Centro Tepeyac v. Montgomery County: Great Outcome but Flawed Reasoning

Last month, the U.S. District Court for the District of Maryland ruled in Centro Tepeyac v. Montgomery County (Mo Co) that Mo Co can’t force Centro Tepeyac and other pro-life centers to post pro-abortion signs on their property.  For procedural reasons, this case has gone back and forth several times between this U.S. district court and the U.S. Court of Appeals for the Fourth Circuit.

As my previous article discussed, in early 2010, the Mo Co Council, sitting as the Mo Co Board of Health (BOH),1 passed a resolution ordering these pro-life centers to “post at least 1 sign in … [each] Center indicating” the following:

  • The Center does not have a licensed medical professional on staff.
  • The [Mo Co] Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider.
The BOH passed this resolution amid reports claiming that pro-life centers in Maryland and other states have given false, misleading, and incomplete medical information to visitors.  The reports’ examples of such information included that abortion can cause breast cancer2 and that, during pregnancy, a mother’s womb contains an actual baby.

According to Centro Tepeyac, the sign resolution violates pro-life centers’ freedom of speech.  Also, "licensed health care providers," mentioned above in the sign’s second statement, typically recommend abortion to women in "crisis pregnancies."  Thus, Centro Tepeyac argued that the mandated sign amounts to a referral to abortionists, which violates the center ’s purpose.

The U.S. District Court’s Recent Decision

In its recent decision, the U.S. district court ruled that Mo Co has power to safeguard pregnant women from “negative health outcomes.”  However, the court argued that the county had no evidence that Centro Tepeyac’s speech has hurt pregnant women.  For instance, the court noted that Mo Co hasn’t received “one complaint from someone who sought service at ... Centro Tepeyac” or “any evidence that any actual pregnant women who went to [Centro Tepeyac] ... delayed seeking medical care.”  The court concluded that Mo Co’s sign resolution unnecessarily violates Centro Tepeyac’s freedom of speech.

The Decision’s Factual Error

However, as with an earlier decision in 2013 by the U.S. Court of Appeals, the recent decision by the U.S. district court erred by identifying the Mo Co Council and not the BOH as responsible for passing the sign resolution.  For instance, the decision declared that “[o]n February 2, 2010, the Montgomery County Council passed [the sign resolution.]”  But the below picture of the resolution’s front page shows that the Mo Co Council was sitting as the Mo Co BOH when the county passed the resolution:

Thus, the BOH was responsible for passing the sign resolution.

This error is significant because, as my previous article noted, when the Council sits as the BOH, the Council surrenders its powers as Council and assumes the BOH’s powers.  The Council’s powers are broad and include the general power to “maintain the … health … of the county.”  But the BOH’s powers are quite limited, including only such powers as those to maintain “sanitation for eating [establishments]” and to address “any nuisance or cause of disease in the County.”

Why did the BOH and not the Council pass the sign resolution, especially given that the Council has the general power to maintain county health?  I made several inquiries to Mo Co officials, but no officials wanted to be quoted.  Nevertheless, based on my conversations with these officials, it appears the reason was to ensure that the sign resolution applied to all pro-life centers located in the county’s 19 municipalities, such as the municipalities of Gaithersburg and Rockville.  In general, BOH resolutions, but not Council regulations, are binding on all municipalities.  Centro Tepeyac isn’t in a municipality, but Shady Grove Pregnancy Center, another pro-life center, is in Gaithersburg.

U.S. District Court Used “Strict Scrutiny”

When considering the sign resolution’s constitutionality, the U.S. district court used a test of judicial review called strict scrutiny.  Courts use this test for cases involving free speech and other basic freedoms.  The first part of the test determines if the government is acting with a “compelling interest,” which must be a legitimate government power.  The second part of the test determines if the given government action is “narrowly tailored” to the “compelling interest.”  To make this latter judgment, courts typically examine if the government action is the least restrictive means available to the government to pursue its “compelling interest.”

