3d 662 (8th
Cir.2011) (“ Rounds I ”).

*17 In the due process context, Casey provides
an exhaustive and detailed analysis of the reasons the
state may regulate abortion providers and the ways in
which such regulation is permissible under the Four-
teenth Amendment. Casey does not provide a similar-
ly detailed analysis on the way to evaluate such laws
under the First Amendment. Rather, Casey refers to
the state's ability to license and regulate the practice
of medicine, contrasts it to the state's inability to
compel ideological speech, and concludes there is no
“constitutional infirmity in the requirement that the
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physician provide the information mandated by the
State here.” Casey, 505 U.S. at 884, 112 S.Ct. 2791
(emphasis added).

Despite its brevity, the First Amendment analy-
sis is clearly a traditional one, couched by its refer-
ence to Wooley in terms of compelled speech and by
its reference to the state's ability to regulate the prac-
tice of medicine in terms of professional speech. Ca-
sey did not purport to carve out a new First Amend-
ment exception or create a new standard of review for
all abortion-related speech cases. See Brown, –––
U.S. at ––––, 131 S.Ct. at 2734–38 (declining to
carve out novel First Amendment exception for vio-
lent video games); United States v. Stevens, 559 U.S.
460, 468–72, 130 S.Ct. 1577, 176 L.Ed.2d 435
(2010) (same for depictions of animal cruelty); see
also Pruitt v. Nova Health Sys., ––– U.S. ––––, 134
S.Ct. 617, 187 L.Ed.2d 400 (2013) (denying certiora-
ri from Oklahoma Supreme Court case holding simi-
lar statute unconstitutional under Casey ).

Nowhere else in First Amendment law is the
state's effort to compel speech evaluated by determin-
ing whether the compelled speech violates a different
constitutional right, much less a different constitu-
tional right belonging to a different person. Such an
interpretation of Casey would be inconsistent with
decades of First Amendment case law and would
ignore the values memorialized in the First Amend-
ment.

With due respect, Lakey and Rounds are wrongly
decided. They are not grounded in traditional First
Amendment principles, from which Casey did not
diverge. They read Casey as creating, in two sentenc-
es, an entirely new category of abortion-related com-
pelled speech to which a unique standard of review
applies. The application of a due process standard to
a First Amendment issue improperly conflates two
separate constitutional doctrines in a way that gives
short shrift to the First Amendment.
FN43


Even if the Court credited this standard of re-
view, the speech-and-display provision would not
pass First Amendment muster. It goes significantly
further than the statute at issue in Casey, and it would
not survive even under Defendants' proposed test.

Under Defendants' test, the state can compel
providers to speak so long as the information is truth-
ful, not misleading, and relevant. As discussed above,
the Act by its terms says that the information is not
necessary or relevant to every woman's decision, and
other provisions make sure that women are aware of
the availability of the information if she wants to
receive it. It is standard medical practice in North
Carolina to provide the information upon request. Yet
if a woman permissibly decides the information is not
relevant to her, or indeed would be harmful to her,
she must still be physically present, undressed or
half-undressed on an examining table, while the pro-
vider is compelled to deliver the state's message, a
message which, by the Act's own terms, is not neces-
sary for informed consent. Indeed, the state would
have a physician attempt to persuade a woman not to
have an abortion by showing and describing any
physical characteristics against the woman's will,
even if she will die if she continues her pregnancy
and even if she has a mental health history that makes
forced and graphic delivery of this information in the
middle of a medical procedure a risky proposition for
her.

*18 Instead of a “reasonable framework” within
which a woman makes the decision about terminating
a pregnancy, see Casey, 505 U.S. at 873, 112 S.Ct.
2791, the speech-and-display provision is more like
an unyielding straightjacket. It goes well beyond
“encourag[ing the pregnant woman] to know that
there are philosophic and social arguments of great
weight that can be brought to bear in favor of contin-
uing the pregnancy to full term” and “taking steps to
ensure that [her] choice is thoughtful and informed.”
Id. at 872, 112 S.Ct. 2791. By requiring providers to
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deliver this information to a woman who takes steps
not to hear it or would be harmed by hearing it, the
state has erected an obstacle and has moved from
“encouraging” to lecturing, using health care provid-
ers as its mouthpiece. See Riley, 487 U.S. at 804, 108
S.Ct. 2667 (Scalia, J., concurring). As discussed
above, there is no health reason for requiring the dis-
closure to women who take steps not to hear it or
would be harmed by hearing it, making this an “un-
necessary health regulation[ ]” which is not allowed
under Casey. See 505 U.S. at 878, 112 S.Ct. 2791.

D. Conclusion
For the foregoing reasons, the one-size-fits-all
speech-and-display provision violates Plaintiffs' First
Amendment rights. The Act requires providers to
deliver the state's message to women who take steps
not to hear it and to women who will be harmed by
receiving it with no legitimate purpose. Thus, it is
overbroad, and it does not directly advance the state's
interests in reducing psychological harm to women or
in increasing informed and voluntary consent. To the
extent the Act requires providers to deliver the state's
message designed to discourage abortion, it is an
impermissible attempt to compel these providers to
deliver the state's message in favor of childbirth and
against abortion. Plaintiffs are entitled to summary
judgment.

III. Modification of Preliminary Injunction
At the preliminary injunction stage, Defendants
agreed that the requirements of the speech-and-
display provision rise and fall together. Now, in two
sentences and without explanation, Defendants re-
quest that the Court enjoin the enforcement of only
the first sentence of § 90–21.85(a)(2) and § 90–
21.85(a)(4) in the alternative to enjoining the speech-
and-display provision in its entirety. (Doc. 118 at 31–
32.) It is not clear how the remaining provisions of §
90–21.85 would function in the absence of subsec-
tions (a)(2) and (a)(4), and the Defendants essentially
ask the Court to rewrite the statute so that it is consti-
tutional. (Doc. 159 at 51–52.) The Court declines the
invitation.

DUE PROCESS CLAIM
Plaintiffs also contend that N.C. Gen.Stat. § 90–
21.85 violates substantive due process. As an initial
matter, Defendants argue that Plaintiffs lack standing
to challenge the Act on due process grounds to the
extent they seek to do so on behalf of their patients.
Generally, “even when the plaintiff has alleged injury
sufficient to meet the ‘case or controversy’ [standing]
requirement, ... the plaintiff generally must assert his
own legal rights and interests, and cannot rest his
claim to relief on the legal rights or interests of third
parties.” Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct.
2197, 45 L.Ed.2d 343 (1975).

*19 [9] Under the doctrine of third-party stand-
ing, however, a plaintiff may assert the rights of an-
other with whom the plaintiff has a “close” relation-
ship if there is a “ ‘hindrance’ to the possessor's abil-
ity to protect his own interests.” Kowalski v. Tesmer,
543 U.S. 125, 129–30, 125 S.Ct. 564, 160 L.Ed.2d
519 (2004). The Supreme Court has “been quite for-
giving with these criteria in certain circumstances,”
including those in which the “enforcement of the
challenged restriction against the litigant would re-
sult indirectly in the violation of third parties' rights.”
Id. at 130, 125 S.Ct. 564 (quotation marks omitted).
A plurality of the Supreme Court and several courts
of appeal have allowed physicians and providers to
assert their patients' constitutional right to an abor-
tion. See, e.g., Singleton v. Wulff, 428 U.S. 106, 118,
96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); Aid for Wom-
en v. Foulston, 441 F.3d 1101, 1112 (10th Cir.2006);
Planned Parenthood of N. New England v. Heed, 390
F.3d 53, 56 n. 2 (1st Cir.2004), vacated on other
grounds, 546 U.S. 320, 126 S.Ct. 961, 163 L.Ed.2d
812 (2006); Planned Parenthood of Idaho, Inc. v.
Wasden, 376 F.3d 908, 916–18 (9th Cir.2004); N.Y.
State Nat'l Org. for Women v. Terry, 886 F.2d 1339,
1346–48 (2d Cir.1989).

[10] Plaintiffs here satisfy both prongs of the test
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for third-party standing. Plaintiff physicians and pro-
viders and their patients have a sufficiently close re-
lationship in the abortion context that Plaintiffs “can
reasonably be expected properly to frame the issues
and present them with the necessary adversarial
zeal.” Sec'y of State v. Joseph H. Munson Co., 467
U.S. 947, 956, 104 S.Ct. 2839, 81 L.Ed.2d 786
(1984). Further, women seeking abortions face genu-
ine obstacles to litigation. A woman's interest in the
privacy of her decision may keep her from coming
forward to present her own case. Furthermore, a
woman seeking to assert her due process right to an
abortion faces “imminent mootness” presented by
pregnancy's inherent time limitations. See Singleton,
428 U.S. at 117, 96 S.Ct. 2868. Plaintiffs' relation-
ships to their patients and their patients' obstacles to
litigation are indistinguishable from those in the cases
cited above. Accordingly, Plaintiffs have standing to
assert the rights of their patients “as against govern-
mental interference with the abortion decision.” Id. at
118, 96 S.Ct. 2868.

Plaintiffs contend that the Act's speech-and-
display provision violates substantive due process
because it is irrational. Due process requires that all
laws at a minimum be “rationally related to a legiti-
mate governmental objective.” Multimedia Publ'g
Co. of S.C. v. Greenville–Spartanburg Airport Dist.,
991 F.2d 154, 159 (4th Cir.1993). Having already
struck down the Act's speech-and-display provision,
the Court declines to reach this issue beyond its hold-
ings on the First Amendment issue, denying both
parties' motions on this ground as moot.

VAGUENESS CLAIM
Finally, Plaintiffs contend that the Act is void as
vague. In response, Defendants urge the Court to
adopt savings constructions to eliminate any alleged
vagueness. Plaintiffs agree with Defendants' pro-
posed constructions. Specifically, the parties agree
that (1) the term “advanced practice nurse practition-
er in obstetrics” included in the definition of qualified
technician, N.C. Gen.Stat. § 90–21.81(9), should be
defined as “a nurse practitioner who is certified in
obstetrical ultrasonography,” (Doc. 118 at 11; Doc.
127 at 28); (2) the seventy-two-hour exception, N.C.
Gen.Stat. § 90–21.85(a), should be construed as per-
mitting an alternative means of compliance by which
a physician other than the provider may perform an
ultrasound and complete the required certification
within seventy-two hours before the abortion, (Doc.
118 at 11–12; Doc. 127 at 28–29.); (3) a physician or
qualified professional may provide the information in
section 90–21.82(1), but a physician must “be availa-
ble to ask and answer questions within the statutory
timeframe upon request of the patient or the qualified
professional,” (Doc. 106 at 35 (citing Stuart, 834
F.Supp.2d at 435)); and (4) the Act imposes no crim-
inal penalties. (Doc. 106 at 34; Doc. 118 at 13.)

*20 A law is void for vagueness where people of
“common intelligence must necessarily guess at its
meaning and differ as to its application.” Connally v.
Gen. Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70
L.Ed. 322 (1926). However, “[w]here fairly possible,
courts should construe a statute to avoid a danger of
unconstitutionality.” Planned Parenthood Ass'n of
Kansas City v. Ashcroft, 462 U.S. 476, 493, 103 S.Ct.
2517, 76 L.Ed.2d 733 (1983). The Court's reading of
the challenged provisions is the same as the parties',
such that the Act is not void as vague. See, e.g.,
W.Va. Mfrs. Ass'n v. West Virginia, 714 F.2d 308,
314 (4th Cir.1983) (finding statute not void for
vagueness where “[t]he meaning of its language is
discoverable from the context”). Further, as the Court
concludes that the speech-and-display provision is
unconstitutional, any challenge to the seventy-two-
hour exception is moot.

CONCLUSION
For the foregoing reasons, both parties' motions
for summary judgment, (Docs. 105, 117), will be
granted in part and denied in part. A permanent in-
junction and final judgment will follow.

FN1. See N.C. Gen.Stat. § 90–21.81(8), (9)
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(defining “qualified professional” and “qual-
ified technician”).

FN2. The Court has granted Plaintiffs' mo-
tion to strike declarations of experts not
properly identified during discovery on
which Defendants seek to rely. (See Doc.
162.) Though Defendants listed the affida-
vits in their summary judgment motion, they
barely cited them in their briefs. The Court
has relied only on the evidence before it by
affidavits, depositions, and learned treatises
cited in the affidavits of experts. No party
has made more than passing reference to
legislative history.

FN3. The parties initially agreed that the
facts are undisputed. (See Doc. 142 at 1.)
Later, some disputes arose as to whether cer-
tain facts are material. (See generally Doc.
158.)

FN4. Defendants contend the necessity of a
vaginal ultrasound is disputed, (Doc. 158 at
8), but they have offered no evidence to the
contrary.

FN5. See generally Tom L. Beauchamp &
James F. Childress, Principles of Biomedical
Ethics 99–239 (6th ed.2009) (cited by state's
expert, (Doc. 117–1 at pp. 4–5 ¶ 1), and
Plaintiffs' expert, (Doc. 108 at ¶¶ 12, 15–16,
18)); Comm. on Ethics, Am. Coll. of Obste-
tricians & Gynecologists, Comm. Op. # 390:
Ethical Decision Making in Obstetrics and
Gynecology (2007) (cited by Plaintiffs' ex-
pert, (Doc. 108 at ¶ 12); state's expert was a
committee member, (see Doc. 117–1 at p.
9)).

FN6. See Doc. 107 at ¶ 25; Doc. 108 at ¶¶
12, 14–15; Doc. 109 at ¶ 18; Doc. 110 at ¶¶
15, 22; Doc. 111–2 at 2; Doc. 112 at ¶ 12;
Doc. 117–1 at p. 4 ¶ 1. See generally Beau-
champ & Childress, supra, at 99–140.

FN7. See Doc. 108 at ¶¶ 15, 19; Doc. 109 at
¶ 16; Doc. 110 at ¶ 22; Doc. 112 at ¶ 15;
Doc. 113–1 at 3; Doc. 117–1 at p. 4 ¶ 1. See
generally Beauchamp & Childress, supra, at
99–105.

FN8. See Doc. 107 at ¶ 46; Doc. 108 at ¶¶
12–13, 25; Doc. 109 at ¶¶ 13–14; Doc. 110
at ¶ 19; Doc. 112 at ¶ 22; see also Doc. 107
at ¶ 48; Doc. 113–1 at 12; see also Jacobs v.
Physicians Weight Loss Ctr. of Am., Inc.,
173 N.C.App. 663, 668, 620 S.E.2d 232,
236 (2005) (requiring the physician to “act
in good faith and with due regard to the in-
terests” of the patient) (quoting Tin Origi-
nals, Inc. v. Colonial Tin Works, Inc., 98
N.C.App. 663, 666, 391 S.E.2d 831, 833
(1990)). See generally Beauchamp & Chil-
dress, supra, at 197–239.

