BALTIMORE CTR. FOR PREGNANCY CONCERNS v. MAYOR

Nos. 11-1111, 11-1185.

721 F.3d 264 (2013)

GREATER BALTIMORE CENTER FOR PREGNANCY CONCERNS, INCORPORATED, Plaintiff-Appellee, and St. Brigid's Roman Catholic Congregation Incorporated; Archbishop William E. Lori, as successor to Archbishop Edwin F. O'Brien, Archbishop of Baltimore, and his successor in office, a corporation sole, Plaintiffs, v. MAYOR AND CITY COUNCIL OF BALTIMORE; Stephanie Rawlings-Blake, Mayor of Baltimore, in her Official Capacity; Oxiris Barbot, Baltimore City Health Commissioner, Defendants-Appellants, and Olivia Farrow; Baltimore City Health Department, Defendants. Taunya Lovell Banks, Jacob A. France Professor of Equality Jurisprudence, University of Maryland School of Law; C. Christopher Brown, Associate Professor Emeritus of Law, University of Maryland School of Law; Erwin Chemerinsky, Dean and Distinguished Professor of Law, University of California, Irvine School of Law; Robert J. Condlin, Professor of Law, University of Maryland School of Law; Norman Dorsen, Frederick I. and Grace A. Stokes Professor of Law, New York University School of Law; Leigh Goodmark, Associate Professor of Law, University of Baltimore School of Law; Steven P. Grossman, Dean Julius Isaacson Professor of Law, University of Baltimore School of Law; Martin Guggenheim, Fiorello LaGuardia Professor of Clinical Law, New York University School of Law; Deborah Hellman, Professor of Law and Jacob France Research Professor, University of Maryland School of Law; Margaret E. Johnson, Assistant Professor of Law, University of Baltimore School of Law; Kenneth Lasson, Professor of Law, University of Baltimore School of Law; Sylvia A. Law, Elizabeth K. Dollard Professor of Law, Medicine and Psychiatry, New York University School of Law; Susan Paula Leviton, Professor of Law, University of Maryland School of Law; Audrey McFarlane, Professor of Law, University of Baltimore School of Law; Paula A. Monopoli, Professor of Law, University of Maryland School of Law; Burt Neuborne, Inez Milholland Professor of Civil Liberties, New York University School of Law; John T. Nockleby, Professor of Law, Loyola Law School; Helen L. Norton, Associate Professor of Law, University of Colorado School of Law; David A.J. Richards, Edwin D. Webb Professor of Law, New York University School of Law; Elizabeth J. Samuels, Professor of Law, University of Baltimore School of Law; Elizabeth M. Schneider, Rose L. Hoffer Professor of Law, Brooklyn Law School; Jana B. Singer, Professor of Law, University of Maryland School of Law; Barbara Ann White, Professor of Law, University of Baltimore School of Law; Tobias Barrington Wolff, Professor of Law, University of Pennsylvania Law School; Diane L. Zimmerman, Samuel Tilden Professor of Law Emerita, New York University School of Law; International Municipal Lawyers Association; American Medical Women's Association; Robert Blum; Willard Cates, Jr.; Chesapeake Regional Chapter of the Society for Adolescent Health and Medicine; Eric Levey; Maternal and Child Health Access; Nadine Peacock; Physicians for Reproductive Choice and Health; Mark Seigel; Laurie Schwab Zabin; Eva Moore; Catholics for Choice; DC Abortion Fund; Diana Degette; Donna Edwards; Law Students for Reproductive Justice; Carolyn Maloney; Maryland Chapter for the National Organization for Women; Naral Pro-Choice America; Naral Pro-Choice Maryland; National Abortion Federation; National Advocates for Pregnant Women; National Asian Pacific American Women's Forum; Planned Parenthood of Maryland; Mike Quigley; Religious Coalition for Reproductive Choice; Sistersong Women of Color Reproductive Justice Collective; Louise Slaughter; Jackie Speier; Whole Woman's Health of Baltimore; Women's Law Center of Maryland, Incorporated; Human Rights Watch; Susan Deller Ross, Professor; Elijah Cummings, Amici Supporting Appellants, Pregnancy Care Organizations Care Net; Heartbeat International, Incorporated; National Institute of Family and Life Advocates; Rocka-My-Baby Pregnancy Crisis Center; Bowie Crofton Pregnancy Clinic, Incorporated; Care Net Pregnancy Center of Frederick; Care