In examining Mo Co’s “compelling interest” of safeguarding pregnant women in passing the sign resolution, the U.S. district court realized that Centro Tepeyac’s speech had, in fact, hurt no pregnant women in the county.  Thus, the court ruled that the resolution didn’t “actually further” the “compelling interest” and so automatically failed strict scrutiny.  The court didn’t even examine if the resolution was “narrowly tailored” to the “compelling interest.”

The Decision’s Error during Strict Scrutiny

However, because the U.S. district court identified the Mo Co Council and not the BOH as responsible for passing the sign resolution, the court further erred during its strict scrutiny of the resolution.  As mentioned earlier, this court claimed that Mo Co had a “compelling interest” in safeguarding pregnant women from “negative health outcomes.”  However, as this article has shown, the BOH has no such power, and so the court misidentified the county’s actual “compelling interest” at issue.

My previous article argued that Mo Co’s actual “compelling interest” in passing the sign resolution is to address “a nuisance or cause of disease in the county.”  After all, when the BOH passed the sign resolution, the BOH invoked its power to address “any nuisance or cause of disease in the county.”  However, I shouldn’t have stated that the “addressing of a nuisance” pertains to Mo Co’s “compelling interest.”

Throughout U.S. history, public nuisance laws have regulated a broad range of activities and conditions that endanger or annoy the public.  These activities and conditions have included loud noises, smoking chimneys, air pollution, tobacco-smoking, and many others.  However, to my knowledge, no public nuisance laws have considered the peaceful communication of pro-life ideas a nuisance.  According to Maryland health law, a nuisance is a “condition that is dangerous to health or safety” and can include “an unsanitary outhouse,” “a foul pigpen,” “an unkempt junkyard,” and similar examples.  Surely Centro Tepeyac’s speech isn’t akin to these nuisances.  Since nuisance laws can’t apply to Centro Tepeyac’s speech, the only “compelling interest” that’s relevant to BOH’s sign resolution is to address a “cause of disease in the county.”

The Correct Application of Strict Scrutiny

Accordingly, strict scrutiny by the U.S. district court should have simply examined if the sign resolution addresses a “cause of disease in the county.”  The American Heritage Dictionary defines a “disease” as “an abnormal condition of a part, organ, or system of an organism resulting from various causes, such as infection, inflammation, environmental factors, or genetic defect, and characterized by an identifiable group of signs, symptoms, or both.”  And MedicineNet.com lists several diseases to which pregnant women are vulnerable, such as urinary tract infections and bacterial vaginosis.  And so strict scrutiny should have ended when the court realized that Centro Tepeyac’s speech caused no visitors to get urinary tract infections or other diseases.

Instead, as discussed above, the U.S. district court examined if visitors to Centro Tepeyac experienced any “negative health outcomes,” an expansive concept that can include many conditions that aren’t diseases, such as emotional distress, weight gain, and poor sleeping.  In the U.S. district court’s decision, Centro Tepeyac was fortunate because, as the court noted, no visitors to the center ever complained to the county that the center caused them “negative health outcomes.”  However, what if, say, a visitor had complained to county officials that the center’s speech unnecessarily prolonged her pregnancy, which led to emotional distress and weight gain?  Such a complaint could have “justified” the sign resolution.

A Negative Consequence of the Decision

It’s concerning enough that the BOH passed the sign resolution in the first place.  After all, before this resolution, the BOH had passed resolutions dealing with only the following 30 subjects:

  • Department of Health [general]
  • Rabies
  • Group Day Care Centers [repealed]
  • Eating and Drinking Establishments
  • Health or Sanitation
  • Health Planning
  • Hospitals, Sanitariums, Nursing and Care Homes
  • Individual Water Supply and Sewage Disposal System
  • Massage [repealed]
  • Rat Control
  • Private Schools and Recreational Camps
  • Slaughterhouses
  • Swimming Pools
  • Tanning Facilities
  • Tanning Facilities - Use by Minors
  • Eating and Drinking Establishments
  • Swimming Pool Fence Permits
  • CPR Certification for Lifeguards
  • Swimming Pool Operator’s License
  • Swimming Pool Fences
  • Lifeguards—Minimum Age
  • Bicycle Helmets
  • Private spas—safety covers
  • Well Inspection and Testing—Fee
  • Massage
  • Tobacco - Distribution to Minors
  • Smoking in public places
  • Restricting Trans Fat Use in Eating and Drinking Establishments
  • Requiring Certain Eating and Drinking Establishments to Post Certain Nutrition Information on Menu Boards and Menus

At least upon first glance, all of these subjects of BOH resolutions, such as the ones dealing with rabies, rat control, and smoking tobacco in public, appear to be consistent with the BOH’s limited powers.  Hopefully, the sign resolution isn’t the start of a trend in abuse of the BOH’s limited powers.