FN9. See Doc. 107 at ¶ 48; Doc. 108 at ¶¶
12, 26; Doc. 109 at ¶ 20; Doc. 110 at ¶ 19;
Doc. 112 at ¶ 18; see also Comm. Op. # 390,
supra, at 3. See generally Beauchamp &
Childress, supra, at 149–96.

FN10. See Doc. 107 at ¶¶ 46–47; Doc. 109
at ¶¶ 14, 20; Doc. 112 at ¶ 22; Doc. 113–1 at
4, 12; see, e.g., Black v. Littlejohn, 312 N.C.
626, 646, 325 S.E.2d 469, 482 (1985); King
v. Bryant, –––N.C.App. ––––, ––––, 737
S.E.2d 802, 809 (2013).

FN11. See also Elysa Gordon, Multicultur-
alism in Medical Decisionmaking: The No-
tion of Informed Waiver, 23 Fordham Urb.
L.J. 1321, 1340 (1996) (collecting authori-
ties on waiver of informed consent rights).
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FN12. While providers should withhold in-
formation only in rare circumstances and
with great caution, Comm. Op. # 439, supra,
at 7, medical ethics and the principles of in-
formed consent “require the exercise of
judgment. Disclosure may be excused, for
example, if in the doctor's judgment the pa-
tient's emotional ability to handle the infor-
mation is compromised.” Barbara L. Atwell,
The Modern Age of Informed Consent, 40 U.
Rich. L.Rev. 591, 595 (2006). Salgo v. Le-
land Stanford Jr. University Board of Trus-
tees, one of the watershed informed consent
cases, expressly noted this therapeutic ex-
ception and its limits, 154 Cal.App.2d 560,
317 P.2d 170, 181 (1957), as did Canterbury
v. Spence, 464 F.2d 772, 789
(D.C.Cir.1972). See Gordon, supra, at
1338–39; Richard E. Shugrue & Kathryn
Linstromberg, The Practitioner's Guide to
Informed, Consent, 24 Creighton L.Rev.
881, 905–08 (1991); see also Butler v.
Berkeley, 25 N.C.App. 325, 341–42, 213
S.E.2d 571, 581–82 (1975) (discussing value
of physician judgment in disclosing risks
and benefits and noting the “primary im-
portance” of “the best interest of [the] pa-
tient.”). In other contexts, North Carolina
law recognizes the necessity of withholding
certain kinds of information from a patient.
See, e.g., N.C. Gen.Stat. § 160A–168(c)(1)
(establishing that an employee is entitled to
see his or her personnel file, except for “in-
formation concerning a medical disability,
mental or physical, that a prudent physician
would not divulge to his patient”).

FN13. Speech that triggers lesser scrutiny
pursuant to the commercial speech doctrine
must be purely commercial; when speech “is
inextricably intertwined with otherwise fully
protected speech,” strict scrutiny applies. Ri-
ley, 487 U.S. at 796, 108 S.Ct. 2667.

FN14. See also Entm't Software Ass'n v.
Blagojevich, 469 F.3d 641, 652 (7th
Cir.2006) (applying strict scrutiny to regula-
tion requiring the application of a sticker
marked “18” on “sexually explicit” games
because the sticker communicated a non-
factual, “subjective[,] and highly controver-
sial message”); cf. Brown v. Entm't Merchs.
Ass'n, –––U.S. ––––, ––––, 131 S.Ct. 2729,
2738, 180 L.Ed.2d 708 (2011) (applying
strict scrutiny to strike down regulation pro-
hibiting sale or rental of violent video games
to minors and requiring “18” packaging la-
bel).

FN15. Courts have similarly held that states
may regulate the licensing of other profes-
sions without running afoul of the Constitu-
tion. See, e.g., Nat'l Ass'n for Advancement
of Psychoanalysis v. Cal. Bd. of Psychology
(NAAP), 228 F.3d 1043, 1051 (9th Cir.2000)
(mental health professionals); Mitchell v.
Clayton, 995 F.2d 772, 774 (7th Cir.1993)
(acupuncturists); Accountant's Soc'y of Va.
v. Bowman, 860 F.2d 602, 605 (4th
Cir.1988) (accountants); Underhill Assocs.,
Inc. v. Bradshaw, 674 F.2d 293, 296 (4th
Cir.1982) (securities broker-dealers); Locke
v. Shore, 682 F.Supp.2d 1283, 1292
(N.D.Fla.2010) (interior designers).

FN16. See also Gonzales v. Carhart, 550
U.S. 124, 157, 127 S.Ct. 1610, 167 L.Ed.2d
480 (2007) (“Under our precedents it is clear
the State has a significant role to play in
regulating the medical profession.”); Roe v.
Wade, 410 U.S. 113, 154, 93 S.Ct. 705, 35
L.Ed.2d 147 (1973) (recognizing the state's
ability to impose reasonable regulations to
protect its interest in safeguarding health and
to maintain medical standards); Barsky v.
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Bd. of Regents, 347 U.S. 442, 451, 74 S.Ct.
650, 98 L.Ed. 829 (1954) (indicating the
state has “legitimate concern for maintaining
high standards of professional conduct” in
the practice of medicine).

FN17. See also Robert Post, Informed Con-
sent to Abortion: A First Amendment Analy-
sis of Compelled Physician Speech, 2007 U.
Ill. L.Rev. 939, 949 (2007) [hereinafter Post
Article].

FN18. See generally Planned Parenthood of
Cent. Mo. v. Danforth, 428 U.S. 52, 67 n. 8,
96 S.Ct. 2831, 49 L.Ed.2d 788 (1976) (in-
terpreting the term “informed consent” to
mean “the giving of information to the pa-
tient as to just what would be done and as to
its consequences”); James A. Bulen, Jr.,
Complementary and Alternative Medicine:
Ethical and Legal Aspects of Informed Con-
sent to Treatment, 24 J. Legal Med. 331,
333–35 (2003); Sonia M. Suter, The Politics
of Information: Informed Consent in Abor-
tion & End–of–Life Decision Making, 39
Am. J.L. & Med. 7, 11–17 (2013); Erin
Talati, When A Spoonful of Sugar Doesn't
Help the Medicine Go Down: Informed
Consent, Mental Illness, and Moral Agency,
6 Ind. Health L.Rev. 171, 176–77 & n. 17
(2009). This rule is an extension of the ap-
plication of the common law of assault and
battery to medical care, when courts histori-
cally held that a physician could not perform
an operation without his patient's consent.
See., e.g., Schloendorff v. Soc'y of N.Y.
Hosp., 211 N.Y. 125, 105 N.E. 92, 93–94
(1914) (“Every human being of adult years
and sound mind has a right to determine
what shall be done with his own body.”),
abrogated on other grounds by Bing v.
Thunig, 2 N.Y.2d 656, 163 N.Y.S.2d 3, 143
N.E.2d 3 (1957).

FN19. Perhaps because of this traditional
approach, this kind of regulation historically
raised barely a whisper of First Amendment
concern. See Pickup, 728 F.3d at 1054 (not-
ing that “doctors are routinely held liable for
giving negligent medical advice to their pa-
tients, without serious suggestion that the
First Amendment protects their right to give
advice that is not consistent with the accept-
ed standard of care”); see also Post Article,
supra, at 950; Frederick Schauer, The
Boundaries of the First Amendment: A Pre-
liminary Exploration of Constitutional Sali-
ence, 117 Harv. L.Rev. 1765, 1767 (2004)
(“[T]he question whether the First Amend-
ment shows up at all [in cases implicating
speech] is rarely addressed, and the answer
is too often simply assumed.”). See general-
ly Amanda McMurray Roe, Not–So–
Informed Consent: Using the Doctor–
Patient Relationship to Promote State–
Supported Outcomes, 60 Case W. Res.
L.Rev. 205, 205–13 (2009) (describing in-
formed consent doctrine historically and the
“relatively recent development of informed
consent statutes for specific procedures”).

FN20. The modern “professional speech
doctrine” traces its roots to concurrences by
Justice White in Lowe v. SEC, 472 U.S. 181,
105 S.Ct. 2557, 86 L.Ed.2d 130 (1985)
(striking down permanent injunction against
publishing non-personalized investment ad-
vice), and Justice Jackson in Thomas v. Col-
lins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed.
430 (1945) (holding unconstitutional a Tex-
as law that criminalized labor union mem-
bership solicitation without first obtaining
an organizer's card).

FN21. See also Centro Tepeyac v. Mont-
gomery Cnty., 722 F.3d 184, 186 (4th
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Cir.2013) (affirming district court's applica-
tion of strict scrutiny on undeveloped record
to uphold preliminary injunction against
county resolution requiring pregnancy re-
source centers to post disclosure signs); cf.
Cooksey v. Futrell, 721 F.3d 226, 234–39
(4th Cir.2013) (applying First Amendment
standing principles to appellant's claim that
prohibition on practicing dietetics/nutrition
without a license and state's regulation of his
diet website violated his First Amendment
rights).

FN22. See also Wollschlaeger v. Farmer,
880 F.Supp.2d 1251, 1255, 1261–62
(S.D.Fla.2012) (applying strict scrutiny to
invalidate a state statute prohibiting doctors
from asking patients whether they own fire-
arms because it was content-based and went
beyond “permissible regulation of profes-
sional speech or occupational conduct that
imposed a mere incidental burden on
speech”).

FN23. See also Rodney A. Smolla, Smolla
& Nimmer on Freedom of Speech § 2:12 at
2–14 (3d ed.2013) (“The [Supreme] Court
consistently refuses to adopt an absolutist
position in most areas, yet it also tends to
devise doctrines tailored to specific topic ar-
eas that are highly protective of freedom of
speech, requiring much more than a mere
‘reasonable basis' for any governmental ac-
tion abridging speech.”).

FN24. Abortion is not just a personal and
medical decision; it is, in our culture, a part
of the political landscape. See generally Ca-
sey, 505 U.S. 833, 112 S.Ct. 2791. The Su-
preme Court has “long recognized that it is
difficult to distinguish politics from enter-
tainment, and dangerous to try.” Brown, –––
U.S. at ––––, 131 S.Ct. at 2733. To some ex-
tent the same can be said about the intersec-
tion of politics and abortion. Even outside
the abortion context, it does not take much
imagination to identify serious problems
with allowing the government to justify
compelled speech on one basis when its
primary purpose is otherwise. Under the
guise of promoting informed consent, for
example, the state might require physicians
to show gruesome videos of surgery to pa-
tients, when the real purpose was to reduce
medical costs by discouraging patients from
choosing expensive surgery.

FN25. See, e.g., N.C. Gen.Stat. § 90–9.1, –
9.3, –9.4, –171.30. Just as physicians cannot
advise patients based on “quack medicine,”
Pickup, 728 F.3d at 1054, states cannot
compel professional speech based on outlier
research or opinions, on uninformed intui-
tion, or for political or other non-medical
purposes. See Post Book, supra, at 53.

FN26. Cf. Keller, 496 U.S. at 13–14, 110
S.Ct. 2228 (holding that while the state may
require lawyers to belong to an organized
bar because of its interests in regulating the
profession and improving the quality of le-
gal services, the state cannot compel mem-
bers of the state bar to fund “activities of an
ideological nature” which fall outside the
state's interest in regulating the profession
and improving services); Va. State Bd. of
Pharmacy, 425 U.S. at 768, 96 S.Ct. 1817
(holding that state's proffered interest in
maintaining professional standards was
“greatly undermined by the fact that high
professional standards, to a substantial ex-
tent, are guaranteed by the close regulation
to which pharmacists in Virginia are sub-
ject”); Pickup, 728 F.3d at 1057 (detailing
numerous studies justifying state's prohibi-
tion of certain psychological treatments for
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minors).

FN27. Cf. Joan H. Krause,
Reconceptualizing Informed Consent in an
Era of Health Care Cost Containment, 85
Iowa L.Rev. 261, 380, 382 (1999) (discuss-
ing specific breast cancer informed consent
statutes that “provide for the creation of
standardized informational summaries by an
independent medical body ” and determine
information to be disclosed based on “exclu-
sively medical criteria” (emphasis added)).

FN28. Defendants make a passing reference
to the commercial speech doctrine, but the
speech-and-display provision does not regu-
late “expression related solely to the eco-
nomic interests of the speaker and its audi-
ence,” such that it would be subject to in-
termediate scrutiny pursuant to the commer-
cial speech doctrine. See Cent. Hudson, 447
U.S. at 561, 100 S.Ct. 2343; see also Riley,
487 U.S. at 795–96, 108 S.Ct. 2667; Moore–
King, 708 F.3d at 568. No one contends that
the rational basis test from the Zauderer line
of commercial-speech cases applies, as in-
deed it could not: the speech-and-display
provision compels speech as part and parcel
of the delivery of professional advice and
services, not in the context of advertising.

FN29. See Post Book, supra, at 43 (“If the
circulation of commercial information
serves the value of democratic competence,
so also does the circulation of expert
knowledge. Constitutional protections for
the dissemination of expert knowledge
should therefore be roughly analogous to
those applicable to the circulation of com-
mercial information.”).

FN30. The state also refers to this interest as
“protecting fetal life,” (Doc. 118 at 27), and
“promoting life.” (Id. at 24.)

FN31. Plaintiffs agree that it is appropriate
to offer the visual information to most pa-
tients as a general matter and that it is stand-
ard practice to answer questions about what
can be seen on the visual depiction. See dis-
cussion supra Part I.B; (see also Doc. 107 at
¶ 26; Doc. 108 at ¶ 21; Doc. 110 at ¶ 15.)

FN32. It is undisputed that some women in
particular mental health or physical circum-
stances are at risk of suffering serious and
lasting psychological or emotional harm if
they watch the display and hear the descrip-
tion in the inflexible mode and manner re-
quired by the speech-and-display provision,
especially if the message is delivered with-
out their consent or over their objection.
(See Doc. 107 at ¶¶ 38–39; Doc. 108 at ¶ 26;
Doc. 110 at ¶¶ 16–18; Doc. 111 at ¶¶ 20–22;
Doc. 114 at ¶¶ 5–6; Doc. 115 at ¶¶ 18–19.)

