Nat'l Inst. of Family & Life Advocates v. Harris

• Citation: 839 F.3d 823
• Decision Date: 14 October 2016
• Docket Number: No. 16-55249,16-55249
• Parties: National Institute of Family and Life Advocates, a Virginia corporation, DBA NIFLA ; Pregnancy Care Center, a California corporation, DBA Pregnancy Care Clinic; Fallbrook Pregnancy Resource Center, a California corporation, Plaintiffs–Appellants, v. Kamala Harris, in her official capacity as Attorney General for the State of California; Thomas Montgomery, in his official capacity as County Counsel for San Diego County; Morgan Foley, in his official capacity as City Attorney for the City of El Cajon, CA; Edmund G. Brown, Jr., in his official capacity as Governor of the State of California, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

839 F.3d 823

National Institute of Family and Life Advocates, a Virginia corporation, DBA NIFLA ; Pregnancy Care Center, a California corporation, DBA Pregnancy Care Clinic; Fallbrook Pregnancy Resource Center, a California corporation, Plaintiffs–Appellants,

v.Kamala Harris, in her official capacity as Attorney General for the State of California; Thomas Montgomery, in his official capacity as County Counsel for San Diego County; Morgan Foley, in his official capacity as City Attorney for the City of El Cajon, CA; Edmund G. Brown, Jr., in his official capacity as Governor of the State of California, Defendants–Appellees.

No. 16-55249

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 14, 2016, San Francisco, California

Filed October 14, 2016

Matthew Bowman (argued) and David A. Cortman, Alliance Defending Freedom, Washington, D.C.; Dean R. Broyles, National Center for Law and Policy, Escondido, California; Kristen K. Waggoner, Kevin H. Theriot, and Elissa M. Graves, Alliance Defending Freedom, Scottsdale, Arizona; Anne O'Connor, National Institute of Family and Life Advocates, Fredericksburg, Virginia; for Plaintiffs–Appellants.

Jonathan M. Eisenberg (argued), Office of the Attorney General, Los Angeles, California, for Defendants–Appellees Kamala Harris and Edmund G. Brown, Jr.

Thomas D. Bunton (argued), Senior Deputy; Thomas E. Montgomery, County Counsel; Office of County Counsel, San Diego, California; for Defendant–Appellee Thomas Montgomery.

Carrie L. Mitchell, McDougal Love Eckis Boehmer & Foley, La Mesa, California, for Defendant–Appellee Morgan Foley.

Deborah J. Dewart, Swansboro, North Carolina; James L. Hirsen, Anaheim Hills, California; for Amicus Curiae Justice and Freedom Fund.

Kristen Law Sagafi and Martin D. Quiñones, Tycko & Zavareei LLP, Oakland, California, for Amicus Curiae Physicians for Reproductive Health.

Priscilla Joyce Smith, Brooklyn, New York, for Amicus Curiae Information Society Project at Yale Law School.

Before: Dorothy W. Nelson, A. Wallace Tashima, and John B. Owens, Circuit Judges.

OPINION

D.W. NELSON

, Senior Circuit Judge:

The National Institute of Family and Life Advocates, et al. appeal from the district court's denial of their motion for a preliminary injunction to prevent the enforcement of the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (the FACT Act or the Act). The Act requires that licensed pregnancy-related clinics disseminate a notice stating the existence of publicly-funded family-planning services, including contraception and abortion. The Act also requires that unlicensed clinics disseminate a notice stating that they are not licensed by the State of California. Appellants allege that the Act violates their fundamental rights, including their First Amendment guarantees to free speech and the free exercise of religion.

We affirm the district court's denial of Appellants' motion for a preliminary injunction. For the free speech claim, we conclude that the proper level of scrutiny to apply to the Act's regulation of licensed clinics is intermediate scrutiny, which it survives. With respect to unlicensed clinics, we conclude that the Act survives any level of scrutiny. For the free exercise claim, we conclude that the Act is a neutral law of general applicability, and that it survives rational basis review. Appellants, therefore, are unable to show the “most important” factor under Winter v. Natural Resources Defense Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)

: likelihood of success on the merits. Garcia v. Google, Inc. , 786 F.3d 733, 740 (9th Cir. 2015) (en banc).

