A Woman's Friend Pregnancy Resource Clinic v. Harris

• Decision Date: 18 December 2015
• Docket Number: No. 2:15–cv–02122–KJM–AC,2:15–cv–02122–KJM–AC
• Citation: 153 F.Supp.3d 1168
• Court: U.S. District Court — Eastern District of California
• Parties: A Woman's Friend Pregnancy Resource Clinic, Crisis Pregnancy Center of Northern California, Alternatives Women's Center, Plaintiffs, v. Kamala Harris, Attorney General of the State of California, In Her Official Capacity, Defendant.

153 F.Supp.3d 1168

A Woman's Friend Pregnancy Resource Clinic, Crisis Pregnancy Center of Northern California, Alternatives Women's Center, Plaintiffs,

v.Kamala Harris, Attorney General of the State of California, In Her Official Capacity, Defendant.

No. 2:15–cv–02122–KJM–AC

United States District Court, E.D. California.

Signed December 18, 2015

Filed December 21, 2015

Kevin Trent Snider, Matthew Brown McReynolds, Sacramento, CA, for Plaintiffs.

Noreen Patricia Skelly, Marc A. LeForestier, Office of the Attorney General, Sacramento, CA, for Defendant.

ORDER

KIMBERLY J. MUELLER

, UNITED STATES DISTRICT JUDGE

Crisis pregnancy centers devoted to providing alternatives to abortion and discouraging abortion, also known as CPCs, have been operating in this country for several decades at least. Recently, the practices of some CPCs have prompted several state and municipal legislative bodies to adopt regulations governing the information provided to women seeking reproductive care. The changing landscape effected by implementation of the federal Affordable Care Act also has provided a backdrop to state and local legislative action. In the last year, the California Legislature adopted a provision known as the FACT Act, AB 775, which governs all clinics providing family planning or pregnancy-related services, including CPCs. In passing AB 775, the Legislature articulated its intent to supplement its own prior efforts to advise women of the state's reproductive health programs. As applicable here, the new law, scheduled to take effect January 1, 2016, requires licensed facilities that meet certain criteria to provide a notice to clients regarding the availability of free or low-cost public family planning services. Three CPCs operating in this judicial district challenge AB 775 as unconstitutional, in violation of their First Amendment Free Speech and Free Exercise rights. In the pending motion for preliminary injunction they seek to block the new law's taking effect pending full litigation of this action. Having carefully considered the parties' briefs, the parties' arguments at a specially set hearing, and the applicable law, the court DENIES plaintiffs' motion for the reasons set forth below.

I. PROCEDURAL HISTORY

Plaintiffs filed this action in this court on October 10, 2015. Compl., ECF No. 1. Before the State answered, plaintiffs amended the complaint. First Am. Compl. (FAC), ECF No. 4. The amended complaint alleges the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (the Act) is unconstitutional both on its face and as applied. FAC ¶ 4. It includes two claims: (1) the Act is unconstitutional because it violates plaintiffs' rights to freedom of speech under the First Amendment to the United States Constitution, id . ¶¶ 44–47; and (2) the Act is unconstitutional because it violates plaintiffs' rights to free exercise of religion under the same Amendment, id . ¶¶ 48–51. Plaintiffs request declaratory judgment that the Act is unconstitutional on its face and as applied, preliminary and permanent injunctive relief prohibiting enforcement of the Act, attorneys' fees and costs, and all other appropriate relief.

The State answered on November 9, 2015. ECF No. 7. It denies the Act is unconstitutional, Answer ¶¶ 44–51, and it advances one affirmative defense: It asserts the action is barred because the claims are not ripe for review, id . at 9.

Plaintiffs filed this motion for a preliminary injunction on November 13, 2015, Mot. Prelim. Injunction, ECF No. 8; Mem. P. & A., ECF No. 9. At hearing, plaintiffs clarified their motion is based on an as-applied challenge only. The State opposed the motion on December 4, 2015, ECF No. 16, and plaintiffs replied on December 11, 2015, ECF No. 17. The court held a hearing on December 18, 2015. Kevin Snider and Matthew McReynolds appeared for plaintiffs, and Noreen Skelly and Marc LaForestier appeared on behalf of the State.