FN33. Plaintiffs also object to delivering
this information to women who do not af-
firmatively consent to receiving it. In view
of the Court's resolution of the issue other-
wise, it is unnecessary to reach this conten-
tion. No one contends the state can force
women to receive the state's message. See
generally Caroline Mala Corbin, The First
Amendment Right Against Compelled Lis-
tening, 89 B.U.L.Rev. 939 (2009).

FN34. When pressed on this point at oral ar-
gument, the state continued its efforts to
convert the Act into a statute that merely re-
quired providers to offer the information to
patients. (Doc. 159 at 17–18.) As noted
elsewhere, providers must do more than of-
fer the information; they must deliver the in-
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formation. Indeed, while on the one hand the
state's argument emphasized that a pregnant
woman seeking an abortion can choose not
to hear and see the information, elsewhere
the state seemed to suggest that the woman
should “be a man about it” and “hear what is
not pleasant to hear.” (See id. at 15.)

FN35. Moreover, the uncontroverted evi-
dence shows that forcing at-risk patients to
cover their eyes and ears to avoid receiving
the message does not remove the potential
for serious psychological harm. In fact, the
uncontroverted evidence is that performing
the procedure while the patient resists is it-
self harmful. (See Doc. 107 at ¶¶ 31–32;
Doc. 108 at ¶ 24; Doc. 110 at ¶ 22; Doc. 115
at ¶¶ 20–21.) It seems unexceptionable to
conclude, for example, that serious psycho-
logical harm could result from requiring a
woman who became pregnant as a result of
rape to lie half-undressed with a vaginal
probe inside her while she listens to an un-
wanted message from a medical professional
who has refused to listen to her wishes, es-
pecially if she were blindfolded to avoid the
message. (See Doc. 107 at ¶ 31.) Defend-
ants' expert concedes that requiring the un-
willing patient to close her eyes and cover
her ears is not a very good solution, because
in the same paragraph in which he says it is
sufficient to avoid harm, he also says if the
woman does not want to hear the descrip-
tion, she “at all times has the option to
choose not to proceed” with the abortion.
(Doc. 117–1 at p. 6 ¶ 6.) This is inconsistent
with the Act, which is clear that the woman
does not have to hear the description and al-
so constitutes the very definition of an un-
due burden, as it forces a woman to choose
between her legal right to choose abortion
and exposing herself to a significant risk of
psychological damage. See discussion infra
Part II.C.

FN36. In provisions not challenged here on
First Amendment grounds, the Act also goes
beyond Casey to require the provider to tell
the patient twenty-four hours before the
abortion that the speech-and-display proce-
dure is available. See N.C. Gen.Stat. § 90–
21.82(1)(e). Regardless of the Act, the
standard practice in North Carolina is for
providers to offer to show the real-time dis-
play during the ultrasound. (See Doc. 107 at
¶¶ 14, 21–22, 26; Doc. 108 at ¶ 21; Doc. 110
at ¶¶ 11, 15; Doc. 111 at ¶¶ 12, 15.) Women
must also be informed of the availability of
similar information on a state-provided web-
site and in state-provided printed materials.
See N.C. Gen.Stat. § 90–21.82(2)(e).

FN37. See also Tex. Med. Providers Per-
forming Abortion Servs. v. Lakey, 667 F.3d
570, 578 (5th Cir.2012) (noting that similar
Texas law requires patient to hear medical
explanation of sonogram unless she falls un-
der three exceptions). In Gonzales, the Su-
preme Court held that a statute prohibiting a
particular method of ending fetal life in the
later stages of pregnancy was not facially
unconstitutional despite not providing for a
health exception. 550 U.S. at 163, 127 S.Ct.
1610. Gonzales is distinguishable for several
reasons. First, the statute at issue in Gonza-
les regulated conduct, and it was challenged
as an undue burden under the Fourteenth
Amendment, not as a First Amendment vio-
lation. Moreover, the absence of an excep-
tion in Gonzales furthered one of Congress's
legitimate interests—“drawing boundaries to
prevent certain practices that extinguish life
and are close to actions that are con-
demned.” Id. at 158, 127 S.Ct. 1610. Here,
the state has not even argued that compel-
ling the speech when it will physically or
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mentally harm the patient furthers any of its
interests. Finally, and perhaps most signifi-
cantly, the government in Gonzales had
medical support for its position that the stat-
ute did not create significant health risks and
that the barred procedure was never medi-
cally necessary. Id. at 161, 127 S.Ct. 1610.
In such a case, the Court concluded, Con-
gress could weigh in. Id. at 163–64, 127
S.Ct. 1610 (“Medical uncertainty does not
foreclose the exercise of legislative power in
the abortion context any more than it does in
other contexts.”). Here, on the other hand,
there is no uncertainty; the state has not pro-
vided any evidence to dispute Plaintiffs' evi-
dence that the compelled speech can be
medically harmful in a variety of situations.

FN38. Neither study cited by the expert as
some proof of absence of harm addressed
the potential benefits or risks when provid-
ers were forced to show and speak the in-
formation to their patients, much less to pa-
tients who were at high risk of psychological
harm; rather, both studies involved offering
women the choice of seeing the visual in-
formation at issue. (See Doc. 117–1 at p. 6 ¶
5, (citing Ellen R. Wiebe & Lisa C. Adams,
Women's Experience of Viewing the Prod-
ucts of Conception after an Abortion, 80
Contraception 575, 575–77 (2009);
Bamigboye, supra, at 430–32).) One of the-
se studies, which specifically examined the
effects of offering to show the ultrasound to
women seeking abortion, explicitly noted
that “[s]eeing the image of a fetus which is
subsequently aborted may have profound
emotional consequences for the woman.
Any recommendations regarding visualisa-
tion or non-visualisation of ultrasound im-
ages should be based on sound evidence.”
Bamigboye, supra, at 430.

FN39. Defendants do not contend that there
is any other medical or health-related reason
that a woman needs to see the real-time dis-
play or hear the description of the fetus's
physical characteristics. There is no evi-
dence that in the ordinary case the descrip-
tion serves any diagnostic purpose, affects
the kind of procedure undertaken, or has any
other medical purpose. Indeed, all the evi-
dence is to the contrary. (See Doc. 107 at ¶¶
21–22, 42; Doc. 109 at ¶¶ 12, 21; Doc. 110
at ¶¶ 8, 24; Doc. 111 at ¶ 24; Doc. 112 at ¶
17.)

FN40. The underinclusiveness of the Act al-
so raises suspicions about the primacy of the
state's interest in informed consent. See
Brown, –––U.S. at ––––, 131 S.Ct. at 2740.
The Act exempts an entirely different popu-
lation of pregnant women who are also
faced with choices that put their fetuses at
risk. (See, e.g., Doc. 108 at ¶¶ 28–29 (dis-
cussing increased risk of miscarriage caused
by chorionic villus sampling and amniocen-
tesis).)

FN41. There is no evidence that the risk of
emotional harm from learning after the fact
that the fetus might have had physical fea-
tures qualifies as one of the “usual and most
frequent risks and hazards inherent in the ...
procedure[ ]” so that disclosure would be
otherwise required by North Carolina law.
N.C. Gen.Stat. § 90–21.13(a)(2).

FN42. In fact, none of the purported lay
intervenors suggest that they were coerced
by a provider into choosing to have an abor-
tion. One suggests that she was sedated
against her will when she arrived at the
abortion clinic, (Doc. 45–6 at ¶¶ 6–7), but
this is a separate problem entirely and one
that the speech-and-display provision does
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not even come close to remedying.

FN43. As is clear from the Court's analysis
above, Casey obviously is relevant to the
First Amendment analysis in several ways,
even though it did not create a new First
Amendment exception or a new standard of
review for all abortion-related speech cases.
First, by its citation to Wooley, the Casey
court acknowledged that a physician cannot
be compelled to disseminate, in his or her
own voice, the state's ideological message.
505 U.S. at 884, 112 S.Ct. 2791. Second,
Casey explicitly links the state's ability to
require physicians to provide information to
the state's historical authority to regulate the
practice of medicine. Third, Casey provides
a basis for an enlightening comparison of
the terms of the Pennsylvania statute it up-
held and the Act at issue here. Finally, Ca-
sey's discussion of the state's interests in
regulating abortion in the Fourteenth
Amendment context readily transfers to a
First Amendment analysis, even if its appli-
cation of the undue burden test does not.

M.D.N.C.,2014.
Stuart v. Loomis
--- F.Supp.2d ----, 2014 WL 186310 (M.D.N.C.)

END OF DOCUMENT


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Only the Westlaw citation is currently available.

United States District Court,
D. Maryland.
Centro TEPEYAC
v.
MONTGOMERY COUNTY, et al.

Civil Action No. DKC 10–1259.
Filed March 7, 2014.
Opinion Denying Reconsideration March 26, 2014.

Background: Limited Service Pregnancy Resource
Center (LSPRC), which provided testing, referral
services, and confidential discussion of pregnancy
options, brought action against county council and
other county defendants, challenging validity of ordi-
nance obligating it to post disclaimer that it did not
have a licensed medical professional on staff, and to
inform visitors that county encouraged women who
could be pregnant to consult with a licensed health
care provider. Parties cross-moved for summary
judgment.

Holdings: The District Court, Deborah K. Chasanow,
J., held that:
(1) strict scrutiny applied to First Amendment chal-
lenge to ordinance;
(2) ordinance violated LSPRC's First Amendment
rights; and, on county's motion for reconsideration,
(3) District Court would not reconsider its prior rul-
ing on ground that it had erred by not applying sever-
ability doctrine.

Ordered accordingly.

West Headnotes

[1] Constitutional Law 92 1152

92 Constitutional Law
92X First Amendment in General
92X(A) In General
92k1152 k. Facial Challenges. Most Cited
Cases

Constitutional Law 92 1153

92 Constitutional Law
92X First Amendment in General
92X(A) In General
92k1153 k. As Applied Challenges. Most
Cited Cases

There are two types of challenges to the validity
of a statute on First Amendment grounds: facial and
as-applied. U.S.C.A. Const.Amend. 1.

[2] Constitutional Law 92 1152

92 Constitutional Law
92X First Amendment in General
92X(A) In General
92k1152 k. Facial Challenges. Most Cited
Cases

Constitutional Law 92 1153

92 Constitutional Law
92X First Amendment in General
92X(A) In General
92k1153 k. As Applied Challenges. Most
Cited Cases

The difference between a facial challenge and an
as-applied challenge to a statute on First Amendment
grounds lies in the scope of the constitutional inquiry.
U.S.C.A. Const.Amend. 1.

[3] Constitutional Law 92 1152
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92 Constitutional Law
92X First Amendment in General
92X(A) In General
92k1152 k. Facial Challenges. Most Cited
Cases

A plaintiff asserting a facial challenge to a stat-
ute on First Amendment grounds may demonstrate
that no set of circumstances exists under which the
law would be valid, or that the law lacks any plainly
legitimate sweep. U.S.C.A. Const.Amend. 1.

[4] Constitutional Law 92 1164

92 Constitutional Law
92X First Amendment in General
92X(A) In General
92k1162 Overbreadth in General
92k1164 k. Substantial Impact, Neces-
sity Of. Most Cited Cases

A plaintiff asserting a facial challenge to a stat-
ute on First Amendment grounds may prevail if he or
she shows that the law is overbroad because a sub-
stantial number of its applications are unconstitution-
al, judged in relation to the statute's plainly legitimate
sweep. U.S.C.A. Const.Amend. 1.

[5] Constitutional Law 92 1152

92 Constitutional Law
92X First Amendment in General
92X(A) In General
92k1152 k. Facial Challenges. Most Cited
Cases

A court considering a facial challenge to a statute
on First Amendment grounds is to assess the consti-
tutionality of the challenged law without regard to its
impact on the plaintiff asserting the facial challenge.
U.S.C.A. Const.Amend. 1.

[6] Constitutional Law 92 1153

92 Constitutional Law
92X First Amendment in General
92X(A) In General
92k1153 k. As Applied Challenges. Most
Cited Cases

An as-applied challenge to a statute on First
Amendment grounds is based on a developed factual
record and the application of a statute to a specific
person. U.S.C.A. Const.Amend. 1.

[7] Constitutional Law 92 1153

92 Constitutional Law
92X First Amendment in General
92X(A) In General
92k1153 k. As Applied Challenges. Most
Cited Cases

In an as-applied challenge to a statute on First
Amendment grounds, the state must justify the chal-
lenged regulation with regard to its impact on the
plaintiffs. U.S.C.A. Const.Amend. 1.

[8] Constitutional Law 92 1036

92 Constitutional Law
92VI Enforcement of Constitutional Provisions
92VI(C) Determination of Constitutional
Questions
92VI(C)4 Burden of Proof
92k1032 Particular Issues and Applica-
tions
92k1036 k. First Amendment in
General. Most Cited Cases

Constitutional Law 92 1152

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92 Constitutional Law
92X First Amendment in General
92X(A) In General
92k1152 k. Facial Challenges. Most Cited
Cases

Constitutional Law 92 1153

92 Constitutional Law
92X First Amendment in General
92X(A) In General
92k1153 k. As Applied Challenges. Most
Cited Cases

The type of challenge to a statute on First
Amendment grounds, facial or as-applied, dictates
what must be demonstrated and who carries the bur-
den of persuasion. U.S.C.A. Const.Amend. 1.

[9] Constitutional Law 92 1795

92 Constitutional Law
92XVIII Freedom of Speech, Expression, and
Press
92XVIII(G) Property and Events
92XVIII(G)7 Health Care Facilities
92k1795 k. In General. Most Cited
Cases

Strict scrutiny applied to a First Amendment
challenge to a county requirement that a provider of
pregnancy-related information post notice that it did
not have a licensed medical professional on staff, and
inform visitors that the county encouraged women
who could be pregnant to consult with a licensed
health care provider; resolution was a content-based
speech restriction and did not pertain to commercial,
professional, or any other form of speech calling for a
lower level of scrutiny. U.S.C.A. Const.Amend. 1.

[10] Constitutional Law 92 1490

92 Constitutional Law
92XVIII Freedom of Speech, Expression, and
Press
92XVIII(A) In General
92XVIII(A)1 In General
92k1490 k. In General. Most Cited
Cases

Constitutional Law 92 1503

92 Constitutional Law
92XVIII Freedom of Speech, Expression, and
Press
92XVIII(A) In General
92XVIII(A)1 In General
92k1503 k. Right to Refrain from
Speaking. Most Cited Cases

The First Amendment, as applied to the states by
the Fourteenth Amendment, protects not only the
right to speak freely, but also the right to refrain from
speaking at all. U.S.C.A. Const.Amends. 1, 14.

