Anti-Abortion Counseling Law Constitutional, ACLU Says

The American Civil Liberties Union has concluded after a legal review that a New York congresswoman’s proposal to regulate advertising by anti-abortion counseling centers is likely constitutional, officials with the civil liberties organization said yesterday.However, at a national board meeting last month, ACLU leaders agreed, in essence, to shelve their support for the measure, in part because the legislation was deemed to have no chance of passage, board members said. The ACLU’s board referred some of the issues raised by the legislation to a committee already studying the organization’s stance on government regulation of commercial speech.“We said that the bill, on its face, was not an unconstitutional abridgement of free speech since the offer of abortion services by people who don’t provide such services is not protected,” one of four lawyers who serve as general counsel to the ACLU’s board, Vivian Berger, told The New York Sun yesterday.The board’s legal advisers, who also include a law professor at Rutgers, Frank Askin; a professor at Brooklyn Law School, Susan Herman, and a Charlotte, N.C., attorney, James Ferguson II, were unanimous in their conclusion that the legislation is constitutional, board members said.The bill to subject advertising by so-called crisis pregnancy centers to regulation by the Federal Trade Commission was introduced in March by Rep. Carolyn Maloney, a Democrat. The director of the ACLU’s Washington office, Caroline Frederickson, spoke at a press conference announcing the legislation and the organization issued a press release praising the proposal.After the Sun reported that some civil libertarians and constitutional scholars viewed the legislation as unconstitutional, unwise, or both, the ACLU quietly deleted the press release from its Web site and launched a review of the free speech issues raised by the bill.Ms. Maloney and other abortion rights advocates contend that some counseling centers run by anti-abortion groups use various tactics to trick women into thinking the centers offer abortions.Ms. Berger said she considered the questions about the constitutionality of the bill “genuine” and understandable in light of the ACLU’s traditional stance in favor of robust free speech rights. “It’s certainly true that it isn’t usually our bread and butter to take a position that affirmatively supports legislation that even arguably could be viewed as impinging on speech, but, on the other hand, we have a very strong commitment to abortion rights,” she said.One legal scholar, Eugene Volokh of the University of California at Los Angeles, told the Sun that the legislation runs afoul of the First Amendment because the bill encompasses not just abortions, which are usually performed for money, but “abortion referrals,” which might include free counseling or advice.Courts usually permit regulation of deceptive commercial pitches, but have rarely allowed government controls on deceptive speech that does not involve commerce.Ms. Berger acknowledged that the effort to regulate referrals is more problematic than other aspects of the legislation. “Reasonable minds could disagree on that,” she said. “Obviously, the moment you talk about a referral, that is speech as opposed to a surgical procedure.”Several board members said yesterday that at the April 23 meeting, the ACLU’s executive director, Anthony Romero, expressed displeasure with the fact that some board members spoke publicly about their concerns about the legislation. According to witnesses, Mr. Romero also deprecated the Sun and said there was no need for the ACLU to craft a new statement on the legislation because the Sun was the only news outlet to report on the controversy and the measure had no chance of passage.A spokesman for the ACLU, Emily Whitfield, said Mr. Romero was unavailable for an interview yesterday.“Most people were satisfied with the outcome and the debate that ensued,” one board member, John Brittain, said before referring a reporter to the ACLU press office. “There was a general opinion that the staff had not done anything wrong.”However, a board member who sharply criticized the legislation, Wendy Kaminer, said, “I’m very disappointed that the ACLU is not withdrawing its support for a bill that would allow the government to restrict what is, at least arguably, political speech.”While the ACLU’s Web site remains free of any mention of the bill,the ACLU recently advised Ms. Maloney’s office that the organization remains supportive of the legislation, according to a person briefed on the discussions.Asked when the ACLU might articulate a new stand on the bill, Ms. Whitfield said, “The board is continuing to review its policy on commercial speech, and we will make a decision about the statement once the commercial speech committee reports and the national board has a chance to act on a revised policy.”

Anti-Abortion Counseling Law Constitutional, ACLU Says

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