Net Pregnancy Center of Southern Maryland; Laurel Pregnancy Center; Rockville Pregnancy Center, Incorporated; American Center for Law and Justice; American Association of Pro-Life Obstetricians and Gynecologists; Christian Medical & Dental Associations; Catholic Medical Association; Helen M. Alvare, Associate Professor of Law, George Mason University School of Law; Robert John Araujo, S.J., John Courtney Murray, S.J. University Professor, Loyola University of Chicago School of Law; Robert F. Cochran, Jr., Louis D. Brandeis Professor of Law, Pepperdine University School of Law; David Dewolf, Professor, Gonzaga University School of Law; Dwight G. Duncan, Professor of Law, University of Massachusetts Dartmouth School of Law; John C. Eastman, Henry Salvatori Professor of Law & Community Service, former Dean, Chapman University School of Law; Scott T. Fitzgibbon, Professor, Boston College Law School; Richard W. Garnett, Associate Dean and Professor of Law, Notre Dame Law School; Bradley P. Jacob, Associate Professor, Regent University School of Law; Drew L. Kershen, Earl Sneed Centennial Professor of Law, University of Oklahoma College of Law; Lynne Marie Kohm, John Brown McCarty Professor of Family Law, Regent University School of Law; Richard S. Myers, Professor of Law, Ave Maria School of Law; Michael Stokes Paulsen, Distinguished University Chair and Professor, University of St. Thomas School of Law; Robert J. Pushaw, James Wilson Endowed Professor of Law, Pepperdine University School of Law; Michael Scaperlanda, Professor of Law, Gene & Elaine Edwards Family Chair in Law, The University of Oklahoma College of Law; Gregory C. Sisk, Pio Cardinal Laghi Distinguished Chair in Law and Professor, University of St. Thomas School of Law; O. Carter Snead, Professor of Law, Notre Dame Law School; Richard Stith, Professor of Law, Valparaiso University School of Law; Timothy J. Tracey, Assistant Professor of Law, Ave Maria School of Law; Lynn D. Wardle, Bruce C. Hafen Professor of Law, J. Reuben Clark Law School, Brigham Young University; The National Legal Foundation, Amici Supporting Appellees. St. Brigid's Roman Catholic Congregation Incorporated; Archbishop William E. Lori, as successor to Archbishop Edwin F. O'Brien, Archbishop of Baltimore, and his successor in office, a corporation sole, Plaintiffs-Appellants, and Greater Baltimore Center for Pregnancy Concerns, Incorporated, Plaintiff, v. Mayor and City Council of Baltimore; Stephanie Rawlings-Blake, Mayor of Baltimore, in her Official Capacity; Oxiris Barbot, Baltimore City Health Commissioner, Defendants-Appellees, and Olivia Farrow; Baltimore City Health Department, Defendants. Helen M. Alvare, Associate Professor of Law, George Mason University School of Law; American Center for Law and Justice; American Association of Pro-Life Obstetricians and Gynecologists; Robert John Araujo, S.J., John Courtney Murray, S.J. University Professor, Loyola University of Chicago School of Law; Bowie Crofton Pregnancy Clinic, Incorporated; Care Net Pregnancy Center of Frederick; Care Net Pregnancy Center of Southern Maryland; Christian Medical & Dental Associations; Catholic Medical Association; Robert F. Cochran, Jr., Louis D. Brandeis Professor of Law, Pepperdine University School of Law; David Dewolf, Professor, Gonzaga University School of Law; Dwight G. Duncan, Professor of Law, University of Massachusetts Dartmouth School of Law; John C. Eastman, Henry Salvatori Professor of Law & Community Service, former Dean, Chapman University School of Law; Scott T. Fitzgibbon, Professor, Boston College Law School; Richard W. Garnett, Associate Dean and Professor of Law, Notre Dame Law School; Heartbeat International, Incorporated; Bradley P. Jacob, Associate Professor, Regent University School of Law; Drew L. Kershen, Earl Sneed Centennial Professor of Law, University of Oklahoma College of Law; Lynne Marie Kohm, John Brown McCarty Professor of Family Law, Regent University School of Law; Laurel Pregnancy Center; Richard S. Myers, Professor of Law, Ave Maria School of Law; National Institute of Family and Life Advocates; Michael Stokes Paulsen, Distinguished