[11] Constitutional Law 92 1503

92 Constitutional Law
92XVIII Freedom of Speech, Expression, and
Press
92XVIII(A) In General
92XVIII(A)1 In General
92k1503 k. Right to Refrain from
Speaking. Most Cited Cases

Constitutional Law 92 1518

92 Constitutional Law
92XVIII Freedom of Speech, Expression, and
Press
92XVIII(A) In General
92XVIII(A)1 In General
92k1516 Content-Based Regulations or
Restrictions
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92k1518 k. Strict or Exacting Scruti-
ny; Compelling Interest Test. Most Cited Cases

Laws that compel speech are ordinarily consid-
ered content-based regulations of speech subject to
strict scrutiny because mandating speech that a
speaker would not otherwise make necessarily alters
the content of the speech. U.S.C.A. Const.Amend. 1.

[12] Constitutional Law 92 1795

92 Constitutional Law
92XVIII Freedom of Speech, Expression, and
Press
92XVIII(G) Property and Events
92XVIII(G)7 Health Care Facilities
92k1795 k. In General. Most Cited
Cases

Health 198H 256

198H Health
198HI Regulation in General
198HI(C) Institutions and Facilities
198Hk256 k. Regulation of Conduct in
General. Most Cited Cases

Resolution, obligating Limited Service Pregnan-
cy Resource Center (LSPRC), which provided test-
ing, referral services, and confidential discussion of
pregnancy options, to post disclaimer that it did not
have a licensed medical professional on staff, and to
inform visitors that county encouraged women who
could be pregnant to consult with a licensed health
care provider, violated LSPRC's First Amendment
rights; even if resolution was intended to promote a
real and compelling government interest in safe-
guarding the health of pregnant women, portion of
resolution encouraging women who could be preg-
nant to consult with a licensed health care provider
was not narrowly tailored to promote that interest.
U.S.C.A. Const.Amend. 1.

[13] Constitutional Law 92 1517

92 Constitutional Law
92XVIII Freedom of Speech, Expression, and
Press
92XVIII(A) In General
92XVIII(A)1 In General
92k1516 Content-Based Regulations or
Restrictions
92k1517 k. In General. Most Cited
Cases

It is rare that a regulation restricting speech be-
cause of its content will ever be permissible.
U.S.C.A. Const.Amend. 1.

[14] Federal Civil Procedure 170A 613.11

170A Federal Civil Procedure
170AVI Motions and Orders
170AVI(C) Reconsideration
170Ak613.6 Grounds and Factors
170Ak613.11 k. Further Evidence or
Argument. Most Cited Cases

A motion to reconsider may not be used to
relitigate old matters, or to raise arguments or present
evidence that could have been raised prior to the en-
try of judgment. Fed.Rules Civ.Proc.Rule 59(e), 28
U.S.C.A.

[15] Federal Civil Procedure 170A 2653

170A Federal Civil Procedure
170AXVII Judgment
170AXVII(G) Relief from Judgment
170Ak2651 Grounds and Factors
170Ak2653 k. Error by Court, Clerk, or
Jury. Most Cited Cases

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District Court would not reconsider its prior rul-
ing, entering summary judgment for Limited Service
Pregnancy Resource Center (LSPRC), in LSPRC's
First Amendment challenge to validity of county res-
olution obligating it to post disclaimer that it did not
have a licensed medical professional on staff, and to
inform visitors that county encouraged women who
could be pregnant to consult with a licensed health
care provider, on ground that Court erred by not ap-
plying severability doctrine and considering the two
statements separately once it determined that state-
ments considered together were unconstitutional as
applied to LSPRC, since Court's ruling, that county
failed to demonstrate that harms were real, and that
resolution would in fact alleviate the harms in a direct
and material way, meant that both statements failed
strict scrutiny, regardless of whether they were con-
sidered separately or together, such that Court's deci-
sion only to consider resolution as indivisible law
was immaterial to analysis and outcome of opinion.
U.S.C.A. Const.Amend. 1.

[16] Statutes 361 1533

361 Statutes
361VIII Validity
361k1532 Effect of Partial Invalidity; Severa-
bility
361k1533 k. In General. Most Cited Cases

Maryland law ordinarily presumes that if a por-
tion of enactment is found to be invalid, the intent of
the legislative body is that such portion be severed.

[17] Civil Rights 78 1461

78 Civil Rights
78III Federal Remedies in General
78k1458 Monetary Relief in General
78k1461 k. Nominal Damages. Most Cited
Cases

District Court would award nominal damages to
Limited Service Pregnancy Resource Center
(LSPRC), in LSPRC's First Amendment challenge
under § 1983 to validity of county resolution obligat-
ing it to post disclaimer that it did not have a licensed
medical professional on staff, and to inform visitors
that county encouraged women who could be preg-
nant to consult with a licensed health care provider,
where resolution had not been enforced against
LSPRC and it had not sought any actual damages.
U.S.C.A. Const.Amend. 1; 42 U.S.C.A. § 1983.

[18] Civil Rights 78 1461

78 Civil Rights
78III Federal Remedies in General
78k1458 Monetary Relief in General
78k1461 k. Nominal Damages. Most Cited
Cases

In a case in which a plaintiff's civil rights are
found to have been violated, it is appropriate to
award nominal damages, and a plaintiff's failure to
prove compensatory damages results in nominal
damages, typically one dollar.

John R. Garza, Garza Regan and Associates PC,
Robert R. Michael, Shadoan Michael and Wells LLP,
Rockville, MD, Mark Leonard Rienzi, Columbus
School of Law, Matthew Scott Bowman, Michael
Casey Mattox, Steven Henry Aden, Alliance Defense
Fund, Washington, DC, for Centro Tepeyac.

Clifford L. Royalty, Patricia P. Via, Rockville, MD,
for Montgomery County, et al.

MEMORANDUM OPINION
DEBORAH K. CHASANOW, District Judge.
*1 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”)
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(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 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 Ser-
vice 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 pro-
vide pregnancy-related services; (B) does not have a
licensed medical professional on staff; and (C) pro-
vides information about pregnancy-related services,
for a fee or as a free service.” (Id. at 2). The Resolu-
tion 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 Of-
ficer 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 Cen-
ter'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 cen-
ters [was] necessary to protect the health of County
residents.” (Id. at 1). In particular, the County ex-
pressed 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 con-
sulting a doctor) that would protect their health or
prevent adverse consequences, including disease,
to the client or the pregnancy.

*2 (Id.). A similar sentiment was expressed in a
January 29, 2010 memorandum to the County Coun-
cil from Amanda Mihill, a legislative analyst for the
County (“Mihill Memorandum”):
The Council is primarily concerned with ensuring
that a pregnant woman is not led to mistakenly be-
lieving that an LSPRC is staffed by professionals
licensed to give medical advice to patients. Women
who believe they are receiving advice from medi-
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cal professionals may not take important steps, in-
cluding consulting appropriate medical profession-
als, which would protect their health or prevent ad-
verse consequences during the pregnancy.

(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 Gov-
ernment 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 pro-
vided 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 in-
formation, including “false information about abor-
tion risks, misleading data on birth control, and emo-
tionally 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 is-
sue the proposed regulation is designed to address is
that some LSPRCs provide their clients with misin-
formation/incomplete information about their preg-
nancy options which can negatively affect a woman's
decision regarding her pregnancy and health.” (Id. at
3). The surveyed medical literature consistently rec-
ommended prenatal care as early as possible in a
woman's pregnancy because it is associated with pos-
itive 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 under-
standing the activities of LSPRCs,

it became clear to us that many services are provid-
ed that may be perceived as medically related ser-
vices including pregnancy tests, sometimes sono-
grams, 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.

*3 (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 ap-
proval 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 Coun-
ty non-profit corporation that provides pregnancy
services such as pregnancy testing, confidential dis-
cussion of pregnancy options, and support to families
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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 con-
sent of the woman. (ECF No. 49–4 ¶ 2). Ms. Mariana
Vera, Centro Tepeyac's Executive Director, repre-
sented in comments submitted to the County Council
that “[a]t least half” of the women who take a preg-
nancy test at Centro Tepeyac were referred by the
public clinics of Montgomery County. (ECF No. 48–
6, at 58). Those referrals continued even after pas-
sage of the Resolution. (ECF No. 48–4 ¶ 4, Declara-
tion of Mariana Vera). The County-run health centers
have compiled a list of private facilities where wom-
en 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 simi-
lar 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 cen-
ter 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).

*4 The County provided Dr. Ulder Tillman,
Health Officer for Montgomery County and Chief of
Public Health Services, as its Rule 30(b)(6) repre-
sentative. Dr. Tillman stated that she had never re-
ceived 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 con-
cern 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 re-
ceiving information from a licensed medical profes-
sional.” (Id. at 18, Trans. 18:9–14; see also id. at 23,
Trans. 23:11–15 (“In terms of speaking for the Coun-
ty, 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 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 at-
tempted to spread the Resolution's messages through
advertisements in newspapers, radio, television, Fa-
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cebook, or Twitter; on billboards; on signs in gov-
ernment buildings or pregnancy-related spaces such
as maternity stores. Such a strategy has not been em-
ployed due to resource constraints and the view—
generally shared in the public health community—
that targeted messages work better than broad dis-
seminations. (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 com-
plaint 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 perma-
nent injunctive relief. On June 3, 2010, the County
filed an “opposition to motion for preliminary injunc-
tion and motion to dismiss or, alternatively, for sum-
mary judgment.” (ECF No. 5). Centro Tepeyac there-
after filed a separate motion for preliminary injunc-
tion 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, 779 F.Supp.2d 456, the
court issued a memorandum opinion and order grant-
ing 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 (en-
couraging pregnant women to consult licensed health
care provider). The County then answered the com-
plaint, and the parties began discovery.
FN1
On No-
vember 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.

*5 Shortly before beginning discovery, the
County appealed the preliminary injunction prohibit-
ing 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.2012).
FN2
Specifically,
the panel concluded that preliminary injunctive relief
was warranted as to both statements in the Resolu-
tion.

The County requested rehearing en banc which
the Fourth Circuit granted on August 15, 2012, there-
by 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).
FN3
Since September 2012, the County has
stipulated that it will not enforce the Resolution
against Centro Tepeyac while this case remains pend-
ing. (ECF Nos. 61 and 65).

On August 16, 2013, Plaintiff renewed the mo-
tion for summary judgment. (ECF No. 68). Defend-
ants 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 No-
vember 15, 2013 (ECF No. 72).

II. Standard of Review
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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 show-
ing 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, 106 S.Ct. 2548. There-
fore, 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.” Lib-
erty Lobby, 477 U.S. at 249–50, 106 S.Ct. 2505. (ci-
tations omitted). At the same time, the court must
construe the facts that are presented in the light most
favorable to 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.

*6 “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 sum-
mary 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 appli-
cable to the Resolution and whether the Resolution
satisfies that level of scrutiny.

[1][2][3][4][5][6][7][8] 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 bur-
den. There are two types of challenges to the validity
of a statute on First Amendment grounds: facial and
as-applied.

The difference between a facial challenge and an
as-applied challenge lies in the scope of the consti-
tutional inquiry. Under a facial challenge, a plain-
tiff may sustain its burden in one of two ways.
First, a plaintiff asserting a facial challenge “may
demonstrate ‘that no set of circumstances exists
under which the law would be valid, or that the law
lacks any plainly legitimate sweep.’ ” Greater Balt.
Ctr., 721 F.3d at 282 (alterations omitted) (quoting
United States v. Stevens, 559 U.S. 460, 472, 130
S.Ct. 1577, 176 L.Ed.2d 435 (2010)). Second, a
plaintiff asserting a facial challenge may also pre-
vail if he or she “show[s] that the law is ‘overbroad
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because a substantial number of its applications are
unconstitutional, judged in relation to the statute's
plainly legitimate sweep.’ ” Id. (alterations omit-
ted) (quoting Stevens, 559 U.S. at 472, 130 S.Ct.
1577). Under either scenario, a court considering a
facial challenge is to assess the constitutionality of
the challenged law “without regard to its impact on
the plaintiff asserting the facial challenge.” Educ.
Media Co. at Virginia Tech, Inc. v. Swecker, 602
F.3d 583, 588 (4th Cir.2010). In contrast, an as-
applied challenge is “based on a developed factual
record and the application of a statute to a specific
person[.]” Richmond Med. Ctr. for Women v. Her-
ring, 570 F.3d 165, 172 (4th Cir.2009) (en banc).

Educ. Media Co. at Virginia Tech, Inc. v. Insley,
731 F.3d 291, 298 n. 5 (4th Cir.2013) (alterations in
original). “In an as-applied challenge, ... the state
must justify the challenged regulation with regard to
its impact on the plaintiffs.” Id. at 298. Thus, the type
of challenge dictates what must be demonstrated and
who carries the burden of persuasion.

*7 Plaintiff's amended complaint requests the
court to “[d]eclare the Resolution unconstitutional on
its face and/or as-applied to Plaintiff.” (ECF No. 41,
at 13). The motions are not precise as to the grounds
on which summary judgment is sought. Plaintiff re-
quests that the court “enter summary judgment in
Plaintiff's favor on all claims in the First Amended
Complaint.” (ECF No. 48–1, at 58). Defendants re-
quest that the court “[d]eny the Plaintiff all relief re-
quested” and “[e]nter a judgment in favor of the De-
fendants.” (ECF No. 49, at 38). Therefore, to prevail
on summary judgment, Defendants must demonstrate
that they are entitled to judgment that the Resolution
is constitutional on its face and as-applied to Plain-
tiff. In the as-applied challenge, the burden falls on
Defendants, while Plaintiff carries the burden to
demonstrate facial unconstitutionality.

For purposes of issuing the preliminary injunc-
tion, the court elected to consider the Resolution's
two statements separately. Centro Tepeyac v. Mont-
gomery Cnty., 779 F.Supp.2d 456, 470 (D.Md.2011).
That decision was affirmed by the Fourth Circuit, and
separating out contested compelled statements has
the support of at least one other court, Evergreen
Ass'n, Inc. v. City of N.Y., 740 F.3d 233 (2d
Cir.2014). Neither party addressed the issue of sever-
ability at the preliminary injunction stage and they
continue not to discuss it here. Rather, they challenge
or support the Resolution as an all or nothing propo-
sition. Given the County's silence, and upon further
consideration of the governmental interest articulat-
ed, the court will consider the Resolution's two
statements as a single entity, to rise or fall together.

