Friday, February 4, 2011

WA State Attorney General Rob McKenna Declares the Proposed Limited Service Pregnancy Center Accountability Act Unconstitutional

WA State Senate Health and Long-Term Care Committee Presides Over Contentious Hearing

On February 2nd the Senate Health and Long-Term Care Committee held a hearing taking testimony from supporters and opponents of the Limited Service Pregnancy Center Accountability Act (SB 5274/HB 1366).  The proposed Act will help protect women from some of the more deceptive practices at Limited Service Pregnancy Centers (LSPC) or so called Crisis Pregnancy Centers.  Kathy Buchli, Counsel for the Committee, informed the Committee that Washington State Attorney General Rob McKenna believes that the Act is unconstitutional because it violates the 1st Amendment.  Ms. Buchli stated that Mr. McKenna believes the Act violates the 1st Amendment because it requires “compelled speech” and suppresses freedom of expression.  

Mr. McKenna appears to be taking his cues directly from Maryland federal district court judge Marvin J. Garbis.  On January 28th Judge Garbis declared a similar Baltimore City ordinance regulating LSPCs unconstitutional.  Ms. Buchli announced that Mr. McKenna also thinks the Act goes far beyond the Baltimore law regarding violations of the 1st Amendment. 

Throughout the oftentimes contentious hearing, where Committee members argued and talked over one another, the recent Baltimore ruling permeated much of the discussion. 

Three Republican Committee members agreed with the Attorney General’s assessment that the Act is unconstitutional.  Republican Senators Cheryl Pflug, Adam Kline, and Mike Carrell repeatedly cited specific language from the Baltimore decision to express their belief that the Act requires “forced speech” from LSPCs in violation of the 1st Amendment. 

These same Committee members also insisted that the Act’s disclosure requirements would inevitably lead to LSPCs going out of business because disgruntled women would bring frivolous lawsuits and end up suing LSPCs out of business. 

The primary sponsor of the bill, Senator Kevin Ranker (D), stated that the Act is solely designed to ensure that women receive accurate and honest information at LSPCs in order to make informed medical choices.  He rejected the argument that the Act would eventually put LSPCs out of business. 

Some women spoke out about being denied their pregnancy test results at LSPCs and how they were told lies about the risks associated with abortion.  Senator Pflug repeatedly challenged gynecologist Dr. Kate McLean regarding whether abortion increases a woman’s risk of developing breast cancer.  Senator Pflug was shocked when Dr. McLean stated there is no evidence that abortion increases a woman’s risk of getting breast cancer.  The Senator insisted that there is indeed evidence showing a correlation between abortion and breast cancer and rejected the notion that LSPCs provide women with inaccurate medical information. 

The most direct testimony referencing the Baltimore decision came from Spokane attorney Jeff Smith.  He too stated that the Act violates the 1st Amendment because it requires compelled speech.  Going even further, he stated that the Act also violates the equal protection clause because it discriminates against a specific political ideology.  Mr. Smith agreed with Rob McKenna’s assessment that the Act goes far beyond the Baltimore ordinance and would therefore be unenforceable. 

 Attorney Shankar Narayan, Legislative Director for the ACLU WA, countered Mr. Smith’s arguments about the Baltimore ruling telling the Committee that the Act does not restrict free speech and does not limit the content of speech.  In fact, the ACLU WA opposed last year’s proposed LSPC legislation precisely because they concluded that last year’s legislation did regulate the content of speech.  He defended the constitutionality of the Act’s disclosure and external signage requirements explaining that the requirements do not amount to the regulation of the content of speech.  Instead, the disclosure requirements are narrowly tailored to address the specific problem of women being confused about what services LSPCs offer and more importantly, do not offer. 

How will the Baltimore decision affect the future of the Washington State LSPC Accountability Act? 

How will WA State Attorney General McKenna’s viewpoint impact legislative support for the Act?  How will his stance affect future litigation challenging the constitutionality of the Act if the Act becomes law?

Call your legislators and ask them to support the Limited Service Pregnancy Center Accountability Act (HB 1366/SB 5274).  Let’s work together to protect women’s privacy, access to accurate and honest medical information, and access to timely reproductive health care. 

You can find your legislator’s phone number here.

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