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Tuesday, August 21, 2012

Fourth Circuit rehearing on crisis pregnancy centers

The Fourth Circuit last week granted rehearing en banc in a series of cases challenging municipal regulations requiring "crisis pregnancy centers" to post disclaimers identifying all the reproductive services (namely birth control and abortion or referrals for those services) that they do not provide. I wrote about the panel decision and Jennifer Keighly sharply criticized it. The core First Amendment issue is whether this is regulation of commercial speech or of a regulated profession in which disclosure obligations are generally permissible, although I believe these cases provide a nice compare-and-contrast with the litigation over mandatory ultrasound laws. There also are some underlying procedural problems involving converting 12(b)(6) to summary judgment and refusal to provide an opportunity for discovery.

No one wrote to concur or dissent from the grant of rehearing, not even from the panel members, so we do not know what anyone is thinking right now.

Posted by Howard Wasserman on August 21, 2012 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


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