Bernardo v. Planned Parenthood Federation of America, D040186.

CourtCalifornia Court of Appeals
Citation115 Cal.App.4th 322,9 Cal.Rptr.3d 197
Decision Date28 January 2004
Docket NumberNo. D040186.,No. D040866.,D040186.,D040866.
PartiesAgnes BERNARDO et al., Plaintiffs and Appellants, v. PLANNED PARENTHOOD FEDERATION OF AMERICA et al., Defendants and Respondents.

James E. McElroy and Dara Klassel, New York, NY, for Defendants and Respondents.

NARES, Acting P.J.

Agnes Bernardo, Pamela Colip and Saundra Duffy-Hawkins (collectively, Bernardo) brought suit for injunctive relief against Planned Parenthood Federation of America (PPFA) and Planned Parenthood of San Diego and Riverside Counties (PPSDRC) (together Planned Parenthood) under California's unfair competition law (Bus. & Prof.Code, § 17200 et seq.) and false advertising law (Bus. & Prof.Code, § 17500 et seq.). Bernardo alleged that PPFA's and PPSDRC's Internet Web sites ( and , respectively) contained "unlawful, unfair confusing, and misleading statements/advertisements" that caused women to make critical health care decisions without full, complete, and accurate information about (1) the safety of abortion, (2) the safety of abortion vis-a-vis childbirth, and (3) the scientific/medical literature that Bernardo claims establishes a link between induced abortion and breast cancer (hereafter sometimes referred to as the ABC link).

Bernardo sought two types of injunctive relief: (1) an injunction restraining Planned Parenthood from publishing its statements that abortion is safe or safer than childbirth and its position that the weight of credible medical research has failed to establish a link between induced abortion and breast cancer; and (2) a mandatory injunction requiring Planned Parenthood to provide to all of its former and prospective abortion patients information supporting Bernardo's position that medical research has established the existence of the claimed ABC link.

Planned Parenthood filed a special motion to strike Bernardo's complaint under Code of Civil Procedure1 section 425.16, California's anti-SLAPP (strategic lawsuits against public participation) statute (hereafter referred to as section 425.16 or the anti-SLAPP statute), which was specifically enacted to provide both a summary disposition and mandatory attorney fees and costs to prevailing defendants in such actions.2 Planned Parenthood argued that Bernardo's action was a strategic lawsuit against public participation (SLAPP) prohibited by California's anti-SLAPP statute.

The court found that Bernardo's lawsuit was a SLAPP, granted Planned Parenthood's motion, and dismissed the action. The court awarded reasonable attorney fees to Planned Parenthood in the amount of $77,835.25 under the mandatory attorney fees provision of section 425.16, subdivision (c) (hereafter section 425.16(c)).

Bernardo has filed two appeals, which have been consolidated for purposes of disposition. In case No. D040186, Bernardo appeals the court's order dismissing her action as a SLAPP under section 425.16. Bernardo contends that Planned Parenthood's Web site statements constitute commercial speech that may properly be regulated under Business and Professions Code sections 17200 and 17500 and that the court erred when it granted Planned Parenthood's section 425.16 motion to strike because it failed to properly apply the "minimal merit" screening standard provided by the anti-SLAPP statute. In the alternative, Bernardo contends that if the court correctly applied section 425.16 that statute is unconstitutional because (1) it impermissibly chills Bernardo's First Amendment right to petition the government for redress of grievances, which encompasses the right to access the courts by filing litigation, and (2) it violates Bernardo's due process rights because "the `reasonable probability of success on the merits' standard [under section 425.16] is meaningless in practice."

In her second appeal, case No. D040866, Bernardo seeks reversal of the court's order awarding attorney fees to Planned Parenthood in the amount of $77,835.25 under section 425.16(c). Bernardo contends that section 425.16(c) is unconstitutional on its face and as applied, asserting the attorney fees award levied against her is a "fine," a "draconian penalty" or "strict liability penalty," and an "item of damages" that violates her constitutional rights to petition the government for redress of grievances and to access the courts by filing litigation, as well as her constitutional rights to due process and equal protection of the laws. We reject all of Bernardo's contentions. Accordingly, we affirm the orders.