University Chair and Professor, University of St. Thomas School of Law; Pregnancy Care Organizations Care Net; Robert J. Pushaw, James Wilson Endowed Professor of Law, Pepperdine University School of Law; Rocka-My-Baby Pregnancy Crisis Center; Rockville Pregnancy Center, Incorporated; Michael Scaperlanda, Professor of Law, Gene & Elaine Edwards Family Chair in Law, The University of Oklahoma College of Law; Gregory C. Sisk, Pio Cardinal Laghi Distinguished Chair in Law and Professor, University of St. Thomas School of Law; O. Carter Snead, Professor of Law, Notre Dame Law School; Richard Stith, Professor of Law, Valparaiso University School of Law; Timothy J. Tracey, Assistant Professor of Law, Ave Maria School of Law; Lynn D. Wardle, Bruce C. Hafen Professor of Law, J. Reuben Clark Law School, Brigham Young University; The National Legal Foundation, Amici Supporting Appellants, Taunya Lovell Banks, Jacob A. France Professor of Equality Jurisprudence, University of Maryland School of Law; C. Christopher Brown, Associate Professor Emeritus of Law, University of Maryland School of Law; Erwin Chemerinsky, Dean and Distinguished Professor of Law, University of California, Irvine School of Law; Robert J. Condlin, Professor of Law, University of Maryland School of Law; Norman Dorsen, Frederick I. and Grace A. Stokes Professor of Law, New York University School of Law; Leigh Goodmark, Associate Professor of Law, University of Baltimore School of Law; Steven P. Grossman, Dean Julius Isaacson Professor of Law, University of Baltimore School of Law; Martin Guggenheim, Fiorello LaGuardia Professor of Clinical Law, New York University School of Law; Deborah Hellman, Professor of Law and Jacob France Research Professor, University of Maryland School of Law; Margaret E. Johnson, Assistant Professor of Law, University of Baltimore School of Law; Kenneth Lasson, Professor of Law, University of Baltimore School of Law; Susan Paula Leviton, Professor of Law, University of Maryland School of Law; Sylvia A. Law, Elizabeth K. Dollard Professor of Law, Medicine and Psychiatry, New York University School of Law; Audrey McFarlane, Professor of Law, University of Baltimore School of Law; Paula A. Monopoli, Professor of Law, University of Maryland School of Law; Burt Neuborne, Inez Milholland Professor of Civil Liberties, New York University School of Law; John T. Nockleby, Professor of Law, Loyola Law School; Helen L. Norton, Associate Professor of Law, University of Colorado School of Law; David A.J. Richards, Edwin D. Webb Professor of Law, New York University School of Law; Elizabeth M. Schneider, Rose L. Hoffer Professor of Law, Brooklyn Law School; Elizabeth J. Samuels, Professor of Law, University of Baltimore School of Law; Jana B. Singer, Professor of Law, University of Maryland School of Law; Barbara Ann White, Professor of Law, University of Baltimore School of Law; Tobias Barrington Wolff, Professor of Law, University of Pennsylvania Law School; Diane L. Zimmerman, Samuel Tilden Professor of Law Emerita, New York University School of Law; International Municipal Lawyers Association; American Medical Women's Association; Maternal and Child Health Access; Physicians for Reproductive Choice and Health; Chesapeake Regional Chapter of The Society for Adolescent Health and Medicine; Robert Blum; Willard Cates, Jr.; Eric Levey; Nadine Peacock; Mark Seigel; Laurie Schwab Zabin; Eva Moore; Naral Pro-Choice Maryland; Naral Pro-Choice America; Catholics for Choice; DC Abortion Fund; Law Students for Reproductive Justice; National Abortion Federation; Maryland Chapter for the National Organization for Women; National Advocates for Pregnant Women; National Asian Pacific American Women's Forum; Planned Parenthood of Maryland; Religious Coalition for Reproductive Choice; Sistersong Women of Color Reproductive Justice Collective; Whole Woman's Health of Baltimore; Women's Law Center of Maryland, Incorporated; Diana Degette; Donna Edwards; Carolyn Maloney; Mike Quigley; Louise Slaughter; Jackie Speier; Human Rights Watch; Susan Deller Ross, Professor; Elijah Cummings, Amici Supporting Appellees.