BACKGROUND

I. The FACT Act

The FACT Act was created for the stated purpose of ensuring that “[a]ll California women, regardless of income, ... have access to reproductive health services.” Assem. Bill No. 775 § 1(a). It was enacted after the California Legislature found that a great number of California women were unaware of the existence of state-sponsored healthcare programs. See id. at § 1(a)-(c). These programs, which expanded under the Patient Protection and Affordable Care Act to include millions of California women, provide “low-income women ... immediate access to free or low-cost comprehensive family planning services and pregnancy-related care.” Id. at § 1(c); see also Assem. Comm. on Health, Analysis of Assembly Bill No. 775. Specifically, the Legislature found that:

Millions of California women are in need of publicly funded family planning services, contraception services and education, abortion services, and prenatal care and delivery. In 2012, more than 2.6 million California women were in need of publicly funded family planning services. More than 700,000 California women become pregnant every year and one-half of these pregnancies are unintended. In 2010, 64.3 percent of unplanned births in California were publicly funded. Yet, at the moment they learn that they are pregnant, thousands of women remain unaware of the public programs available to provide them with contraception, health education and counseling, family planning, prenatal care, abortion, or delivery.

Id. at § 1(b).

The Legislature also found that the ability of California women to receive accurate information about their reproductive rights, and to exercise those rights, is hindered by the existence of crisis pregnancy centers (CPCs). CPCs “pose as full-service women's health clinics, but aim to discourage and prevent women from seeking abortions” in order to fulfill their goal of “interfer[ing] with women's ability to be fully informed and exercise their reproductive rights.” Assem. Comm. on Health, Analysis of Assembly Bill No. 775 at 3. The Legislature found that CPCs, which include unlicensed and licensed clinics, employ “intentionally deceptive advertising and counseling practices [that] often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.” Id. There are approximately 200 CPCs in California. Id.

Because “pregnancy decisions are time sensitive, and care early in pregnancy is important,” the Legislature found that the most effective way to ensure that women are able to receive access to family planning services, and accurate information about such services, was to require licensed pregnancy-related clinics unable to enroll patients in state-sponsored programs to state the existence of these services. Assem. Bill No. 775 § 1(c)-(d).

Thus, as required under the Act, all licensed covered facilities must disseminate a notice (the Licensed Notice) stating, “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].” Cal. Health & Safety Code § 123472(a)(1)

. The Act defines a licensed covered facility as “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 also satisfies two or more of the following criteria:

(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. The Act requires that the Licensed Notice be disclosed by licensed facilities in one of three possible manners:

(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. (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.

Id. § 123472(a)(2).

The Act also covers unlicensed facilities. An unlicensed clinic is “a facility that is not licensed by the State of California and does not have a licensed medical provider on staff or under contract who provides or directly supervises the provision of all of the services, whose primary purpose is providing pregnancy-related services” and that also satisfies two of the following criteria:

(1) The facility offers obstetric ultrasounds, obstetric sonograms

, or prenatal care to pregnant women. (2) The facility offers pregnancy testing or pregnancy diagnosis. (3) The facility advertises or solicits patrons with offers to provide prenatal sonography, pregnancy tests, or pregnancy options counseling. (4) The facility has staff or volunteers who collect health information from clients.

Id. § 123471(b). Unlicensed clinics must disseminate a notice (the Unlicensed Notice) stating, “This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.” Id. § 123472(b)(1). The Unlicensed Notice must be “disseminate[d] to clients on site and in any print and digital advertising materials including Internet Web sites.” Id. § 123472(b). Information in advertising material must be “clear and conspicuous,” and the onsite notice must be “at least 8.5 inches by 11 inches and written in no less than 48–point type, and ... posted conspicuously in the entrance of the facility and at least one additional...