A. Strict Scrutiny Applies
FN4

[9][10][11] As noted in the court's prior opinion,
the parties seem to agree that the Resolution requires
Centro Tepeyac to say something that it would not
otherwise say. The First Amendment, as applied to
the states by the Fourteenth Amendment, protects not
only “the right to speak freely,” but also “the right to
refrain from speaking at all.” Wooley v. Maynard,
430 U.S. 705, 714, 97 S.Ct. 1428, 51 L.Ed.2d 752
(1977). As a result, laws that compel speech are ordi-
narily considered “content-based regulation[s] of
speech” subject to strict scrutiny because
“[m]andating speech that a speaker would not other-
wise make necessarily alters the content of the
speech.” Riley v. Nat'l Fed'n of the Blind of N.C.,
Inc., 487 U.S. 781, 795, 108 S.Ct. 2667, 101 L.Ed.2d
669 (1988). This court has previously concluded that
strict scrutiny is appropriate in this case precisely
because the Resolution compels non-commercial
speech. Centro Tepeyac, 779 F.Supp.2d at 468.

The County requests that that analysis be revisit-
ed for three separate reasons: (1) compelled speech is
not always held to strict scrutiny when the regulation
is triggered by a characteristic of the speaker, as op-
posed to the content of his speech; (2) Centro
Tepeyac is engaged in commercial speech; and (3)
Centro Tepeyac is engaged in professional speech.
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According to Defendants, any of these reasons re-
quire the Resolution to be subject to intermediate
scrutiny, at most. (ECF No. 49, at 22).

*8 First, Defendants argue that the Resolution's
definition of an LSPRC is tied to their acts, not the
content of their speech. Application of the Resolution
is triggered by the fact that an LSPRC (1) has a pri-
mary purpose of providing pregnancy-related ser-
vices; (2) does not have a licensed medical profes-
sional on staff; and (3) provides information about
pregnancy-related services. All of these characteris-
tics are factual, divorced from the content of the
LSPRC's speech.

Defendants are only two-thirds correct at best.
The presence or absence of a licensed medical pro-
fessional is a fact divorced from the content of
LSPRC's speech. Although “pregnancy-related ser-
vices” may be conduct (e.g., administering pregnancy
tests, providing maternity clothes), they may also not
be (e.g., counseling a pregnant woman to favor adop-
tion over abortion). But providing information about
pregnancy-related services is a message which trig-
gers the Resolution's disclosure requirements, thereby
exacting a content-based penalty. See Riley, 487 U.S.
at 795, 108 S.Ct. 2667 (solicitation of funds triggers
requirement to express government-favored mes-
sage).

Defendants' authorities to the contrary are not
persuasive. Turner Broadcasting v. F.C.C., 512 U.S.
622, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994), upheld
a federal law requiring cable operators to carry
broadcast stations and rejected the cable operators'
argument that strict scrutiny was appropriate because
they were being compelled to transmit speech not of
their choosing. The Court distinguished cases like
Riley because all cable operators were burdened re-
gardless of the messages they conveyed. Id. at 655,
114 S.Ct. 2445. In this case, however, only those
entities that wish to speak about pregnancy-related
services are forced to make the County-mandated
disclosures, whereas entities that provide non-
professional information about other health topics are
not required to disclose. LSPRCs are targeted based
on the content of their message. Accordingly, Turner
is not controlling.

National Federation of the Blind v. F.T.C., 420
F.3d 331 (4th Cir.2005), another case Defendants
cite, was decided in the context of charitable solicita-
tions, an area of speech that occupies a middle
ground between commercial and non-commercial
speech, with correspondingly less protection than
pure non-commercial speech. Id. at 338. Further-
more, the Fourth Circuit distinguished Riley solely in
terms of the fact that the regulations at issue were
more narrowly tailored than those in Riley. Id. at
344–45. Defendants' reliance on Planned Parenthood
v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d
674 (1992), and its progeny Planned Parenthood v.
Rounds, 530 F.3d 724 (8th Cir.2008), and Summit
Medical Ctr. of Ala., Inc. v. Riley, 274 F.Supp.2d
1262 (M.D.Ala.2003), is similarly misplaced. The
Supreme Court of the United States in Casey upheld
the state's requirement that a physician provide speci-
fied information to a woman about the risks of abor-
tion. While acknowledging that the physician's First
Amendment rights not to speak are implicated, the
Court held that the requirements were part of the
practice of medicine, which is subject to the reasona-
ble licensing and regulation by the state. 505 U.S. at
884, 112 S.Ct. 2791. Here, by contrast, Plaintiffs are
not abortion providers, nor regulated as medical prac-
titioners. To the extent that Casey and its progeny
deal with professional speech, that doctrine's applica-
bility will be addressed below.

*9 This case is also not comparable to the situa-
tion in Rumsfeld v. Forum for Academic and Institu-
tional Rights, Inc., 547 U.S. 47, 126 S.Ct. 1297, 164
L.Ed.2d 156 (2006). There, the Supreme Court re-
jected the argument of a group of law schools that the
Solomon Amendment requiring them to provide re-
cruiting assistance to the military was a form of com-
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pelled speech, finding that the federal law was a
regulation of conduct (provide the same access to
military recruiters as to the non-military recruiter
receiving the most favorable access) to which any
compulsion of speech (e.g., sending out a military
recruitment email) was plainly incidental. The Court
wrote that “[a]s a general matter, the Solomon
Amendment regulates conduct, not speech. It affects
what law schools must do—afford equal access to
military recruiters—not what they may or may not
say.” Id. at 60, 126 S.Ct. 1297 (emphasis in original).
The Resolution, however, does the exact opposite. To
the extent it mandates conduct by forcing Centro
Tepeyac to erect a sign in its waiting room, that con-
duct is incidental to the regulation's speech com-
mand. Consequently, the Resolution is a regulation of
speech.

Finally, Defendants in their supplemental oppo-
sition brief cite to the recent Fourth Circuit case,
Maryland v. Universal Elections, Inc., 729 F.3d 370
(4th Cir.2013), which considered a challenge to the
Telephone Consumer Protection Act, a law that re-
quired all automated, prerecorded messages to identi-
fy the entity sponsoring the phone call and provide
that entity's telephone number, 47 U.S.C. § 227(d)(1),
(3)(A); 47 C.F.R. § 64.1200(b). The court considered
the identity disclosure requirement to be a content-
neutral regulation because it applies regardless of the
content of the message that is relayed to the recipient,
placing no greater restriction on a particular group of
people or form of speech, and not burdening appel-
lants more than any other person or group placing
robocalls. 729 F.3d at 376. The Resolution at issue
here, by contrast, applies precisely because the con-
tent of Plaintiff's message is pregnancy-related ser-
vices.

In sum, Defendants' arguments to the contrary
are unpersuasive and the Resolution is a content-
based speech restriction.

Content-based regulations are typically subject to
strict scrutiny, but can be subject to lesser scrutiny in
certain circumstances. Defendants contend that two
of those exceptions apply here: commercial speech
and professional speech.

The court previously considered the commercial
speech issue in the context of Plaintiff's motion for a
preliminary injunction, analyzing whether the speech
“propose[s] a commercial transaction,” Bd. of Tr. of
State Univ. of N.Y. v. Fox, 492 U.S. 469, 473, 109
S.Ct. 3028, 106 L.Ed.2d 388 (1989), or, alternatively,
whether it was “expression related solely to the eco-
nomic interests of the speaker and its audience,”
Cent. Hudson Gas & Elec. Corp. v. Pub. Serv.
Comm'n of N.Y., 447 U.S. 557, 561, 100 S.Ct. 2343,
65 L.Ed.2d 341 (1980). The court concluded that
Centro Tepeyac's speech was non-commercial as it
provides its services free of charge, which by defini-
tion could not be a commercial transaction. Addition-
ally, there was no indication that Centro Tepeyac was
acting out of economic interest, but rather was alleg-
edly motivated by social concerns. Centro Tepeyac,
779 F.Supp.2d at 463–64. The two other district
courts to consider the applicability of the commercial
speech doctrine to LSPRCs used the same “economic
interests” and “commercial transaction” definitions of
commercial speech, and found that the plaintiffs did
not engage in commercial speech because they pro-
vided their services free of charge not for economic
reasons, but in furtherance of their social views. See
Evergreen Assn'n, Inc. v. City of N.Y., 801 F.Supp.2d
197, 205 (S.D.N.Y.2011); O'Brien v. Mayor and City
Council of Balt., 768 F.Supp.2d 804, 813
(D.Md.2011).

*10 In considering Baltimore's LSPRC regula-
tions, the Fourth Circuit, sitting en banc, indicated
that this definition of commercial speech was too
restrictive and laid out the doctrine's parameters:

The analysis [of whether speech is commercial] is
fact-driven, due to the inherent “difficulty of draw-
ing bright lines that will clearly cabin commercial
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speech in a distinct category.” See City of Cincin-
nati v. Discovery Network, Inc., 507 U.S. 410, 419,
113 S.Ct. 1505, 123 L.Ed.2d 99 (1993). On one oc-
casion, in Central Hudson Gas & Electric v. Public
Service Commission of New York, the Supreme
Court defined commercial speech as “expression
related solely to the economic interests of the
speaker and its audience.” 447 U.S. 557, 561, 100
S.Ct. 2343, 65 L.Ed.2d 341 (1980). But the Court
has noted that commercial speech is “usually de-
fined as speech that does no more than propose a
commercial transaction.” United States v. United
Foods, Inc., 533 U.S. 405, 121 S.Ct. 2334, 150
L.Ed.2d 438 (2001); see also Bd. of Trs. of the
State Univ. of N.Y. v. Fox, 492 U.S. 469, 473–74,
109 S.Ct. 3028, 106 L.Ed.2d 388 (1989) (pro-
nouncing “propose a commercial transaction” to be
“the test for identifying commercial speech” (em-
phasis added)). The Court has also described the
proposal of a commercial transaction—e.g., “I will
sell you the X prescription drug at the Y price,” Va.
State Bd. of Pharmacy v. Va. Citizens Consumer
Council, 425 U.S. 748, 761, 96 S.Ct. 1817, 48
L.Ed.2d 346 (1976)—as “the core notion of com-
mercial speech.” Bolger v. Youngs Drug Prods.
Corp., 463 U.S. 60, 66, 103 S.Ct. 2875, 77 L.Ed.2d
469 (1983).

...

[E]ven where speech “cannot be characterized
merely as proposals to engage in commercial trans-
actions,” the speech may yet be deemed commer-
cial; in that event, “proper classification as com-
mercial or noncommercial speech ... presents a
closer question.” Bolger, 463 U.S. at 66, 103 S.Ct.
2875; see also Adventure Commc'ns, Inc. v. Ky.
Registry of Election Fin., 191 F.3d 429, 440 (4th
Cir.1999) (“In the abstract, the definition of com-
mercial speech appears to be fairly straightforward,
if somewhat circular: it is speech that proposes a
commercial transaction. In practice, however, ap-
plication of this definition is not always a simple
matter.” (citations and internal quotation marks
omitted)). From Bolger, courts of appeals have
gleaned “three factors to consider in deciding
whether speech is commercial: (1) is the speech an
advertisement; (2) does the speech refer to a specif-
ic product or service; and (3) does the speaker have
an economic motivation for the speech.” U.S.
Healthcare, Inc. v. Blue Cross of Greater Phila.,
898 F.2d 914, 933 (3d Cir.1990) (citing Bolger,
463 U.S. at 66–67, 103 S.Ct. 2875); accord, e.g.,
Spirit Airlines, Inc. v. U.S. Dep't of Transp., 687
F.3d 403, 412 (D.C.Cir.2012); United States v.
Benson, 561 F.3d 718, 725 (7th Cir.2009); Adven-
ture Commc'ns, 191 F.3d at 440–41. While “[t]he
combination of all of these characteristics ... pro-
vides strong support for the ... conclusion that
[speech is] properly characterized as commercial
speech,” Bolger, 463 U.S. at 67, 103 S.Ct. 2875, it
is not necessary that each of the characteristics “be
present in order for speech to be commercial,” id.
at 67 n. 14, 103 S.Ct. 2875.

*11 Greater Balt. Ctr., 721 F.3d at 284–85 (first
and second alterations added).

Defendants, in their supplemental opposition, ar-
gue that the commercial speech doctrine applies even
though Centro Tepeyac does not propose a commer-
cial transaction, citing to Greater Baltimore Center's
recognition of the three factors from Bolger: (1) is
the speech an advertisement; (2) does the speech re-
fer to a specific product or service; and (3) does the
speaker have an economic motivation for the speech.
721 F.3d at 285. Defendants insist that the record
developed since the court's prior opinion demon-
strates that Centro Tepeyac is acting out of an eco-
nomic interest because a few of the women to whom
it provides services have subsequently made dona-
tions to the organization (ECF No. 49, at 26; ECF
No. 72 at 2), and the organization's website “openly
solicits money from all of its customers on its web-
site, which contains convenient links to ‘Visa’ and
‘PayPal.’ ” (ECF No. 72, at 2).
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This argument strains the record and must be re-
jected. The record indisputably indicates that Centro
Tepeyac provides its services entirely free of charge
and that, in “rare” circumstances, some women have
later donated to its cause. (ECF No. 49–4, at 22–23,
43, Trans. 22:16–23:2, 43:14–24). The infrequent
receipt of unsolicited donations from women who
have previously visited Centro Tepeyac and the
placement of links on Centro Tepeyac's website to
donate does not, as the County contends, prove that
Centro Tepeyac offers pregnancy-related services in
furtherance of their economic interests. Cf. Evergreen
Assoc., Inc. v. City of N.Y., 801 F.Supp.2d 197, 206 n.
5 (S.D.N.Y.2011) (if the LSPRC were “referring
women to pro-life doctors in exchange for ‘charita-
ble’ contributions, the analysis could change.”).

But the absence of a speaker's economic motive
is not dispositive, as the Fourth Circuit in Greater
Baltimore Center went on to state that “even Bolger
does not preclude classification of speech as com-
mercial in the absence of the speaker's economic mo-
tivation. See 463 U.S. at 67 n. 14, 103 S.Ct. 2875.”
721 F.3d at 285–86. The district court was instructed
to go beyond evaluating the pregnancy center's
speech against the “core” definitions of commercial
speech (i.e., commercial transaction or economic
motive), and engage in a more contextual analysis,
considering both speaker and listener:

Because the Ordinance compels a disclaimer, the
“lodestars in deciding what level of scrutiny to ap-
ply ... must be the nature of the speech taken as a
whole and the effect of the compelled statement
thereon.” Riley, 487 U.S. at 796, 108 S.Ct. 2667. In
other words, context matters. From a First
Amendment free speech perspective, that context
includes the viewpoint of the listener, for
“[c]ommercial expression not only serves the eco-
nomic interest of the speaker, but also assists con-
sumers and furthers the societal interest in the full-
est possible dissemination of information.” See
Cent. Hudson, 447 U.S. at 561–62, 100 S.Ct. 2343;
see also Va. State Bd. of Pharmacy, 425 U.S. at
756, 96 S.Ct. 1817 (“Freedom of speech presup-
poses a willing speaker. But where a speaker exists
... the protection afforded is to the communication,
to its source and to its recipients both.” (footnote
omitted)).