United States Court of Appeals, Fourth Circuit.

Decided: July 3, 2013.


Attorney(s) appearing for the Case

ARGUED: Suzanne Sangree , City of Baltimore Law Department, Baltimore, Maryland, for Mayor and City Council of Baltimore, Stephanie Rawlings-Blake, Mayor of Baltimore, in her Official Capacity, and Oxiris Barbot, Baltimore City Health Commissioner. David William Kinkopf , Gallagher Evelius & Jones, LLP, Baltimore, Maryland, for Greater Baltimore Center for Pregnancy Concerns, Incorporated, St. Brigid's Roman Catholic Congregation, Incorporated, Archbishop William E. Lori. ON BRIEF: Stephanie Toti , Special Assistant City Solicitor, Center for Reproductive Rights, New York, New York, for Mayor and City Council of Baltimore, Stephanie Rawlings-Blake, Mayor of Baltimore, in her Official Capacity, and Oxiris Barbot, Baltimore City Health Commissioner. Peter J. Basile , Ferguson, Shetelich & Ballew, PA, Baltimore, Maryland; Steven G. Metzger , Gallagher Evelius & Jones, LLP, Baltimore, Maryland; Mark L. Rienzi , Columbus School of Law, Catholic University of America, Washington, D.C., for Greater Baltimore Center for Pregnancy Concerns, Incorporated, St. Brigid's Roman Catholic Congregation, Incorporated, Archbishop William E. Lori. Maria T. Vullo, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, New York, for Amici Curiae Law Professors in Support of Mayor and City Council of Baltimore, Stephanie Rawlings-Blake, Mayor of Baltimore, in her Official Capacity, and Oxiris Barbot, Baltimore City Health Commissioner. Douglas W. Baruch , Fried, Frank, Harris, Shriver & Jacobson LLP, Washington, D.C.; Janice Mac Avoy , Alexander T. Korn , Fried, Frank, Harris, Shriver & Jacobson LLP, New York, New York, for International Municipal Lawyers Association, Amicus Curiae in Support of Mayor and City Council of Baltimore, Stephanie Rawlings-Blake, Mayor of Baltimore, in her Official Capacity, and Oxiris Barbot, Baltimore City Health Commissioner. Simona G. Strauss , Melissa D. Schmidt , Simpson Thacher & Bartlett LLP, Palo Alto, California; Jayma M. Meyer , Simpson Thacher & Bartlett LLP, New York, New York, for Amici Curiae Public Health Advocates in Support of Mayor and City Council of Baltimore, Stephanie Rawlings-Blake, Mayor of Baltimore, in her Official Capacity, and Oxiris Barbot, Baltimore City Health Commissioner. Kimberly A. Parker , Zaid A. Zaid , Lesley Fredin , Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C., for Catholics for Choice, DC Abortion Fund, Donna Edwards, Maryland Chapter for the National Organization for Women, Naral Pro-Choice America, Naral Pro-Choice Maryland, National Abortion Federation, National Advocates for Pregnant Women, National Asian Pacific American Women's Forum, Planned Parenthood of Maryland, Mike Quigley, Religious Coalition for Reproductive Choice, Louise Slaughter, Jackie Speier, Whole Woman's Health of Baltimore, Women's Law Center of Maryland, Incorporated, Elijah Cummings, Amici Curiae in Support of Mayor and City Council of Baltimore, Stephanie Rawlings-Blake, Mayor of Baltimore, in her Official Capacity, and Oxiris Barbot, Baltimore City Health Commissioner. Anna R. Franzonello , Mailee R. Smith , Mary