“We're not going to lose the battle and lose the war and have to pay for it.”
With those words from Mayor Pro Tem Sheryl Cole, the Austin City Council voted unanimously today to repeal our old Crisis Pregnancy Center ordinance, and then unanimously passed a revised ordinance intended to survive scrutiny in ongoing legal battles.
Back in 2010, Council unanimously passed an ordinance requiring Crisis Pregnancy Centers to post a sign on their doors stating that the businesses don't provide abortions, refer for abortions, or provide FDA-licensed birth control, and that there is no licensed medical professional on site. Since the passing of the 2010 ordinance, other cities' CPC regulation efforts have come under increased scrutiny, and many have been struck down. Here in Austin, a group of plaintiffs that operate the centers and generally oppose abortions sued the City, claiming that the ordinance — which simply requires CPCs to state what services they do not provide — violated their First Amendment rights.
Today, Council considered a revised ordinance, sponsored by Council Members Bill Spelman and Mike Martinez, that removed language from the original that was not likely to stand muster in the courts. (Read a preview of this issue here.) Council repealed the old ordinance–we cannot have two contradictory ordinances on the books–and then considered a new ordinance. The new ordinance requires a sign that doesn't make reference to abortions or birth control. It is strictly a disclosure that there is no licensed healthcare professional on site. That's what was determined to be most likely to stand up in court.
The absurdity of the situation is that CPC's don't have to be licensed. Taxi cabs, nail salons, food trailers, pedi-cabbers, even fishermen have to be licensed, but any anti-choice group can set up shop to intimidate and misinform women into carrying an unwanted pregnancy to term. Many of them also receive tremendous amounts of funding from the state. That's right — our tax dollars are being used to help these organizations intimidate women and provide incorrect information about abortion, pregnancy, and women's health.
Speakers were vastly in favor of the new ordinance requiring CPC signage, noting time and again that it's about informing women about what services the business provides. Genevieve van Cleve, Deputy Political Director of Annie's List, thanked the Council for supporting women, and reminded all present of the Texas Legislature's unrelenting assault on Texas women, children, and families. She emphasized the rights of consumers to know what services businesses provide, stating “not only can the government require truth in advertising for healthcare purposes, the government should do so.” Gen used the nail salon analogy to remind Council that most service providers must live up to a basic level of professionalism to keep operating. Not so for the deliberately misleading CPC's.
Other speakers included a volunteer attorney with Jane's Due Process who counsels pregnant women on their legal options and helps teenagers receive judicial bypass of parental notification laws when needed. She noted the time-sensitive nature of abortion, and that the longer women wait, the more costly or limited the services may be. (This especially true in Texas, where many providers won't perform an abortion after a certain number of weeks — we're not talking third trimester here, we're talking early- to- mid-second trimester.) CPC's confuse teenagers who want abortions, which can cost them precious time and money.
Speakers against the ordinance were almost all male (of course), and as Martinez pointed out, most don't even live here in Austin. Some claimed that it was a First Amendment issue; others simply seemed to hate abortion. Several tried to intimidate the Council with threats of exorbitant legal fees, which apparently was the main reservation our staunchly pro-choice Council had with the new ordinance. An attorney from the Liberty Institute suggested that if the City loses in the courts, they'll need to pay hundreds of thousands of dollars — possibly over $1 million — to the anti-choice groups pursuing the lawsuits.
That's a valid concern — if indeed our ordinance couldn't stand up in court and we lost, does Austin want to funnel large amounts of taxpayer money into anti-choice coffers? That's hardly in keeping with our community values. However, MPT Cole got to the heart of that issue during questioning of Sara Clark, the attorney for the City in this matter. Cole drove the point that if it looks like Austin won't prevail in the lawsuit, we can immediately repeal the ordinance before we lose in court.
The current ordinance is currently being litigated in Federal court. An appeal of the outcome of this first trial would land on the 5th Circuit Court, home of Chief Judge Edith Jones, the noted anti-abortion zealot who recently overturned Federal Judge Sparks' stay on the sonogram law. (Read more about Jones' extreme anti-choice views here.) The plaintiffs in the CPC case will likely revise their filings to sue the City over this new ordinance. However, speakers today were very confident that our new ordinance was carefully crafted to follow existing legal precedent from other Circuit courts, and has a very strong chance of winning if challenged.
As NARAL lobbyist Blake Rocap pointed out, we're simply asking the CPC's to post information that they themselves state is true — there are no licensed medical professionals on site. If CPC's already admit what Council wants them to admit on their own front doors, how is that compelled speech? Ironically, the sonogram lawsuit may actually work in our favor here, since Judge Edith Jones doesn't think it's an undue burden for abortion providers to perform a mandatory sonogram and require doctors to read off a fact sheet about fetal development before performing the procedure.
Spelman made a motion that Martinez seconded to pass the revised ordinance on all three readings, which requires a supermajority. Today, that would have been a 5-1 vote, since the Mayor was off the dais on an official trip to London to study economic development in the high-tech sector. Passing on all three readings means it's a done deal — no need to vote two more times on this issue.
So, good job Council. It's great to see them uphold our community values and provide women with accurate information. And a special thanks to Council Members Spelman and Martinez — both men, it's worth pointing out, who refused to let this issue drop and pushed this revised ordinance through. It's really great to see two males standing up for women's health, and something we'd all like to see a lot more of. Women's health is an issue that impacts our entire community, because it impacts our mothers, wives, sisters, friends, colleagues, and neighbors.
Hopefully our ordinance stands up in court, and can soon be enforced. If CPC's refuse to post the sign, citizens can call code compliance and 311. Likely the CPC's would be given a warning, but if they still refused to post the sign, they'd start getting tickets for Class C misdemeanors, punishable by a fine of up to $450.
We will keep you posted as this issue works its way through the courts.