*12 721 F.3d at 286 (alteration in original).

As an example of a case that employed the prop-
er analysis, the Fourth Circuit pointed to Fargo
Women's Health Org., Inc. v. Larson, 381 N.W.2d
176, a 1986 case from the Supreme Court of North
Dakota. In Larson, plaintiff was an abortion provider
that brought an action under the state's false advertis-
ing law against an anti-abortion clinic. The anti-
abortion clinic had taken a name very similar to the
abortion clinic's and put advertisements in newspa-
pers strongly suggesting that it performs abortions
and provides financial assistance for such services.
Plaintiff alleged that the anti-abortion clinic lured
pregnant women to the clinic unwittingly to receive
anti-abortion propaganda. The trial court entered a
preliminary injunction against the defendant who in
turn argued to the state Supreme Court that such an
injunction constituted an unconstitutional prior re-
straint.

The state Supreme Court rejected defendant's ar-
gument, finding that the advertisements were com-
mercial speech. Defendant argued that its communi-
cations were not commercial speech because no fi-
nancial charges are assessed against persons receiv-
ing services from the clinic. The state Supreme Court
was skeptical of this assertion because the advertise-
ments expressly stated that financial assistance was
available and that major credit cards are accepted.
The court found that contested issue irrelevant
though, as it held that the monies received by defend-
ant were not dispositive of the determination that the
communication involved is commercial speech.
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More importantly, [defendant's] advertisements are
placed in a commercial context and are directed at
the providing of services rather than toward an ex-
change of ideas. [Defendant's] advertisements offer
medical and advisory services in addition to finan-
cial assistance. In effect, [defendant's] advertise-
ments constitute promotional advertising of ser-
vices through which patronage of the clinic is so-
licited, and in that respect constitute classic exam-
ples of commercial speech.

381 N.W.2d at 181.

Defendants contend that the first and second of
the Bolger factors are present here, namely Plaintiff's
provision of products and services (e.g., pregnancy
testing, medical advice and diapers) and its place-
ment of advertisements that solicit customers. (ECF
No. 70, at 5). As evidence of Plaintiff's advertise-
ments, Defendants point to two screenshots of Centro
Tepeyac's website placed in the record. The first
states that Centro Tepeyac offers

• Facts on the risks and effects of abortion

• FREE Pregnancy Test

• Bilingual advice

• Ongoing support, during pregnancy, childbirth
and after birth; with parents, boyfriend or husband,
as needed

• Prenatal & Parenting Classes, support groups and
child-care programs

• Maternity and baby clothing, furniture and sup-
plies

• Post abortion counseling & peer support

• Instruction in natural family planning

*13 (ECF No. 49–7). The second screenshot is
from a page entitled “About Centro Tepeyac” and
states that it “provides pregnancy testing, referral
services, confidential counseling, sexual integrity
education, parenting information and post-abortion
guidance. All services are free and confidential and
available in Spanish and English.” (Id.). Both
webpages provide links to donate, but also state that
“All Services are provided FREE of charge.” (Id.).
From this, Defendants argue that Centro Tepeyac is
(1) advertising, (2) for specific products or services.
According to Defendants, the presence of two of the
three Bolger factors makes Plaintiff's speech com-
mercial for which intermediate scrutiny applies.

The evidence in the record does not support De-
fendants' arguments as to Plaintiff. Larson concerned
an anti-abortion clinic's advertisements for services.
The North Dakota Supreme Court held that the
clinic's advertisements were commercial speech—
even if it had no economic motivations—because it
was going into the marketplace, advertising valuable
services such as pregnancy tests as an attempt to get
pregnant women to patronize its clinic as opposed to
the other facilities in the area. For pregnant women—
the listeners of this speech—the pregnancy services
have value and the fact that the anti-abortion clinic
was offering them for free made it more attractive
than its competitors. The North Dakota Supreme
Court seemed to be motivated by the reality that the
anti-abortion clinic's advertisements were in all prac-
tical respects indistinguishable from those of the for-
profit clinics. Inasmuch as the for-profit clinic's ad-
vertisements were clearly commercial speech it was
proper to consider the anti-abortion clinic's speech
also commercial and evaluate any regulations against
its more permissive standard.

Here, unlike the advertisements in Larson, the
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speech being regulated takes place within an
LSPRC's waiting room, not amongst the general dis-
course between and among pregnancy-service pro-
viders and pregnant women, but within Centro
Tepeyac's four walls, much closer to their ideological
message. There is nothing in the record indicating
that Centro Tepeyac is advertising its provision of
services in its waiting room; the record includes only
screenshots from its website. Nor does the record
contain evidence that Centro Tepeyac's physical fa-
cility advertises its services to passers-by whereby a
pregnant woman would want to know the qualifica-
tions of those providing these services. Plaintiff ad-
vertises its services on its website, which could be
considered commercial speech. From that, Defend-
ants incorrectly attempt to extrapolate that it can reg-
ulate all of Plaintiff's speech as commercial speech,
including that within its waiting room. But as the
Fourth Circuit stated: “context matters.” Greater
Balt. Ctr., 721 F.3d at 286. Defendants' arguments
and the record do not demonstrate that a website ad-
vertising services out to the world is equivalent to a
center's waiting room where there is no indication
that advertisements take place and it is undisputed
that Centro Tepeyac does not charge for its ser-
vices.
FN5
Even under the broader, contextual analysis
of commercial speech, the evidence in the record
does not demonstrate that the Resolution regulates
Plaintiff's commercial speech.

*14 The County also attempts to show that the
Resolution is subject to a “lesser degree” of scrutiny
because it implicates the professional speech doc-
trine. (ECF No. 49, at 25–26). Citing Justice White's
concurrence in Lowe v. SEC, 472 U.S. 181, 105 S.Ct.
2557, 86 L.Ed.2d 130 (1985), this court has previous-
ly explained that “professional speech occurs when a
party offers individualized advice that engenders a
relationship of trust with a client.” (ECF No. 26, at
20).

One who takes the affairs of a client personally in
hand and purports to exercise judgment on behalf
of the client in light of the client's individual needs
and circumstances is properly viewed as engaging
in the practice of a profession.... Where the person-
al nexus between professional and client does not
exist, and a speaker does not purport to be exercis-
ing judgment on behalf of any particular individual
with whose circumstances he is directly acquaint-
ed, government regulation ceases to function as le-
gitimate regulation of professional practice with
only incidental impact on speech; it becomes regu-
lation of speaking or publishing as such.

Lowe, 472 U.S. at 232, 105 S.Ct. 2557 (White,
J., concurring).

Justice White's concurring opinion in Lowe built
upon the concurrence of Justice Jackson in Thomas v.
Collins, 323 U.S. 516, 544–45, 65 S.Ct. 315, 89
L.Ed. 430 (1945). In that concurrence, Justice Jack-
son recognized a difference between individualized,
professional speech and generalized speech related to
traditionally “professional” subject matter:

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

...

This wider range of power over pursuit of a calling
than over speech-making is due to the different ef-
fects which the two have on interests which the
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state is empowered to protect. The modern state
owes and attempts to perform a duty to protect the
public from those who seek for one purpose or an-
other to obtain its money. When one does so
through the practice of a calling, the state may have
an interest in shielding the public against the un-
trustworthy, the incompetent, or the irresponsible,
or against unauthorized representation of agency.

323 U.S. at 544–45, 65 S.Ct. 315.

Based on these “instructive” concurring opin-
ions, the court previously concluded as follows:

The complaint could be read to allege that [Centro
Tepeyac] merely provides information to women,
who are then left to decide on their own whether
and how to use [Centro Tepeyac]'s pregnancy-
related information. This mere provision of infor-
mation would not seem to be enough to create the
type of quasi-fiduciary relationship contemplated
by the [Court]. Not every offering of advice or in-
formation creates a relationship of trust. Otherwise,
the distinction illustrated in Lowe and Thomas be-
tween discussion of professional subject matter and
practice of a profession would be rendered mean-
ingless.

*15 779 F.Supp.2d at 467.

The County contends that the record now “de-
bunks the notion that [Centro Tepeyac]'s counseling
sessions just involve a couple of folks discussing
pregnancy in a casual setting.” (ECF No. 49, at 25).
Specifically, it emphasizes that Centro Tepeyac has
admitted promising confidentiality to the women it
counsels and taking steps to ensure that such confi-
dentiality is maintained, and it asserts that these facts
render Centro Tepeyac's speech professional in na-
ture.

Once again, the County reaches too far. The
mere fact that Centro Tepeyac provides its program
participants with the promise of confidentiality does
not transform its message into professional speech.
The County has offered no evidence that Centro
Tepeyac does anything other than provide pregnancy-
related information to these women. Indeed, the rec-
ord is devoid of any indication that Centro Tepeyac
“purports to exercise judgment on behalf of” its pro-
gram participants, a critical component of profession-
al speech. Lowe, 472 U.S. at 232, 105 S.Ct. 2557
(White, J., concurring); Evergreen Ass'n, 801
F.Supp.2d at 207 (“While 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 circum-
stances.”).
FN6
At bottom, the County seeks to blur—
and perhaps eliminate—the distinction between dis-
cussion of professional subject matter and the prac-
tice of a profession. Such an outcome would repre-
sent a breathtaking expansion of the narrow profes-
sional speech doctrine and would ensnare countless
charitable organizations based solely on their provi-
sion of information to program participants in a pri-
vate setting. Accordingly, in evaluating whether the
Resolution violates Centro Tepeyac's First Amend-
ment rights, strict scrutiny will be applied.
FN7


B. Plaintiff Has Not Made a Sufficient Demonstra-
tion that Lesser Scrutiny Does Not Apply to other
LSPRCs
As discussed above, in a First Amendment chal-
lenge, which party carries the burden turns on wheth-
er the challenge is facial or as-applied. Plaintiff re-
quests a declaratory judgment that the Resolution is
unconstitutional either on its face or as-applied to
Plaintiff. In a facial challenge, Plaintiff bears the bur-
den of demonstrating “that no set of circumstances
exists under which the law would be valid, or that the
law lacks any plainly legitimate sweep,” or “that the
law is overbroad because a substantial number of its
applications are unconstitutional, judged in relation to
the statute's plainly legitimate sweep.” Greater Balt.
Ctr., 721 F.3d at 282 (alterations and quotation marks
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omitted).

Dr. Tillman stated that there are presently two
LSPRCs in Montgomery County: Birthright and Cen-
tro Tepeyac. Little has been submitted about Birth-
right. Ms. Carole Buchanan, Birthright's Executive
Director, told the County Council that it is an incor-
porated 501(c)(3) charity that does not charge for its
services, much like Centro Tepeyac. (ECF No. 48–6,
at 60). There is no evidence in the record, however,
as to the nature of the counseling or how it solicits
services. As illustrated in the preceding sections, such
information is critical in assessing whether the com-
mercial or professional speech doctrines apply to a
speaker. Depending on the nature of Birthright's ac-
tivities, a lesser standard of review—either rational
basis or intermediate scrutiny—would apply to the
Resolution. See Casey, 505 U.S. at 884, 112 S.Ct.
2791 (upholding a requirement that doctors disclose
truthful, nonmisleading information to patients about
certain risks of abortion); Zauderer v. Office of Dis-
ciplinary Counsel of Supreme Court of Ohio, 471
U.S. 626, 651, 105 S.Ct. 2265, 85 L.Ed.2d 652
(1985) (applying rational basis standard to laws re-
quiring individuals to disclose “purely factual and
uncontroversial information about the terms under
which [their] services will be available”); Central
Hudson, 447 U.S. at 566, 100 S.Ct. 2343 (regulations
on nonmisleading commercial speech regarding law-
ful activity must withstand intermediate scrutiny).
The Fourth Circuit has instructed district courts that it
is improper on a facial challenge to assume that the
characteristics of one LSPRC for which there is evi-
dence in the record reflects the characteristics of all
LSPRCs within the regulation's sweep because it is
not possible to “properly evaluate the [Resolution's]
validity in all or most of its applications without evi-
dence concerning the distinctive characteristics” of
the various LSPRCs in Montgomery County. Greater
Balt. Ctr., 721 F.3d at 282. A regulation subject to
rational or intermediate review may still fail, but
Plaintiff has not made that argument. Accordingly, it
has failed to carry its burden of demonstrating the
Resolution is unconstitutional on its face.

C. Defendants Have Failed to Demonstrate that
the Resolution Passes the Strict Scrutiny Test
*16 [12] The analysis now turns to whether the
County has met its burden of demonstrating that the
Resolution survives strict scrutiny as applied to Plain-
tiff. To do so, it must demonstrate that the Resolution
is narrowly tailored to promote a compelling gov-
ernment interest. PSINet, Inc. v. Chapman, 362 F.3d
227, 233 (4th Cir.2004).

The Resolution itself states the government's in-
terest that spurred its passage: the Board's concern
“that clients may be misled into believing that a Cen-
ter 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.” (ECF No. 48–5, at 1). In
this litigation, Defendants have characterized the in-
terest as “protecting the health of pregnant women,”
(ECF No. 49, at 28), and “protecting the health of
women and in ensuring that women are not duped
into believing that they are receiving medical advice
from a licensed medical provider.” (ECF No. 70, at
6).