But what’s worse is the fact that the U.S. district court’s inability to distinguish BOH resolutions from the Mo Co Council’s regulations could encourage the BOH to pass future resolutions that exceed its authority and overlap with the Council’s powers.  For instance, the BOH could pass resolutions tied to “maintain[ing] the … health … of the county,” such as laws to reduce “negative health outcomes” among residents, instead of addressing diseases and following its other limited powers.

Conclusion

The recent decision by the U.S. district court was a great outcome for Centro Tepeyac’s freedom of speech.  However, Mo Co may appeal this decision.  If so, then the U.S. Court of Appeals for the Fourth Circuit will review the case.  The U.S. Court of Appeals should correct the U.S. district court’s error that the Mo Co Council was responsible for passing the sign resolution.  Then, the U.S. Court of Appeals should correctly apply strict scrutiny to the sign resolution and declare that the resolution has nothing to do with addressing a “cause of disease.”  By doing so, the U.S. Court of Appeals could also help prevent the BOH from further abusing its power.

Daniel Smyth is co-founder and editor of LibertyBlog.org.  His articles have been in the Washington Times, Live Action News, the Freeman, and other publications.  Find him on Twitter at @DanielSmyth7.

* * *

1 Maryland law declares that, by default, counties’ governing bodies are their boards of health.  In Mo Co’s case, the council is the governing body and thus the board of health.

2 However, even months before the BOH passed the sign resolution, high-profile studies in the United States, Turkey, and China showed a link between abortion and breast cancer.

Last month, the U.S. District Court for the District of Maryland ruled in Centro Tepeyac v. Montgomery County (Mo Co) that Mo Co can’t force Centro Tepeyac and other pro-life centers to post pro-abortion signs on their property.  For procedural reasons, this case has gone back and forth several times between this U.S. district court and the U.S. Court of Appeals for the Fourth Circuit.

As my previous article discussed, in early 2010, the Mo Co Council, sitting as the Mo Co Board of Health (BOH),1 passed a resolution ordering these pro-life centers to “post at least 1 sign in … [each] Center indicating” the following:

  • The Center does not have a licensed medical professional on staff.
  • The [Mo Co] Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider.

The BOH passed this resolution amid reports claiming that pro-life centers in Maryland and other states have given false, misleading, and incomplete medical information to visitors.  The reports’ examples of such information included that abortion can cause breast cancer2 and that, during pregnancy, a mother’s womb contains an actual baby.

According to Centro Tepeyac, the sign resolution violates pro-life centers’ freedom of speech.  Also, "licensed health care providers," mentioned above in the sign’s second statement, typically recommend abortion to women in "crisis pregnancies."  Thus, Centro Tepeyac argued that the mandated sign amounts to a referral to abortionists, which violates the center ’s purpose.

The U.S. District Court’s Recent Decision

In its recent decision, the U.S. district court ruled that Mo Co has power to safeguard pregnant women from “negative health outcomes.”  However, the court argued that the county had no evidence that Centro Tepeyac’s speech has hurt pregnant women.  For instance, the court noted that Mo Co hasn’t received “one complaint from someone who sought service at ... Centro Tepeyac” or “any evidence that any actual pregnant women who went to [Centro Tepeyac] ... delayed seeking medical care.”  The court concluded that Mo Co’s sign resolution unnecessarily violates Centro Tepeyac’s freedom of speech.

