ACLU Prepared to Mount Legal Challenge if Pro-Choice License Bill Fails to Pass as Introduced

Affiliate: ACLU of Virginia
March 10, 2010 12:00 am

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Civil Liberties Group Says House and Senate Conferees Must Restore Planned Parenthood as Recipient of Revenues


Richmond, VA – The ACLU of Virginia is urging House and Senate conferees to restore Planned Parenthood as the recipient of revenues to be generated from the sale of a pro-choice specialty license plate under consideration by the General Assembly.

The plate, displaying the phrase Trust Women, Respect Choice, counters a law passed in 2009 authorizing a Choose Life license plate. Under recent court decisions holding that specialty license plates are a public forum in which viewpoint discrimination is prohibited, the General Assembly is required to pass a pro-choice plate once an anti-choice plate has been enacted.

Although the Trust Women plate bill has passed both the House and Senate, the recipient of revenues generated by the sale of the plate has become a sticking point. Planned Parenthood, as required by Virginia law, gathered 350 pre-paid applications for the plate and enlisted legislators to introduce the Trust Women bill in the House and Senate, with revenues to be directed to Planned Parenthood. But the House amended the bill to instead direct funds to the Virginia Pregnant Women Support Fund. The conferees must now decide which organization will receive the revenues from the plate and then refer the agreed-upon bill to the House and Senate for consideration.

The ACLU has informed conferees that the General Assembly must support a bill directing funds to Planned Parenthood or face a lawsuit.

“Removing Planned Parenthood as the revenue recipient has three possible consequences, all of which violate the right of free speech,” said ACLU of Virginia Executive Director Kent Willis. “It could cause the bill to fail altogether. The bill could pass, but the license plate will not be produced because there are no pre-paid applications for the non-Planned Parenthood bill. The bill could pass, but the First Amendment rights of individuals who purchased the plate expecting their money to go to Planned Parenthood will be violated.”

“This kind of mess is precisely why we have been telling the General Assembly for years to get out of the business of voting on specialty license plates and instead turn the whole process over to DMV,” added Willis.

The ACLU memo sent to House and Senate conferees follows.

ACLU of Virginia
530 E. Main Street Suite 310
Richmond, Virginia 23219
(804) 644-8080

To: House and Senate Conferees on SB 18
From: Hope R. Amezquita, Legislative Counsel
Date: March 10, 2010

RE: SB 18, Pro-Choice Specialty License Plate

The ACLU of Virginia urges the House and Senate conferees to approve the version of SB 18, authorizing a “Trust Women, Respect Choice” license plate, originally passed by the Senate. That is, the bill should designate the Virginia League for Planned Parenthood Fund as the recipient of the revenues. The alternate version of the bill, designating the Virginia Pregnant Women Support Fund as the recipient, violates the First Amendment, and the ACLU of Virginia is prepared to challenge it in court.

The designation of the Virginia Pregnant Women Support Fund is unconstitutional for at least two reasons:

Failure to Designate Planned Parenthood as Surcharge Recipient Would Likely Thwart Production of Pro-Choice License Plate

The Fourth Circuit has made clear that the state may not produce a pro-life license plate, such as the “Choose Life” plate already in existence, without also offering a pro-choice plate. By designating the Virginia Pregnant Women Support Fund as the recipient, the General Assembly would impose a near insurmountable burden to the production of the “Trust Women, Respect Choice” plate.

Over 350 applications for the pro-choice plate have been submitted to Planned Parenthood, with the understanding that revenue will be distributed to Planned Parenthood. If a different recipient is named, these applications would be nullified, and there is little likelihood that the 350 applications required by law could be garnered. Production of the pro-choice license plate would be effectively thwarted, leaving only the pro-life view represented in the license plate forum, in violation of the First Amendment.

Failure to Designate Planned Parenthood Would Impermissibly Discriminate against the Pro-Choice Viewpoint

Designation of the Virginia Pregnant Women Support Fund would discriminate against applicants for the pro-choice plate based on their viewpoint, by robbing them of their choice of beneficiary. When pro-life individuals wanted a license plate, they chose, through their submission of pre-paid applications, to use it to support Heartbeat International. Pro-choice individuals chose Planned Parenthood, but would be frustrated in that choice if the funding recipient were changed. The pro-choice applicants would therefore be denied a benefit afforded to the pro-choice applicants — that benefit being their own choice of charity. Such differential treatment of two groups based on their viewpoint violates the First Amendment.

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