PPFA is a national nonprofit charitable organization. According to its published mission statement, PPFA believes in "the fundamental right of each individual ... to manage his or her fertility." It also believes in voluntary "reproductive self-determination," and preservation of an individual's right to privacy. Based on these beliefs, PPFA's mission is to (1) "provide comprehensive reproductive and complementary health care services in settings which preserve and protect the essential privacy and rights of each individual"; (2) "advocate public policies which guarantee these rights and ensure access to such services"; (3) "provide educational programs which enhance understanding of individual and social implications of human sexuality"; and (4) "promote research and the advancement of technology in reproductive health care and encourage understanding of their inherent bioethical, behavioral, and social implications."

PPFA has also published numerous policy statements indicating that it is the policy of PPFA to "assure that all individuals have the freedom to make reproductive decisions"; to promote "access to information and services related to sexuality, reproduction, methods of contraception, fertility control, and parenthood"; "ensure that women have the right to seek and obtain medically safe, legal abortions under dignified conditions and at reasonable cost"; provide "information on the nature, consequences, and risks of the [abortion] procedure, and counseling on the alternatives available to women so as to assure an informed and responsible decision concerning the continuation or termination of pregnancy"; "support[ ] a range of activities designed to reduce adolescent pregnancy and childbearing"; and "advance understanding of the interrelationship between population growth and the quality of life."

PPFA does not itself provide health care services. However, its 127 member affiliates do provide such services annually to nearly 4 million people at 875 clinics. In 1999, those clinics served communities in the District of Columbia and every state except Hawaii, North Dakota and Mississippi. The clinics (hereafter also referred to as health centers or Planned Parenthood centers) adhere to national health standards and provide comprehensive reproductive health care services, including pregnancy tests, birth control and counseling, testing and treatment for sexually transmitted infections, and breast examinations. Some of PPFA's affiliates, including PPSDRC, provide abortion services.

The Planned Parenthood centers also provide educational programs in a variety of settings, from universities and social service agencies to religious institutions and civic organizations. The programs focus on numerous topics, such as teenage pregnancy and puberty education, contraception and family planning, sexually transmitted infections, parent-child communication, women's health, and sexual orientation.

In the 1990's, PPFA reported total annual revenues of around $400 to $500 million. For the year ending June 30, 2000, total revenues were $627 million, with clinic revenue accounting for 35 percent.

B. PPFA's Web site and "Fact Sheets"

PPFA maintains an Internet Web site (PPFA's Web site) at . PPFA assists the public in contacting its affiliates' health centers by providing on its Web site an interactive dialogue box in which visitors can type in their zip codes and be linked to the Web sites of the health centers closest to them. Once the visitor to PPFA's Web site has been linked to the Web site of a PPFA affiliate, such as PPSDRC, he or she may access a wide array of information on public affairs and health issues, as well as information about specific services the affiliate provides. PPFA's Web site also provides a toll-free telephone number that the Web site visitor may call to ask medical questions or to schedule an appointment with "the nearest Planned Parenthood center."

PPFA publishes on its Web site various "fact sheets" on reproductive health and public affairs issues, including four containing statements that Bernardo sought to enjoin in this matter: (1) "Anti-choice Claims About Abortion and Breast Cancer" (the Anti-Choice Claims Web page); (2) "Choosing Abortion — Questions and Answers" (the Choosing Abortion Web page); (3) "Surgical Abortion — Questions & Answers" (the Surgical Abortion Web page); and (4) "Medical and Social Health Benefits Since Abortion Was Made Legal in the U.S." (the Medical and Social Health Benefits Web page).

PPFA's Anti-Choice Claims Web page stated PPFA's position that the ABC link is a "theory [that] has not been borne out by research," and the principal promoters of this theory oppose abortion. It also explained that "[t]he theory linking pregnancy termination and breast cancer is based on the hormonal disruption that occurs when a woman's pregnancy is interrupted. Pregnancy initiates a surge of sex hormones (estrogen, progesterone, and prolactin), which leads to differentiation of the cells in the breast glands in preparation for lactation.... Adherents of this...

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