Courts have occasionally assumed, sometimes
without deciding, that protecting the health of its citi-
zens is, at least in some instances, a compelling inter-
est. See Regents of Univ. of Cal. v. Bakke, 438 U.S.
265, 310, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (“It
may be assumed that in some situations a State's in-
terest in facilitating the health care of its citizens is
sufficiently compelling to support the use of a sus-
pect classification.”); Loxley v. Chesapeake Hosp.
Auth., 166 F.3d 333, 1998 WL 827285, at *4 (4th
Cir.1998) (table decision) (evaluating the competence
of medical personnel involves the “overriding and
compelling state interest in safeguarding and protect-
ing [ ] health, safety, and lives” (internal quotation
omitted, alteration in original)); Buchwald v. Univ. of
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N.M. Sch. of Med., 159 F.3d 487, 498 (10th Cir.1998)
(citing Bakke to conclude that “public health is a
compelling interest”); Varandani v. Bowen, 824 F.2d
307, 311 (4th Cir.1987) (observing, in Due Process
context, that government has “compelling interest in
assuring safe health care for the public”); Mead v.
Holder, 766 F.Supp.2d 16, 43 (D.D.C.2011) (“[T]he
Government clearly has a compelling interest in safe-
guarding the public health by regulating the health
care and insurance markets.”); Dickerson v. Stuart,
877 F.Supp. 1556, 1559 (M.D.Fla.1995) (“The State
of Florida has a compelling interest in the health of
expectant mothers and the safe delivery of newborn
babies.”).

For the purposes of this opinion, it will be as-
sumed that Defendants have identified a compelling
interest in safeguarding the health of pregnant wom-
en.

[13] The mere identification of a valid compel-
ling interest is not sufficient, however: the restriction
on speech must also actually further that interest. As
the Supreme Court recently stated, “[t]he State must
specifically identify an ‘actual problem’ in need of
solving and the curtailment of free speech must be
actually necessary to the solution.” Brown v. Entm't
Merchants Ass'n, ––– U.S. ––––, 131 S.Ct. 2729,
2738, 180 L.Ed.2d 708 (2011) (citing United States v.
Playboy Entm't Grp., Inc., 529 U.S. 803, 822–23, 120
S.Ct. 1878, 146 L.Ed.2d 865 (2000); R.A.V. v. City of
St. Paul, Minn., 505 U.S. 377, 395, 112 S.Ct. 2538,
120 L.Ed.2d 305 (1992)). Defendants “must do more
than simply posit the existence of the disease sought
to be cured. It must demonstrate that the recited
harms are real, not merely conjectural, and that the
[Resolution] will in fact alleviate these harms in a
direct and material way.” Turner, 512 U.S. at 664,
114 S.Ct. 2445 (quotation marks and citation omit-
ted); see also Watchtower Bible, Tract Soc'y of N.Y.,
Inc. v. Village of Stratton, 536 U.S. 150, 169, 122
S.Ct. 2080, 153 L.Ed.2d 205 (2002) (rejecting gov-
ernment's asserted general interest of crime preven-
tion in part because “there is an absence of any evi-
dence of a special crime problem related to [the chal-
lenged discriminatory law] in the record before us.”);
Consol. Edison Co. of N.Y. v. Pub. Serv. Comm'n of
N.Y., 447 U.S. 530, 543, 100 S.Ct. 2326, 65 L.Ed.2d
319 (1980) (“Mere speculation of harm does not con-
stitute a compelling state interest.”); Gilardi v. U.S.
Dep't of Health and Human Servs., 733 F.3d 1208,
1220 (D.C.Cir.2013) (“ ‘safeguarding the public
health’ is such a capacious formula that it requires
close scrutiny of the asserted harm.”); Greater Balt.
Ctr., 721 F.3d at 288 (reversing the district court
grant of summary judgment because defendant “must
be accorded the opportunity to develop evidence rel-
evant to the compelling governmental interest ... in-
cluding, inter alia, evidence substantiating the effica-
cy of the Ordinance in promoting public health.”);
Awad v. Ziriax, 670 F.3d 1111, 1130 (10th Cir.2012)
(rejecting Oklahoma constitutional amendment that
forbid courts from considering or using international
law or Sharia law because the state failed to identify
any “actual problem the challenged amendment seeks
to solve” as the state “did not know of even a single
instance where an Oklahoma court had applied Sharia
law or used the legal precepts of other nations or cul-
ture, let alone that such applications or uses had re-
sulted in concrete problems in Oklahoma.”). It is a
demanding standard. “It is rare that a regulation re-
stricting speech because of its content will ever be
permissible.” Playboy, 529 U.S. at 818, 120 S.Ct.
1878.

*17 The County Council phrased the public
health concerns in terms of possibilities: pregnant
women may mistake an LSPRC for a medical clinic
or its staff members as licensed medical professionals
and, because of that erroneous belief, could fail to
consult an actual medical professional, leading to
negative health outcomes. (ECF No. 49, at 18). The
parties dispute at which stage of the logic chain De-
fendants need to show that the harm is real and that
the Resolution will actually alleviate these harms. See
Turner, 512 U.S. at 664, 114 S.Ct. 2445. Defendants
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appear to argue that it is sufficient to have evidence
before the Council demonstrating that LSPRCs give
out medical advice (as a medical clinic would) and
appear to an uninformed observer to be a medical
clinic. Defendants then argue that the existence of
those findings in the legislative record permit the
conclusion that harm would result, namely pregnant
women foregoing medical care. Plaintiff, however,
insists that Defendants must go further: it is not
enough to posit that LSPRCs appear to be medical
clinics and are giving out incorrect medical advice;
Defendants must show that LSPRCs are actually pre-
senting themselves as medical clinics, that women
are actually confused as to status of an LSPRC or the
credentials of its staff, or have actually failed to ob-
tain medical advice because of that erroneous belief.
Plaintiff contends that the legislative record and Dr.
Ullman's testimony demonstrate no such problem.
Essentially, Plaintiff argues that the Resolution is a
solution in search of a problem, a condition that does
not justify compelled speech.

The record before the County Council has sever-
al documents relevant to this issue. First, the Wax-
man Report states as its aim to “examine[ ] the scien-
tific accuracy of the information provided by ... fed-
erally funded ‘pregnancy resource centers.’ ” (ECF
No. 48–6, at 15). The report wrote that LSPRCs “are
virtually always pro-life organizations” who “often
mask their pro-life mission in order to attract ‘abor-
tion vulnerable clients' ” by advertising that it “will
provide pregnant teenagers and women with an un-
derstanding of all of their options.” (Id. at 17–18).
The investigators, posing as seventeen-year old preg-
nant girls seeking an abortion, found that they often
received false or misleading information concerning
the purported relationship between abortion and (1)
breast cancer, (2) infertility, and (3) mental illness. In
its conclusion, the report stated that this misinfor-
mation “may be effective in frightening pregnant
teenagers and women and discouraging abortion. But
it denies the teenagers and women vital health infor-
mation, prevents them from making an informed de-
cision, and is not an accepted public health practice.”
(Id. at 30). The second document that was part of the
legislative record was the NARAL Report. First fo-
cusing on LSPRC practices generally, the report
wrote that LSPRCs provide false and misleading in-
formation about abortion, “rarely supply information
on contraception, and will not give referrals to clinics
or physicians that offer comprehensive reproductive
health care.” (Id. at 33). LSPRCs target young, poor,
and minority women by advertising in college news-
papers and offering free services, some of which can
be costly in the private sector. Turning next to an
investigation of LSPRCs in Maryland, the report
found that every center visited provided misleading
or completely false information, “a systematic pattern
of deception intended to prevent women from making
informed decisions about their reproductive health.”
(Id. at 34). According to the report, LSPRCs used the
provision of medical services such as pregnancy tests
and sonograms as “delay tactics to deter and prevent
women from exercising their right to choose,” while
also “gaining a sense of authority and credibility in
their client's eyes as a medical service provider.” (Id.
at 38).

*18 The County Council also had before it nu-
merous comments in favor of and against the Resolu-
tion. Ms. Nellie Beckett, a then-senior at Montgom-
ery Blair High School visited two LSPRCs in Mont-
gomery County—including Centro Tepeyac—as part
of her work volunteering for NARAL. She called
Centro Tepeyac and was told that they provide free
sonograms, pregnancy tests, and counseling on the
consequences of abortion. She reported that some of
the information she was told seemed medical, such as
abortion can affect future fertility. Only when she
specifically asked for a referral did the Centro
Tepeyac volunteer inform her that the center did not
refer for abortions. Additionally, the Centro Tepeyac
volunteer only acknowledged that its staff were not
doctors after several direct questions. (ECF No. 48–6,
at 47).

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Ms. Amy Peyrot was also a volunteer at
NARAL. She reported visiting two LSPRCs in
Montgomery County, where she was told incorrect
information about the health effects of abortion. The
counselors at Birthright stated that they were not a
medical facility, but only after she inquired about
contraceptives and whether she would meet with a
doctor or a nurse. She reported that the second
LSPRC (Shady Grove Pregnancy Center) “had a re-
ception window, waiting room, and hallways that
looked very similar to a doctor's office.” (Id. at 48).
Ms. Peyrot was only told that the LSPRC was not a
medical facility when she asked directly who she
would meet with and when she inquired about birth
control.

Ms. Eleanor Dayhoff–Brannigan was a law stu-
dent who wrote about her experience at Centro
Tepeyac as a volunteer investigator for NARAL. She
reported that the Centro Tepeyac volunteer asked her
a series of medical questions, “including whether I
was experiencing any pregnancy symptoms, the date
of my last menstrual cycle, and whether I was using
any form of birth control.” (Id. at 50). She reported
being told incorrect information about the health ef-
fects of birth control, the efficacy of condoms, and
was encouraged to engage in natural family planning
instead. She stated that these pregnancy centers were
deliberately appearing like medical facilities but did
not elaborate as to what she was basing this view
upon.

Finally, Ms. Laura Berger submitted comments
concerning her experience at Birthright as a volunteer
investigator for NARAL. She was told inaccurate
information about abortions and birth control and was
never informed that the center was not a medical fa-
cility. She went on to state that “[b]ased on the medi-
cal information and services being provided, I think it
is easy for a woman or teen to misinterpret this center
as a medical facility.” (Id. at 52).

Comments were also submitted in opposition.
Ms. Jacqueline Stippich, Executive Director of Shady
Grove Pregnancy Center, stated that they receive
forty-three percent (43%) of their clients from their
advertisements, where they are listed under “Abor-
tion Alternatives” in the telephone book. They
opened in 1983 and have served over 30,000 women
“without ever receiving a formal complaint for giving
inaccurate information or misrepresenting our ser-
vices.” (Id. at 55). She stated that their website has
four disclaimers, including one that states “we are not
an abortion provider.” Notably, their client intake
sheet states that the center is “not a medical facility ...
and a positive test result should be verified by a phy-
sician's examination.” When queried over the tele-
phone about abortion, they state that they “are not an
abortion provider, we are a pregnancy center.” (Id. at
56).

*19 Ms. Vera of Centro Tepeyac submitted
comments and stated that at least half of the women
who come in for a pregnancy test are referred to them
by the public clinics in Montgomery County. She
attached their pregnancy test form which states—in
English and Spanish—that the test result is “not a
diagnosis. The person to make a diagnosis is your
physician. We recommend you contact your doctor as
soon as possible.” (Id. at 59).

Finally, Ms. Carole Buchanan, the Executive Di-
rector of Birthright, told the County Council that the
center was established in 1970 and in the last ten
years helped over 37,000 women. In their thirty-nine
years of existence they have not received a single
client complaint. They advertise in the telephone
book under “Abortion Alternatives.” A woman call-
ing about an abortion is immediately told “we are not
a medical facility nor do we refer for abortions.”
They help women “by listening to [their] fears and
concerns and we tell [them] what we can offer
[them]. We never give medical advice.” (Id. at 60).

During discovery, Dr. Ulder Tillman was de-
posed as the County's Rule 30(b)(6) representative.
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She testified that there are two LSPRCs in Montgom-
ery County: Centro Tepeyac and Birthright. She has
been the County's Chief of Public Health since 2003
and in that time she has not received one complaint
from someone who sought service at either Centro
Tepeyac or Birthright. (ECF No. 48–10, at 14, Trans.
14:10–14). She had not received any evidence that
any actual pregnant women who went to an LSPRC
delayed seeking medical care. (Id. at 25–26, Trans.
24:24–25:6). Dr. Tillman had no idea whether wom-
en who go to an LSPRC do not also end up going to a
medical provider. (Id. at 62, Trans. 62:7–10).

Ms. Vera testified that confusion about the status
of Centro Tepeyac is rare and mostly from those that
call the center. She said that once they detect any
confusion they make it clear that they are not a medi-
cal facility and if the woman has medical issues she
needs to see a doctor. Once at the center, there is
nothing to suggest it is a medical facility as the walls
are bright colors and are not populated by things seen
in a medical facility. They attempt to foster a
“homey” feeling. If asked, they would state it is not a
licensed medical facility, but they do not immediately
volunteer it because they want to focus on their posi-
tive aspects. (ECF No. 49–5, at 26–29, Trans. 26:8–
29:7).

Defendants also draw attention to two pieces of
evidence in the legislative record compiled by Balti-
more City as recounted in Greater Baltimore Center.
First, Ms. Tori McReynolds submitted written testi-
mony that sixteen years ago, when she was sixteen
years old, she went to get a pregnancy test at an
LSPRC listed in the phone book under “Abortion
Counseling.” While waiting for the results of her
pregnancy test, a woman at the LSPRC subjected
McReynolds to anti-abortion propaganda. She stated
that she “felt tricked.... Had my mother and I seen a
sign at that reception desk informing us that we could
not get referrals for abortion or birth control, we
would have simply moved on.” 721 F.3d at 275. Se-
cond, Dr. Jodi Kelber–Kaye of the University of
Maryland, Baltimore County submitted written testi-
mony to the City Council stated that she has heard
“countless stories” from her students “who go to
[LSPRCs], assuming they will get a full range of ser-
vices and counseling and wind up feeling harassed,
coerced, and misinformed.” Id. Dr. Kelber–Kaye was
“distressed by the existence of centers that, on pur-
pose, appear to be medical facilities and are not
staffed by licensed medical personnel, nor even li-
censed counselors.” Id. Defendants point to this evi-
dence as “still more facts proving that the County's
concerns are real.” (ECF No. 70, at 6).
FN8


*20 Both parties have brought motions for sum-
mary judgment. Consequently, the evidence must be
viewed in the light most favorable to each party when
considering its opponent's motion. Given that the
burden under strict scrutiny rests with Defendants, it
is sensible to examine Plaintiff's motion first, when
all evidence will be viewed in the light most favora-
ble to the County and it is its responsibility to con-
front the motion with evidence showing that there is a
genuine dispute for trial. Celotex, 477 U.S. at 322–
23, 106 S.Ct. 2548.

Defendants—in resisting Plaintiff's motion—
have pointed to the Waxman and NARAL reports
and the various statements submitted to the County
Council and the Baltimore City Council as evidence
that there is an actual problem of LSPRCs presenting
themselves as medical clinics such that a woman ig-
norant of their true status would think the advice she
had received was medical advice. Consequently, she
would forego actual medical advice to the detriment
of her health.

