First Resort Inc. v. Herrera

Summary

First Resort Inc. was a limited services pregnancy center (LSPC). Although it had a clear anti-abortion agenda and did not actually offer abortion-related services or refer clients to abortion providers, its online advertising made it appear as if it did provide abortion-related services. First Resort challenged the constitutionality of a San Francisco ordinance designed to protect indigent women experiencing unexpected pregnancies from the harms posed by false or misleading advertising by LSPCs. The district court denied First Resort’s motion for summary judgment and granted San Francisco’s cross-motion for summary judgment, holding that the ordinance was not unconstitutional and was not preempted by state law.

Affirmed. San Francisco’s Pregnancy Information Disclosure and Protection Ordinance “prohibit[s] [LSPCs] from making false or misleading statements to the public about pregnancy-related services the centers offer or perform.” State law conflicts with or preempts local law if the local law “duplicates, contradicts, or enters an area fully occupied by general law ….” Here, First Resort argued, among other things, that the ordinance was duplicative of California’s false advertising law (FAL) and therefore preempted by state law. However, the duplication prong of the state preemption test had largely been confined to penal ordinances. Because the ordinance was civil and contained no criminal provisions or penalties so as to raise double-jeopardy concerns inherent in duplicative local and state criminal laws, First Resort failed to show that enforcing the ordinance would interfere with enforcing state law. Thus, for this and other reasons, this court affirmed the district court.

Opinion by Judge Dorothy W. Nelson; Concurrence by Judge Tashima.

— Maeda Riaz