Centro Tepeyac, a pro-life center in Montgomery County (Mo Co), Maryland, is officially a First Amendment martyr.  On July 3, 2013, the U.S. Court of Appeals for the Fourth Circuit ruled in Centro Tepeyac v. Montgomery County that Mo Co can force Centro Tepeyac and other pro-life centers to post signs on their properties contrary to their will.  This case could now be headed to the Supreme Court.

In early 2010, the Mo Co Council, sitting as the Mo Co Board of Health (BOH), passed a regulation 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 ["licensed pro"]
• The [Mo Co] Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider ["abortionist-referral"]

The BOH passed this regulation 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 cancer and that, during pregnancy, a mother's womb contains an actual baby.

The Fourth Circuit's majority upheld a U.S. district court's rulings that the "licensed pro" mandate is constitutional and the "abortionist-referral" mandate isn't.  However, as I've argued before, both mandates violate the pro-life centers' First Amendment freedoms of speech, assembly, and press.

Fourth Circuit Used "Strict Scrutiny"

Nevertheless, to determine the Mo Co sign's constitutionality, the Fourth Circuit's majority applied a test of judicial review called strict scrutiny.  Strict scrutiny is a two-part test that courts have used for decades in cases dealing with such constitutional rights as the First Amendment's freedoms of speech and the press.  The first part of the test determines if the government is acting in a "compelling interest" when restricting the given constitutional right.  The Supreme Court has provided little guidance on what constitutes a "compelling government interest."  However, the Supreme Court has established that a "compelling government interest" is at least an interest in exercising a lawful government power.  The Supreme Court has ruled that some of the federal government's "compelling interests" are to "maintai[n] a stable political system" and to "protec[t] 'the unique role [of] the press.'"

The second part of strict scrutiny is to determine if the given law is "narrowly tailored" to the given "compelling interest."  In a case like Centro Tepeyac's, a law "is narrowly tailored if it targets and eliminates no more than the exact source of the 'evil' it seeks to remedy."  A primary measure of whether a law is narrowly tailored is if the law is the least restrictive means available to the government to remedy the supposed evil.

The Majority's Findings

In applying the "compelling interest" component of strict scrutiny to each part of Mo Co's sign mandate, the Fourth Circuit's majority alleged that the BOH has "a compelling interest in ensuring that its citizenry are able to obtain needed medical care."  The majority claimed further that this interest "might fall within the ambit of the state's [Maryland's] broader interest in preserving public health."

Regarding the second component of strict scrutiny, the majority said the "abortionist-referral" statement wasn't narrowly tailored to ensure that pregnant women can obtain needed medical care.  For instance, the court acknowledged that the BOH could have pursued less restrictive means than the "abortionist-referral" mandate.  As just two examples, the BOH could have "post[ed] notices [in its own facilities] encouraging women to see a doctor" or "launch[ed] a public awareness campaign [about the supposed evils of Centro Tepeyac and other pro-life centers]."  The majority did say, however, that the "licensed pro" statement was narrowly tailored because it was "true," "neutral," and "does not require any other specific message."  Also, with no elaboration, the court claimed that no less restrictive means besides this "licensed pro" mandate was available to ensure that pregnant women can obtain needed medical care.

The Dissent

The Fourth Circuit's minority countered that, according to strict scrutiny, the "licensed pro" mandate isn't narrowly tailored to ensure that pregnant women can obtain needed medical care.  For instance, the dissent noted that this mandated statement targets pro-life centers and not other sources of pregnancy advice that lack medical licenses, such as bookstores or churches in the county.  And the dissent discussed less restrictive options available to Mo Co to ensure that pregnant women can access needed medical care.  One discussed option was the creation of a Mo Co webpage listing local pregnancy centers according to their status of medical licensure.

The Actual "Compelling Interest"

However, the dissent's argument was incomplete.  The dissent should've argued further that the BOH actually possesses no "compelling interest" in ensuring that pregnant women can obtain needed medical care.  State and county laws provide the BOH its powers.  It's true that Maryland law grants Mo Co Council and other county councils the broad police power to "maintain the peace, good government, health [emphasis added] and welfare of the county."  But when the Mo Co Council sits as the BOH, the council loses its broad police power.

According to Maryland law, the BOH has limited powers, such as the powers to "adopt ... regulations on any nuisance or cause of disease in the county," "set ... any fee ... in connection with its rules," and exercise any other "power provided by law."  County laws do provide the BOH several other limited powers, such as the powers to adopt regulations concerning "sanitation for eating ... establishments" and "the health ... of the patients in [nursing homes]."  But no county law provides the BOH the power to ensure that pregnant women can obtain needed medical care or to generally maintain public health.

When passing the sign regulation as the BOH, Mo Co Council invoked the BOH's power to address "any nuisance or cause of disease in the county."  And it's this power that indicates Mo Co's actual "compelling interest" in passing the sign regulation, which is to reduce, remove, or prevent a nuisance or cause of disease in the county.  As mentioned earlier, according to BOH, the nuisance or cause of disease is the propagation by pro-life centers of false, misleading, and incomplete medical information to pregnant women.

"Licensed Pro" Mandate Still Fails Strict Scrutiny

Even if the Fourth Circuit's majority recognized BOH's actual "compelling interest" in reducing, removing, or preventing a nuisance or cause of disease, the "licensed pro" mandate still fails strict scrutiny.  For one, the "licensed pro" mandate isn't narrowly tailored as it appears to eliminate more "evil" than the alleged propagation of false, misleading, and incomplete medical information to pregnant women.  For instance, the "licensed pro" mandate appears to be trying to eliminate medical fraud.  Reasonable readers of the "licensed pro" statement could falsely infer that Centro Tepeyac and other pro-life centers have presented visitors fake medical licenses or lied to visitors about having medical licenses.

Also, the "licensed pro" mandate is hardly the least restrictive means available to BOH to reduce, remove, or prevent the alleged propagation of false, misleading, and incomplete medical information to pregnant women.  For example, BOH could post billboards along county roads with the following or a similar message:

Pregnant women: Centro Tepeyac and other pro-life centers propagate information that's a nuisance or cause of disease in the county.

Such billboards would be ridiculous, but at least these billboards wouldn't violate pro-life centers' First Amendment freedoms.

Conclusion

If the Supreme Court reviews Centro Tepeyac v. Montgomery County, the court should note that the Fourth Circuit's majority made several errors.  As the dissent argued, the majority misjudged the "licensed pro" mandate as narrowly tailored to Mo Co's supposed "compelling interest" in ensuring that pregnant women can obtain needed medical care.  In making this error, the majority misidentified the "licensed pro" mandate as the least restrictive means available to Mo Co to pursue this supposed "compelling interest."

And, regardless of these points and as this article has argued, the majority even misidentified Mo Co's "compelling interest" in passing the sign mandate as the interest in ensuring that pregnant women can obtain needed medical care.  As the BOH and not the Mo Co Council itself passed the sign regulation, the actual "compelling interest" at issue is in reducing, removing, or preventing a nuisance or cause of disease in the county.  However, even under this actual "compelling interest," the "licensed pro" mandate fails strict scrutiny.  The Supreme Court should correct the majority's errors and declare that the "licensed pro" mandate is unconstitutional.

Daniel Smyth is co-founder and editor of LibertyBlog.org.  Follow him on Twitter at @DanielSmyth7.

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.

"Licensed health care providers" typically recommend abortion to women in "crisis pregnancies."

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

Search the Mo Co Code for "board of health" and see the list of county laws that mention the Board of Health.