The record produced by Defendants is simply in-
sufficient to sustain this regulation of Plaintiff's First
Amendment rights. Assuming arguendo that the
County has a compelling interest in positive health
outcomes for pregnant women, the critical flaw for
the County is the lack of any evidence that the prac-
tices of LSPRCs are causing pregnant women to be
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misinformed which is negatively affecting their
health. It does not necessarily follow that misinfor-
mation will lead to negative health outcomes. 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 mis-
information problem. So too do all of the comments
made to the County Council in support of the Resolu-
tion. These commenters—who were universally vol-
unteers from a pro-choice organization sent to inves-
tigate LSPRCs' practices—discussed the alleged mis-
information 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 med-
ical 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. The NARAL volunteers
did not forego medical care because of the LSPRCs;
they were merely testing the system as part of an in-
vestigation. Dr. Tillman, the County's Health Officer
and Rule 30(b)(6) expert, testified that she never re-
ceived one complaint about LSPRCs in the eight
years she had been the County's Chief of Public
Health nor had any evidence that an actual pregnant
women—as opposed to a NARAL volunteer—
delayed seeking medical care after patronizing an
LSPRC. Similarly, the two pieces of evidence from
the Baltimore case are unavailing. Ms. McReynolds
expressed frustration at being tricked as to the cre-
dentials of the LSPRC she visited, but does not indi-
cate that the time she wasted there led to any negative
health outcomes. Dr. Kelber–Kaye's testimony re-
counted her many students who went to an LSPRC
thinking they were going to receive the full panoply
of services and counseling and instead wound up
“feeling harassed, coerced, and misinformed.” But
even then, there is no evidence that those women
failed to get the medical services and counseling they
desired or that the time spent at the LSPRC was to
the detriment of their health. Quite simply, the Coun-
ty has put no evidence into the record to demonstrate
that LSPRCs' failure clearly to state that no doctors
are on premises has led to any negative health out-
comes.
FN9


The parallels between this case and the Supreme
Court's violent video game case— Entertainment
Merchants Association—are striking. That case in-
volved a California law that restricted the sale or
rental of violent video games to minors. The Court,
reviewing the law under strict scrutiny, struck down
the law because California's evidence—a psychologi-
cal study—did not “prove that violent video games
cause minors to act aggressively,” instead showing
only a slight correlation. 131 S.Ct. at 2739 (emphasis
in original). The Court acknowledged that the law's
ends—reducing harm to minors—is legitimate, but
held that that alone is not sufficient; the state must
come forth with compelling evidence that the alleged
evil is causing the alleged harm. The state “bears the
risk of uncertainty, ambiguous proof will not suf-
fice.” Id. (citation omitted).

*21 In this case, protecting the health of pregnant
women is a legitimate goal for the County, just as
protecting minors from engaging in violence is a
worthy goal. Intuitively, perhaps, an LSPRC that
does not tell a patron that staff members are not doc-
tors and that the patron should seek a doctor might
result in a delay in seeking medical treatment, just as
the availability of violent video games to minors
might lead to violence by minors. But as with Cali-
fornia's violent video game law, when core First
Amendment interests are implicated, mere intuition is
not sufficient. Yet that is all the County has brought
forth: intuition and suppositions. “This is not to sug-
gest that a 10,000–page record must be compiled in
every case or that the [g]overnment must delay in
acting to address a real problem; but the
[g]overnment must present more than anecdote and
supposition.” Playboy, 529 U.S. at 822, 120 S.Ct.
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1878 (emphasis added); see also Turner, 512 U.S. at
664, 114 S.Ct. 2445 (the government “must demon-
strate that the recited harms are real, not merely con-
jectural.”). The County has not demonstrated how the
practices of LSPRCs are causing the harm it has a
compelling interest in addressing. The Fourth Circuit
in Greater Baltimore Center demanded that the dis-
trict court accord the government “the opportunity to
develop evidence relevant to the compelling govern-
ment interest ... including, inter alia, evidence sub-
stantiating the efficacy of the Ordinance in promoting
public health.” 721 F.3d at 288. The County has been
given that opportunity. On the record before the
court, the alleged harm caused by LSPRCs is based
on the County's conjecture. Thus, the County has
failed to satisfy strict scrutiny under the First
Amendment and, by extension, Article 40 of the
Maryland Declaration of Rights. Plaintiff's motion for
summary judgment will be granted as to Counts I and
III and the County will be permanently enjoined from
enforcing the Resolution against Plaintiff.
FN10


IV. Conclusion
For the foregoing reasons, Defendants' motion
for summary judgment will be denied. Plaintiff's mo-
tion for summary judgment will be granted in part. A
separate order will follow.

MEMORANDUM OPINION
Presently pending and ready for resolution is a
motion for reconsideration or to alter or amend this
court's March 7, 2014 memorandum opinion filed by
Defendants (ECF No. 75), and a joint motion to set
deadlines for fee petitions (ECF No. 76). In addition,
Plaintiff has informally sought an award of $1.00 in
nominal damages. Defendants' motion to reconsider
will be denied, Plaintiff will be awarded nominal
damages, and the joint motion will be granted.

This case is a challenge to Montgomery County
Resolution 16–1252 (“the Resolution”), which re-
quires a Limited Service Pregnancy Resource Center
(“LSPRC”) to post a sign on its premises stating that:
(1) the Center does not have a licensed medical pro-
fessional on staff; and (2) the Montgomery County
Health Officer encourages women who are or may be
pregnant to consult with a licensed health care pro-
vider. Plaintiff, an LSPRC, challenged this law as
violative of its First Amendment rights. On March 7,
2014, by memorandum opinion and order, the court
granted summary judgment to Plaintiff, finding that
the Resolution violated the First Amendment as ap-
plied to Plaintiff, and permanently enjoined Defend-
ants from enforcing the law against Plaintiff. (ECF
Nos. 73 and 74). On March 19, 2014, Defendants
filed the pending motion for reconsideration.

[14] A motion for reconsideration filed within
twenty-eight days of the underlying order is governed
by Federal Rule of Civil Procedure 59(e). Courts
have recognized three limited grounds for granting
such a motion: (1) to accommodate an intervening
change in controlling law; (2) to account for new
evidence not previously available; or (3) to correct
clear error of law or prevent manifest injustice. See
United States ex rel. Becker v. Westinghouse Savan-
nah River Co., 305 F.3d 284, 290 (4th Cir.2002) (cit-
ing Pacific Ins. Co. v. Am. Nat'l Fire Ins. Co., 148
F.3d 396, 403 (4th Cir.1998)). A Rule 59(e) motion
“may not be used to relitigate old matters, or to raise
arguments or present evidence that could have been
raised prior to the entry of judgment.” Pacific Ins.
Co., 148 F.3d at 403 (quoting 11 Wright, et al., Fed-
eral Practice and Procedure § 2810.1, at 127–28 (2d
ed.1995)).

*22 [15][16] Defendants contend that the court
erred by not applying the severability doctrine to the
Resolution and considering the two statements sepa-
rately once it determined that the statements consid-
ered together were unconstitutional as applied to
Plaintiff. Defendants are correct that Maryland law—
which governs questions of severability—ordinarily
presumes that if a portion of enactment is found to be
invalid, the intent of the legislative body is that such
portion be severed. In the court's earlier opinion con-
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cerning Plaintiff's motion for a preliminary injunc-
tion, the two statements were considered separately
to determine whether the narrow tailoring component
of the strict scrutiny analysis had been met. At that
juncture, however, it was sufficient to point to the
County's stated interest—protecting pregnant wom-
en's health—as a compelling interest which the Coun-
ty could invoke in support of the Resolution. (ECF
No. 26, at 24–25). But the opinion went on to state
that “to invoke such a compelling interest, Defend-
ants would need to ‘demonstrate that the harms are
real, not merely conjectural, and that the [Resolution]
will in fact alleviate these harms in a direct and mate-
rial way.’ ” (Id. at 25 (quoting Turner Broad. Sys,
Inc. v. F.C.C., 512 U.S. 622, 664, 114 S.Ct. 2445,
129 L.Ed.2d 497 (1994))). At this stage, by contrast,
it became necessary for the County, in defending
against a motion for summary judgment, to make this
demonstration. The court ruled that it failed this re-
quirement. Because both statements were built on the
same compelling interest, the lack of evidence in
support of that interest meant that both statements
failed strict scrutiny, regardless of whether they were
considered separately or together. Therefore, the de-
cision only to consider the Resolution as an indivisi-
ble law was immaterial to the analysis and outcome
of the opinion. Defendants' motion to reconsider will
be denied.

[17][18] In its complaint, Plaintiff requested
damages pursuant to 42 U.S.C. § 1983. There is no
dispute that the Resolution has not been enforced
against Centro Tepeyac and it has not sought any
actual damages. Plaintiff does seek nominal damages.
“[I]n a case in which a plaintiff's civil rights are
found to have been violated, it is appropriate to
award nominal damages. Carey v. Piphus, 435 U.S.
247, 265, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978);
Norwood v. Bain, 166 F.3d 243, 254 (4th Cir.1999).
A plaintiff's failure to prove compensatory damages
results in nominal damages, typically one dollar.
Price v. City of Charlotte, N.C., 93 F.3d 1241, 1246
(4th Cir.1996).” Park v. Shiflett, 250 F.3d 843, 854
(4th Cir.2001); see also Farrar v. Hobby, 506 U.S.
103, 112, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (“
Carey obligates a court to award nominal damages
when a plaintiff establishes the violation of [a consti-
tutional right] but cannot prove actual injury.”).

Finally, the parties have filed a joint motion to
delay the deadlines for filing any fee petitions. Nor-
mally, a motion requesting attorneys' fees must be
filed within fourteen (14) days of entry of judgment.
Local Rule 109.2.a. The parties have requested a dif-
ferent schedule in the event that an appeal is filed
with the United States Court of Appeals for the
Fourth Circuit. The proposed schedule is a sensible
use of resources and will be approved. A separate
order will follow.

FN1. During discovery, Centro Tepeyac
filed an amended complaint. The amended
complaint alleged the § 1983 claims set
forth in the original complaint, as well as a
claim for violation of Article 40 of the Dec-
laration of Rights of the Maryland Constitu-
tion. (ECF No. 41).

FN2. This opinion was issued in conjunction
with an opinion addressing a similar ordi-
nance regulating pregnancy centers in Bal-
timore City. See Greater Balt. Ctr. for Preg-
nancy Concerns, Inc. v. Mayor & City
Council of Balt., 683 F.3d 539 (4th
Cir.2012). In that case, the Fourth Circuit
panel upheld the district court's grant of
summary judgment as to plaintiff.

FN3. The Fourth Circuit granted rehearing
en banc in Center for Pregnancy Concerns.
Nos. 11–1111(L), 11–1185, 2012 WL
7855859 (4th Cir. Aug. 15, 2012). The court
also issued its opinion on July 3, 2013, re-
versing the district court, holding that it
erred by entering a permanent injunction
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without allowing defendants discovery or
adhering to the applicable summary judg-
ment standard. 721 F.3d 264 (4th Cir.2013).

FN4. Plaintiff brings claims for violations of
the First Amendment (Count I) and Article
40 of the Maryland Declaration of Rights
(Count III). “Article 40 is read generally in
pari materia with the First Amendment.”
Nefedro v. Montgomery Cnty., 414 Md. 585,
593 n. 5, 996 A.2d 850 (2010). Therefore, it
is not necessary to consider Plaintiff's Arti-
cle 40 claim separately.

FN5. The County's contention that Centro
Tepeyac has conceded that it engages in
commerce is similarly unavailing. Accord-
ing to the County, Centro Tepeyac's asser-
tion that the County could address the con-
cerns motivating the Resolution through the
use of antifraud laws is an implicit conces-
sion that Centro Tepeyac is a commercial
actor. This contention, however, misunder-
stands the nature of Centro Tepeyac's argu-
ment. A close reading of Centro Tepeyac's
motion papers reveals that it discussed the
“use or amend[ment]” of these laws merely
to illustrate one way in which the County
could lawfully address its concerns. (ECF
No. 48–1, at 44) (emphasis added). At no
point did Centro Tepeyac ever concede that
it had engaged in commerce and that its
speech was commercial in nature.

FN6. The County also presents no evidence
indicating that Centro Tepeyac's employees
have engaged in the practice of any regulat-
ed profession. See Accountant's Soc'y of Va.
v. Bowman, 860 F.2d 602, 603–04 (4th
Cir.1988) (noting that “governmental regu-
lation of the professions is constitutional if
the regulations have a rational connection
with the applicant's fitness or capacity to
practice the profession” (internal quotation
marks omitted)).

FN7. Strict scrutiny is appropriate because
the Resolution compels Centro Tepeyac to
speak a particular message; thus, the parties'
remaining arguments about strict scrutiny's
applicability need not be resolved here.

FN8. Such evidence—coming outside the
legislative record—is permitted if it is used
to “explain the state interests behind chal-
lenged regulations” as opposed to a situation
“where there is no evidence in the pre-
enactment legislative record.” Greater Balt.
Ctr., 721 F.3d at 282 (quoting 11126 Balt.
Blvd. v. Prince George's Cnty., Md., 886
F.2d 1415, 1425 (4th Cir.1989), vacated on
other grounds, 496 U.S. 901, 110 S.Ct.
2580, 110 L.Ed.2d 261 (1990)). This evi-
dence will be permitted as is it helps to ex-
plain the County's interest behind the Reso-
lution, specifically that pregnant women be
fully informed.

FN9. In contrast, the record in Evergreen
Ass'n, 740 F.3d at 239–41, contains the type
of evidence lacking in this case.

FN10. Because Defendants have failed to
demonstrate an actual problem in need of
solving, it is unnecessary to reach the nar-
row tailoring prong of the strict scrutiny test.
Similarly, it is unnecessary to consider
Plaintiff's claims that the Resolution is un-
constitutionally vague. Count II of the
Amended Complaint, alleging violations of
the Equal Protection Clause of the Four-
teenth Amendment, is moot.

Furthermore, because Defendants have
not satisfied their burden in opposing
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Plaintiff's motion, their own motion for
summary judgment will necessarily be
denied.

D.Md.,2014.
Tepeyac v. Montgomery County
--- F.Supp.2d ----, 2014 WL 923230 (D.Md.)

END OF DOCUMENT


Case: 13-4429 Document: 003111680752 Page: 58 Date Filed: 07/16/2014

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