II. THE ACT

A. Text of Statute

California Assembly Bill (AB) 775 enacts new sections of the California Health and Safety Code, comprising “the Reproductive FACT (Freedom, Accountability, Comprehensive Care, and Transparency) Act or Reproductive FACT Act.” Cal. Health & Safety Code § 123470

. The Act provides in pertinent part, that a

“licensed covered facility” means a facility licensed under Section 1204 or an intermittent clinic operating under a primary care clinic pursuant to subdivision (h) of Section 1206, whose primary purpose is providing family planning or pregnancy-related services, and that satisfies two or more of the following:

(1) The facility offers obstetric ultrasounds, obstetric sonograms

, or prenatal care to pregnant women.

(2) The facility provides, or offers counseling about, contraception or contraceptive methods.

(3) The facility offers pregnancy testing or pregnancy diagnosis.

(4) The facility advertises or solicits patrons with offers to provide prenatal sonography , pregnancy tests, or pregnancy options counseling.

(5) The facility offers abortion services.

(6) The facility has staff or volunteers who collect health information from clients.

Id . § 123471. A facility covered by the Act is required to disseminate a notice to clients:

(a) A licensed covered facility shall disseminate to clients on site the following notice in English and in the primary threshold languages for Medi-Cal beneficiaries as determined by the State Department of Health Care Services for the county in which the facility is located.

(1) The notice shall state:

“California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number].”

(2) The information shall be disclosed in one of the following ways:

(A) A public notice posted in a conspicuous place where individuals wait that may be easily read by those seeking services from the facility. The notice shall be at least 8.5 inches by 11 inches and written in no less than 22-point type.

(B) A printed notice distributed to all clients in no less than 14-point type. ^[1]

(C) A digital notice distributed to all clients that can be read at the time of check-in or arrival, in the same point type as other digital disclosures. A printed notice as described in subparagraph (B) shall be available for all clients who cannot or do not wish to receive the information in a digital format.

(3) The notice may be combined with other mandated disclosures.

Id . § 123472.

The law imposes civil penalties for failure to comply with the notice requirements:

(a) Covered facilities that fail to comply with the requirements of this article are liable for a civil penalty of five hundred dollars ($500) for a first offense and one thousand dollars ($1,000) for each subsequent offense. The Attorney General, city attorney, or county counsel may bring an action to impose a civil penalty pursuant to this section after doing both of the following:

(1) Providing the covered facility with reasonable notice of noncompliance, which informs the facility that it is subject to a civil penalty if it does not correct the violation within 30 days from the date the notice is sent to the facility.

(2) Verifying that the violation was not corrected within the 30-day period described in paragraph (1).

(b) The civil penalty shall be deposited into the General Fund if the action is brought by the Attorney General. If the action is brought by a city attorney, the civil penalty shall be paid to the treasurer of the city in which the judgment is entered. If the action is brought by a county counsel, the civil penalty shall be paid to the treasurer of the county in which the judgment is entered.

Id . § 123473.

The Act exempts two types of facilities from the new regulation:

(1) A clinic directly conducted, maintained, or operated by the United States or any of its departments, officers, or agencies.

(2) A licensed primary care clinic that is enrolled as a Medi-Cal provider and a provider in the Family Planning, Access, Care, and Treatment Program.

Id . § 123471.

B. Legislative History and Purpose²

Federal health care policy provides a backdrop to the state law at issue here. In 2010, Congress passed the federal Patient Protection and Affordable Care Act (ACA), a law which made millions of Californians, 53 percent of them women, newly eligible for Medi-Cal. Hearing on AB 775 Before the Assembly Comm. on Health , 2015–2016 Sess. 2 (Cal. 2015), ECF No. 11-2 (Pls.' Ex. 2). The ACA allowed California to establish or expand several programs that provide reproductive health care and counseling to low-income women. AB 775 § 1.

In California, more than 700,000 women become pregnant every year. AB 775 § 1. Of those pregnancies, approximately one-half are unintended. Id . In 2010, 64.3 percent of unplanned births in California were publicly funded. Id . By 2012, more than 2.6 million California women were in need of publicly funded family planning services. Id . At the moment they learn they are pregnant, thousands of women remain unaware of the California programs available that provide them with contraception, health education and counseling, family planning, prenatal care, abortion, or delivery. Id .

In order to ensure California residents can make their personal reproductive health care decisions in an informed manner, the California Legislature passed the Act. As noted above, the Act requires licensed clinics that give family planning or pregnancy-related services to provide a notice to consumers regarding their reproductive rights and the availability of such services in California.³ Id. But the state Legislature identified a need to supplement its own efforts to advise women of the state's reproductive health programs, particularly because pregnancy decisions are time sensitive. AB 775 § 1. The Act was seen as the ...