Right to Life of Cent. Cal. v. Bonta

• Citation: 562 F.Supp.3d 947
• Decision Date: 30 October 2021
• Docket Number: 1:21-cv-01512-DAD-SAB
• Parties: RIGHT TO LIFE OF CENTRAL CALIFORNIA, Plaintiff, v. Rob BONTA, in his official capacity as Attorney General of the State of California, Defendant.
• Court: U.S. District Court — Eastern District of California

562 F.Supp.3d 947

RIGHT TO LIFE OF CENTRAL CALIFORNIA, Plaintiff,

v.Rob BONTA, in his official capacity as Attorney General of the State of California, Defendant.

No. 1:21-cv-01512-DAD-SAB

United States District Court, E.D. California.

Signed October 30, 2021

Denise M. Harle, Pro Hac Vice, Alliance Defending Freedom, Lawrenceville, GA, Kevin Hayden Theriot, Pro Hac Vice, Alliance Defending Freedom, Scottsdale, AZ, Christiana Michelle Holcomb, Alliance Defending Freedom, Washington, DC, for Plaintiff.

Kristin A. Liska, Office of the Attorney General, Rita B. Bosworth, California Department of Justice, San Francisco, CA, for Defendant.

ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER

Dale A. Drozd, UNITED STATES DISTRICT JUDGE

This matter came before the court on October 28, 2021 for a hearing on the motion for a temporary restraining order filed on behalf of plaintiff Right to Life of Central California ("Right to Life" or "plaintiff") on October 20, 2021. (Doc. No. 11.) Attorney Kevin Hayden Theriot appeared by video for plaintiff. Deputy Attorney General Kristin A. Liska and Deputy Attorney General Rita B. Bosworth appeared by video on behalf of defendant Rob Bonta, in his official capacity as Attorney General of the State of California. For the reasons explained below, the court will grant plaintiff's motion for a temporary restraining order, in part.

BACKGROUND

On October 13, 2021, plaintiff filed a verified complaint against defendant seeking to enjoin enforcement of SB 742, a California urgency statute that became effective October 8, 2021 and is codified in California Penal Code § 594.39, which makes it

unlawful to knowingly approach within 30 feet of any person while a person is within 100 feet of the entrance or exit of a vaccination

site and is seeking to enter or exit a vaccination site, or any occupied motor vehicle seeking entry or exit to a vaccination site, for the purpose of obstructing, injuring, harassing, intimidating, or interfering with that person or vehicle occupant.

(Doc. No. 1 at ¶¶ 5, 56–58) (quoting Cal. Penal Code § 594.39(a) ). Plaintiff alleges that because SB 742 defines "harassing" as used in the provision as "knowingly approaching, without consent, within 30 feet of another person or occupied vehicle for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with, that other person in a public way or on a sidewalk area," SB 742 violates plaintiff's rights under the First and Fourteenth Amendments to the U.S. Constitution. (Doc. No. 1 at ¶¶ 60, 83.) Specifically, plaintiff asserts the following five causes of action in its complaint: (1) a First Amendment freedom of speech claim; (2) a First Amendment free exercise of religion claim; (3) a Fourteenth Amendment equal protection claim; (4) a Fourteenth Amendment procedural due process claim; and (5) a First Amendment expressive association claim. (Id. at 11–18.)

On October 20, 2021, plaintiff filed the pending motion for a temporary restraining order, requesting that the court temporarily enjoin "defendant and any person acting in concert with him from enforcing SB 742: (a) facially, against any speaker, and (b) as applied to the constitutionally protected activities of plaintiff and its agents, including their rights to engage in peaceful advocacy and association on public and private property." (Doc. No. 11 at 2.)

Plaintiff's motion is based on the facts alleged in its verified complaint,¹ as well as the declaration of John Gerardi, the Executive Director at Right to Life. (Doc. No. 11-2.) On October 25, 2021, defendant filed his opposition to the pending motion and a declaration by Deputy Attorney General Liska in support of that opposition. (Doc. Nos. 15, 15-1.) Plaintiff filed its reply thereto on October 26, 2021. (Doc. No. 17.)

Based on the evidence that the parties have submitted to the court, the relevant facts are summarized as follows.