The Decision’s Factual Error

However, as with an earlier decision in 2013 by the U.S. Court of Appeals, the recent decision by the U.S. district court erred by identifying the Mo Co Council and not the BOH as responsible for passing the sign resolution.  For instance, the decision declared that “[o]n February 2, 2010, the Montgomery County Council passed [the sign resolution.]”  But the below picture of the resolution’s front page shows that the Mo Co Council was sitting as the Mo Co BOH when the county passed the resolution:

Thus, the BOH was responsible for passing the sign resolution.

This error is significant because, as my previous article noted, when the Council sits as the BOH, the Council surrenders its powers as Council and assumes the BOH’s powers.  The Council’s powers are broad and include the general power to “maintain the … health … of the county.”  But the BOH’s powers are quite limited, including only such powers as those to maintain “sanitation for eating [establishments]” and to address “any nuisance or cause of disease in the County.”

Why did the BOH and not the Council pass the sign resolution, especially given that the Council has the general power to maintain county health?  I made several inquiries to Mo Co officials, but no officials wanted to be quoted.  Nevertheless, based on my conversations with these officials, it appears the reason was to ensure that the sign resolution applied to all pro-life centers located in the county’s 19 municipalities, such as the municipalities of Gaithersburg and Rockville.  In general, BOH resolutions, but not Council regulations, are binding on all municipalities.  Centro Tepeyac isn’t in a municipality, but Shady Grove Pregnancy Center, another pro-life center, is in Gaithersburg.

U.S. District Court Used “Strict Scrutiny”

When considering the sign resolution’s constitutionality, the U.S. district court used a test of judicial review called strict scrutiny.  Courts use this test for cases involving free speech and other basic freedoms.  The first part of the test determines if the government is acting with a “compelling interest,” which must be a legitimate government power.  The second part of the test determines if the given government action is “narrowly tailored” to the “compelling interest.”  To make this latter judgment, courts typically examine if the government action is the least restrictive means available to the government to pursue its “compelling interest.”

In examining Mo Co’s “compelling interest” of safeguarding pregnant women in passing the sign resolution, the U.S. district court realized that Centro Tepeyac’s speech had, in fact, hurt no pregnant women in the county.  Thus, the court ruled that the resolution didn’t “actually further” the “compelling interest” and so automatically failed strict scrutiny.  The court didn’t even examine if the resolution was “narrowly tailored” to the “compelling interest.”

The Decision’s Error during Strict Scrutiny

However, because the U.S. district court identified the Mo Co Council and not the BOH as responsible for passing the sign resolution, the court further erred during its strict scrutiny of the resolution.  As mentioned earlier, this court claimed that Mo Co had a “compelling interest” in safeguarding pregnant women from “negative health outcomes.”  However, as this article has shown, the BOH has no such power, and so the court misidentified the county’s actual “compelling interest” at issue.

My previous article argued that Mo Co’s actual “compelling interest” in passing the sign resolution is to address “a nuisance or cause of disease in the county.”  After all, when the BOH passed the sign resolution, the BOH invoked its power to address “any nuisance or cause of disease in the county.”  However, I shouldn’t have stated that the “addressing of a nuisance” pertains to Mo Co’s “compelling interest.”

Throughout U.S. history, public nuisance laws have regulated a broad range of activities and conditions that endanger or annoy the public.  These activities and conditions have included loud noises, smoking chimneys, air pollution, tobacco-smoking, and many others.  However, to my knowledge, no public nuisance laws have considered the peaceful communication of pro-life ideas a nuisance.  According to Maryland health law, a nuisance is a “condition that is dangerous to health or safety” and can include “an unsanitary outhouse,” “a foul pigpen,” “an unkempt junkyard,” and similar examples.  Surely Centro Tepeyac’s speech isn’t akin to these nuisances.  Since nuisance laws can’t apply to Centro Tepeyac’s speech, the only “compelling interest” that’s relevant to BOH’s sign resolution is to address a “cause of disease in the county.”