E. Harned , Denise M. Burke , Americans United for Life, Washington, D.C., for Pregnancy Care Organizations Care Net, Heartbeat International, Incorporated, National Institute of Family and Life Advocates, Rocka-My-Baby Pregnancy Crisis Center, Bowie Crofton Pregnancy Clinic, Incorporated, Care Net Pregnancy Center of Frederick, Care Net Pregnancy Center of Southern Maryland, Laurel Pregnancy Center, and Rockville Pregnancy Center, Incorporated, Amici Curiae in Support of Greater Baltimore Center for Pregnancy Concerns, Incorporated, St. Brigid's Roman Catholic Congregation, Incorporated, Archbishop William E. Lori. Colby M. May, James Matthew Henderson, Sr., Tiffany N. Barrans, American Center for Law & Justice, Washington, D.C.; Cecilia N. Heil , Erik M. Zimmerman , American Center for Law & Justice, Virginia Beach, Virginia; Carly F. Gammill , American Center for Law & Justice, Franklin, Tennessee, for American Center for Law and Justice, Amicus Curiae in Support of Greater Baltimore Center for Pregnancy Concerns, Incorporated, St. Brigid's Roman Catholic Congregation, Incorporated, Archbishop William E. Lori. Matthew S. Bowman, Alliance Defending Freedom, Washington, D.C.; Samuel B. Casey , David B. Waxman , Jubilee Campaign-Law of Life Project, Washington, D.C., for American Association of Pro-Life Obstetricians and Gynecologists, Christian Medical & Dental Associations, and Catholic Medical Association, Amici Curiae in Support of Greater Baltimore Center for Pregnancy Concerns, Incorporated, St. Brigid's Roman Catholic Congregation, Incorporated, Archbishop William E. Lori. John C. Eastman, Center for Constitutional Jurisprudence, Chapman University School of Law, Orange, California; David T. Raimer , Noel J. Francisco , Jones Day, Washington, D.C., for Amici Curiae Professors in Support of Greater Baltimore Center for Pregnancy Concerns, Incorporated, St. Brigid's Roman Catholic Congregation, Incorporated, Archbishop William E. Lori. Steven W. Fitschen, The National Legal Foundation, Virginia Beach, Virginia; John P. Tuskey , Bingham and Loughlin, P.C., Mishawaka, Indiana, for The National Legal Foundation, Amicus Curiae in Support of Greater Baltimore Center for Pregnancy Concerns, Incorporated, St. Brigid's Roman Catholic Congregation, Incorporated, Archbishop William E. Lori.

No. 11-1111 vacated and remanded, and No. 11-1185 affirmed, by published opinion. Judge KING wrote the majority opinion, in which Chief Judge TRAXLER and Judges MOTZ, DUNCAN, KEENAN, WYNN, FLOYD, and THACKER joined. Judge WILKINSON wrote a dissenting opinion. Judge NIEMEYER wrote a dissenting opinion, in which Judges WILKINSON, SHEDD, and AGEE joined.


KING, Circuit Judge:

Invoking the First Amendment, the district court fully and permanently enjoined enforcement of a City of Baltimore Ordinance requiring limited-service pregnancy centers to post disclaimers that they do not provide or make referrals for abortions or certain birth-control services. The injunction emanated from the court's award of summary judgment to plaintiff Greater Baltimore Center for Pregnancy Concerns, Incorporated, on its claim that the Ordinance...

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