A. SB 742 and California Penal Code § 594.39

In enacting SB 742, the California Legislature stated that "it is the intent of the Legislature to protect Californians from infectious diseases by safeguarding their right to access vaccination

sites and ensuring that Californians can lawfully protest." 2021 Cal. Legis. Serv. Ch. 737 (West). The Legislature stated that SB 742 "is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect," and stated specifically that "[i]n order to ensure public peace and safety during the process of distributing vaccinations during the ongoing COVID-19 pandemic and public health crisis, it is necessary for this measure to go into immediate effect." Id. § 4. The Legislature also made the following findings and declarations:

(1) On March 4, 2020, Governor Gavin Newsom declared a state of emergency in California due to the threat posed by the novel coronavirus (COVID-19) pandemic.

(2) The COVID-19 pandemic has resulted in the tragic death of over 640,000 Americans, including over 65,000 Californians.

(3) COVID-19 is increasingly infecting Californians’ children and preventing them from learning and attending school.

(4) The federal Centers for Disease Control and Prevention (CDC) stated that one of the principal ways that SARS–COV–2, the virus that causes COVID-19, is spread is through inhalation of very fine respiratory droplets and aerosol particles.

(5) Preeminent virologists, epidemiologists, and medical journals have all recognized that SARS–COV–2 can spread through aerosol transmission over multiple feet.

(6) The CDC recently told the public that the Delta COVID-19 variant, B.1.617.2, AY.1, AY.2, AY.3, is one of the most infectious and easily transmitted respiratory viruses ever.

(7) Preeminent virologists, epidemiologists, and medical journals have also recognized that other infectious diseases, including measles

, chickenpox, and tuberculosis, all spread through airborne transmission.

(8) Future unknown infectious diseases also likely will spread through airborne transmission.

(9) To blunt and stop infectious diseases, the State of California has an overwhelming and compelling interest in ensuring its residents can obtain and access vaccinations.

(10) The United States Supreme Court previously upheld a buffer zone protecting patients right to access healthcare services.

(11) Given the distance across which airborne infectious diseases spread, a 30–foot buffer zone is necessary to protect the health of Californians trying to access vaccination sites.

(12) Protestors at vaccination sites continue to impede and delay Californians’ ability to access vaccination sites.

Id. § 1(a). The Legislature enrolled and presented SB 742 to the Governor on September 13, 2021. See 2021 Cal. Senate Bill No. 742, California 2021–2022 Regular Session, Bill Tracking.

On October 8, 2021, Governor Newsom approved SB 742, effective immediately. Id. As noted above, SB 742 added § 594.39 to the California Penal Code, making it

unlawful to knowingly approach within 30 feet of any person while a person is within 100 feet of the entrance or exit of a vaccination

site and is seeking to enter or exit a vaccination site, or any occupied motor vehicle seeking entry or exit to a vaccination site, for the purpose of obstructing, injuring, harassing, intimidating, or interfering with that person or vehicle occupant.

Cal. Penal Code § 594.39(a). A violation of this law "is punishable by a fine not exceeding one thousand dollars ($1,000), imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment." Id. § 594.39(b). Section 594.39(d) states that "[i]t is not a violation of this section to engage in lawful picketing arising out of a labor dispute, as provided in Section 527.3 of the Code of Civil Procedure."² Id. § 594.39(d).

Section 594.39 defines some terms appearing in the statute but not others. "Vaccination

site" is defined as "the physical location where vaccination services are provided, including, but not limited to, a hospital, physician's office, clinic, or any retail space or pop-up location made available for vaccination services;" notably, this definition encompasses vaccines of any type , not just COVID-19 vaccines. Id. § 594.39(c)(6). "Harassing" is defined in the statute as "knowingly approaching, without consent, within 30 feet of another person or occupied vehicle for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with, that other person in a public way or on a sidewalk area." Id. § 594.39(c)(1). "Interfering with" is defined as "restricting a person's freedom of movement." Id. § 594.39(c)(2). "Intimidating" is defined as "making a true threat directed to a person or group of persons with the intent of placing that person or group of persons in fear of bodily harm or death." Id. § 594.39(c)(3). "Obstructing" is defined as "rendering ingress to or egress from a vaccination site, or rendering passage to or from a vaccination site, unreasonably difficult or hazardous." Id. § 594.39(c)(4). Section 594.39, however, provides no definition of "knowingly approach," "knowingly approaching," or "picketing" as those words are used in the statute.

Section 594.39 includes a severability clause, which states that "[t]he provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application." Id. § 594.39(e).

B. Plaintiff Right to Life's Expressive Activity

Plaintiff "Right to Life is a nonprofit organization serving women facing unplanned pregnancies or suffering the grief of abortion by providing outreach, material support, educational resources, medical care, and counseling." (Doc. No. 1 at ¶ 11.)...