The Correct Application of Strict Scrutiny

Accordingly, strict scrutiny by the U.S. district court should have simply examined if the sign resolution addresses a “cause of disease in the county.”  The American Heritage Dictionary defines a “disease” as “an abnormal condition of a part, organ, or system of an organism resulting from various causes, such as infection, inflammation, environmental factors, or genetic defect, and characterized by an identifiable group of signs, symptoms, or both.”  And MedicineNet.com lists several diseases to which pregnant women are vulnerable, such as urinary tract infections and bacterial vaginosis.  And so strict scrutiny should have ended when the court realized that Centro Tepeyac’s speech caused no visitors to get urinary tract infections or other diseases.

Instead, as discussed above, the U.S. district court examined if visitors to Centro Tepeyac experienced any “negative health outcomes,” an expansive concept that can include many conditions that aren’t diseases, such as emotional distress, weight gain, and poor sleeping.  In the U.S. district court’s decision, Centro Tepeyac was fortunate because, as the court noted, no visitors to the center ever complained to the county that the center caused them “negative health outcomes.”  However, what if, say, a visitor had complained to county officials that the center’s speech unnecessarily prolonged her pregnancy, which led to emotional distress and weight gain?  Such a complaint could have “justified” the sign resolution.

A Negative Consequence of the Decision

It’s concerning enough that the BOH passed the sign resolution in the first place.  After all, before this resolution, the BOH had passed resolutions dealing with only the following 30 subjects:

  • Department of Health [general]
  • Rabies
  • Group Day Care Centers [repealed]
  • Eating and Drinking Establishments
  • Health or Sanitation
  • Health Planning
  • Hospitals, Sanitariums, Nursing and Care Homes
  • Individual Water Supply and Sewage Disposal System
  • Massage [repealed]
  • Rat Control
  • Private Schools and Recreational Camps
  • Slaughterhouses
  • Swimming Pools
  • Tanning Facilities
  • Tanning Facilities - Use by Minors
  • Eating and Drinking Establishments
  • Swimming Pool Fence Permits
  • CPR Certification for Lifeguards
  • Swimming Pool Operator’s License
  • Swimming Pool Fences
  • Lifeguards—Minimum Age
  • Bicycle Helmets
  • Private spas—safety covers
  • Well Inspection and Testing—Fee
  • Massage
  • Tobacco - Distribution to Minors
  • Smoking in public places
  • Restricting Trans Fat Use in Eating and Drinking Establishments
  • Requiring Certain Eating and Drinking Establishments to Post Certain Nutrition Information on Menu Boards and Menus

At least upon first glance, all of these subjects of BOH resolutions, such as the ones dealing with rabies, rat control, and smoking tobacco in public, appear to be consistent with the BOH’s limited powers.  Hopefully, the sign resolution isn’t the start of a trend in abuse of the BOH’s limited powers.

But what’s worse is the fact that the U.S. district court’s inability to distinguish BOH resolutions from the Mo Co Council’s regulations could encourage the BOH to pass future resolutions that exceed its authority and overlap with the Council’s powers.  For instance, the BOH could pass resolutions tied to “maintain[ing] the … health … of the county,” such as laws to reduce “negative health outcomes” among residents, instead of addressing diseases and following its other limited powers.

Conclusion

The recent decision by the U.S. district court was a great outcome for Centro Tepeyac’s freedom of speech.  However, Mo Co may appeal this decision.  If so, then the U.S. Court of Appeals for the Fourth Circuit will review the case.  The U.S. Court of Appeals should correct the U.S. district court’s error that the Mo Co Council was responsible for passing the sign resolution.  Then, the U.S. Court of Appeals should correctly apply strict scrutiny to the sign resolution and declare that the resolution has nothing to do with addressing a “cause of disease.”  By doing so, the U.S. Court of Appeals could also help prevent the BOH from further abusing its power.

Daniel Smyth is co-founder and editor of LibertyBlog.org.  His articles have been in the Washington Times, Live Action News, the Freeman, and other publications.  Find him on Twitter at @DanielSmyth7.

* * *

1 Maryland law declares that, by default, counties’ governing bodies are their boards of health.  In Mo Co’s case, the council is the governing body and thus the board of health.

2 However, even months before the BOH passed the sign resolution, high-profile studies in the United States, Turkey, and China showed a link between abortion and breast cancer.

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