Two Worcester Officials Say Two Proposed Pregnancy Center Ordinances Likely Unconstitutional

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Worcester city manager Eric Batista sent two draft ordinances targeting pro-life crisis pregnancy to the city council yesterday while calling both unconstitutional.

“We do not believe that the requested ordinances will effectively enhance protections for pregnant people or those seeking medical resources, which should be their ultimate goal,” Batista said in a letter dated Tuesday, August 22.

The city council was scheduled to discuss the measures Tuesday night but delayed hearing them until next month.

Last month, Batista was one of two Worcester officials who said the state attorney general’s office has informally advised Worcester officials not to proceed with an ordinance targeting crisis pregnancy centers.

The Worcester city solicitor, Michael Traynor, told city councilors during a public meeting in July that the attorney general’s office is advising cities and towns not to enact measures against crisis pregnancy centers for fear of drawing a costly civil-rights lawsuit the local government would likely lose.

Even so, at the direction of Worcester city councilors who support enacting such an ordinance, Traynor drafted two versions, each based on a measure either considered or enacted elsewhere in the state.

The first draft ordinance would ban what it calls “deceptive advertising” by crisis pregnancy centers, which it defines as “limited service” because they do not provide abortions or refer for abortions. 

The second draft ordinance would require advertising transparency from any center that provides pregnancy services, including those that provide abortion. The ordinance would obligate centers to post a statement saying whether the center is a licensed medical facility and whether it provides the services it lists in advertising.

Batista observed in his letter to city councilors that there are no crisis pregnancy centers in Somerville and Cambridge, the only two municipalities in Massachusetts that have adopted ordinances targeting them, meaning the municipalities likely will not see legal challenges.

Worcester is home to two such centers, which “opens the city to almost certain legal challenge, along with associated costs, if the proposed ordinances are adopted,” Batista wrote, noting that so far legal challenges against crisis pregnancy center measures in other places have succeeded on First Amendment free-speech grounds.

Massachusetts Family Institute, a pro-family advocacy group, sent a letter to the city council on Monday, August 21 threatening legal action if it passes the ordinances

In an August 22 letter to Batista, Worcester city solicitor Michael Traynor said he, too, thinks the proposals are unconstitutional.

“The Deceptive Advertising Ordinance is underinclusive and selective in its application,” Traynor wrote in the letter. “Essentially, the city would be saying that it is unlawful for limited pregnancy services centers to engage in deceptive advertising, but there is no similar prohibition imposed on full-service pregnancy services centers.” 

Traynor’s letter points to the U.S. Supreme Court case National Institute of Family and Life Advocates (NIFLA) v. Becerra, quoting from Citizens United v. Federal Election Comm’n, that the court’s “precedents are deeply skeptical of laws that ‘distinguis[h] among different speakers, allowing speech by some but not others.'”

“In my opinion,” Traynor concluded, “the Deceptive Advertising Ordinance would not survive a First Amendment challenge.”

Traynor wrote that he suspects the second draft ordinance regarding all pregnancy centers would meet a similar fate. He points to an instance where California required unlicensed centers providing pregnancy-related services to state that they were not licensed through a notice posted at the facility’s entrance. The federal Supreme Court ruled the measure unconstitutional in NIFLA v. Becerra.

“While the court expressed no view on the legality of a similar disclosure statement that is better supported or less burdensome,” Traynor wrote, “despite good intentions the legality of the Transparency in Advertising Ordinance is dubious.” 

Traynor said in the letter that the proposed Worcester ordinance mandates government-enforced speech, meaning it would likely be under strict-scrutiny review by the court.

“I do not believe it would survive that narrow, demanding level of review,” Traynor said in the letter.

Crisis pregnancy centers provide free products and services to women with problem pregnancies before and after birth, in hopes of helping them and preventing them from having an abortion.

Critics say some such centers mislead women about their services to try to lure them in for a pro-life pitch and that they often give women false information. Supporters of crisis pregnancy centers say the claims against them are false, and that such centers provide valuable help to women in need.

The proposed ordinances made public yesterday drew swift criticism from a supporter of crisis pregnancy centers.

C.J. Doyle, executive director of the Catholic Action League of Massachusetts, said in a written statement:  “In its rage over the Dobbs decision, the abortion lobby embarked on a reckless and punitive campaign to demonize, restrict, and suppress pro-life pregnancy care centers.” ​

“That campaign is now on a clear collision course with the First Amendment, and the First Amendment is likely to prevail,” he continued.

In July 2022, the Worcester City Council voted 6-5 to direct city staff to draft an ordinance targeting crisis pregnancy centers in the city. The city manager and city solicitor resisted the order, saying they believe such an ordinance would open the city to a costly lawsuit the city would likely lose. The proposed ordinance was the subject of a long discussion during a city council meeting last month.

The Worcester City Council is now scheduled to discuss the ordinances on Tuesday, September 12.


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