California crisis pregnancy centers (CPCs) must tell patients about the availability of birth control and abortion services, a federal judge said Tuesday, rejecting a court motion to temporarily block a state disclosure law.
Judge John A. Houston with the Southern District Court of California held that the “state clearly has a legitimate interest in ensuring pregnant woman are fully advised of their rights and treatment options when making reproductive health care decisions and the required disclosure is undeniably rationally related to that interest.”
Attorneys for two Southern California CPCs and the National Institute of Family and Life Advocates had asked the judge to temporarily block the state’s Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act, which went into effect January 1. The act, they argued in court filings, violated their clients’ freedom of speech and free exercise of religion, forcing the centers “to recite government messages promoting abortion.”
The lawsuit is the fourth challenge to the new law, which regulates centers “whose primary purpose is providing pregnancy-related services,” including CPCs, requiring the facilities to post a short public notice about access to abortion and birth control. Unlicensed centers are required to post a notice that they are not licensed medical facilities.
Concerns over CPCs dispensing misinformation to vulnerable patients prompted the law, passed last year by California’s Democratic-majority legislature. A recent California undercover investigation found that CPCs, generally staffed by anti-choice activists, discourage patients from having abortions by routinely lying to women about their options. Other investigations found that CPCs convince women to remain pregnant with false promises of financial aid and housing.
With Tuesday’s decision, three federal district courts and one state court have refused to block the law ahead of a trial.
Matt Bowman, senior counsel for Alliance Defending Freedom, an Arizona-based firm that has argued for anti-choice policies, said in a statement that California CPCs shouldn’t be “forced to promote abortion.”
“This law requires licensed medical centers, and also non-profit unlicensed centers, all of which provide free help to pregnant women, to recite a government message under threat of severe penalties, and is a clear violation of constitutionally protected First Amendment freedoms,” Bowman said in an email statement sent Tuesday to Rewire. “Courts around the country have already rightly struck down these types of laws.”
Public information laws about reproductive health have been met with mixed success in court. Appellate courts in recent years have struck down ordinances in New York City and Baltimore that required patients to be informed about reproductive health services. A San Francisco ordinance requiring pregnancy-related centers to tell the truth in advertisements survived a federal court challenge last year.
Operators of CPCs have said they will close down or refuse to comply with what they describe as a “bully bill.”
“I will not post that notice in our clinic,” Scott Scharpen, a party to one of four challenges to the law, said in a statement late last year. “I would rather close the clinic than post that notice. Now, by law, we are required to provide referral information to a woman for services that we find morally and ethically objectionable, namely abortion.”
Josh McClure, the executive director of East County Pregnancy Care Clinic, recently told the New York Times he won’t comply.
“I don’t want to put up a sign telling you where you can go for an abortion,” said McClure, whose clinic is also a plaintiff. “The sign is not up here now because it’s unconstitutional.”
Signed by Gov. Jerry Brown (D) in October, the Reproductive FACT Act, or AB 775, was enacted to regulate pregnancy-related centers, including the nearly 350 CPCs that operate in the Golden State, according to a directory by the CPC umbrella group Heartbeat International.
Groups that fail to comply will face civil penalties up to $1,000.
Backers of AB 775 cited a recent undercover report by NARAL Pro-Choice California that found CPCs routinely lie about the physical and psychological risks of ending a pregnancy and delay a patient until abortion is no longer an option.
Amy Everitt, state director of NARAL Pro-Choice California, said in an emailed statement that “California women deserve to get accurate information about reproductive health options free of interference, coercion or shame. It tells you all you need to know about Alliance Defending Freedom’s anti-choice agenda that they are suing to keep basic healthcare information from women.”
Federal judges in the eastern and northern districts of California have rejected motions to block the law, as Rewirereported in December.
Judge Kimberly Mueller of the U.S. District Court for the Eastern District wrote in a 59-page decision that “enjoining the act would interfere with the public interest regarding the health of state residents.”
Judge Jeffrey S. White in the U.S. District Court for the Northern District held that CPCs engage in commercial or professional speech, which is subject to a lower degree of scrutiny than individual speech.
The four challenges to the law now await court hearings.
A conservative legal advocacy organization has asked the Roberts Court to review a federal appeals court decision reinstating portions of New York City's truth-in-advertising law regulating crisis pregnancy centers.
The law, first passed in 2011, places three specific disclosure requirements on crisis pregnancy centers: CPCs must disclose whether or not they have a licensed medical provider on staff who provides or directly supervises services at the CPC (a “Status Disclosure”); they must disclose that the New York City Department of Health encourages women who are or may be pregnant to consult with a licensed provider (the “Government Message”); and they must disclose to clients whether or not they provide referrals for abortions, emergency contraception, or prenatal care (the “Services Disclosure”). According to the law, these disclosures must be provided at entrances and waiting rooms, in any advertising done by the CPC, and during telephone conversations with potential clients. Failure to follow the disclosure requirements results in civil fines and the possibility of the facility closing for repeated violations.
Just shortly after New York City passed the law, conservative legal advocacy groups sued to block it on behalf of several religious nonprofits operating CPCs in the area, arguing it violated the First Amendment. In June 2011, a lower court preliminary enjoined the law, temporarily preventing it from taking effect. Attorneys for the city appealed, and in January 2014 a panel of judges on the U.S. Court of Appeals for the Second Circuit reversed a portion of that preliminary injunction and reinstated the “Status Disclosure” portion. However, the federal appeals court did not reinstate the “Services Disclosure” or “Government Message” portions of the law.
The petition filed by the legal advocacy group asks the Roberts Court to reviewthe Second Circuit’s decision to reinstate the “Status Disclosure,” as well as the court’s conclusion that the law’s definition of what organizations constitute crisis pregnancy centers was not unconstitutionally vague.
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There’s no guarantee the Supreme Court will grant review of the case. The Second Circuit’s ruling is consistent with other federal appeals courts that have looked at the issue, including the U.S. Court of Appeals for the Fourth Circuit. However, given the other First Amendment cases before the Supreme Court that involve a clash between reproductive rights and the First Amendment, such as the legal challenges to the contraception benefit in the Affordable Care Act and challenges to buffer zones around abortion clinics, conservatives on the Roberts Court have shown a willingness to entertain First Amendment claims by religious conservatives that seek to roll back women’s fundamental rights in the name of religious liberty and free speech.
“This is a critically important case that focuses on the constitutionally-protected rights of pro-life advocates,” said Jay Sekulow, chief counsel of the American Center for Law and Justice, in a statement. “To permit a law to remain in place that imposes burdensome requirements on crisis pregnancy centers is not only unacceptable but unconstitutional as well. We’re hopeful the high court will take the case and put an end to the efforts to silence pro-life pregnancy centers.”
It could be months before the Supreme Court announces whether or not it will review the case.