BILL ANALYSIS Ó AB 775 Page 1 Date of Hearing: April 14, 2015 ASSEMBLY COMMITTEE ON HEALTH Rob Bonta, Chair AB 775 (Chiu) - As Amended April 8, 2015 SUBJECT: Reproductive FACT Act. SUMMARY: Requires licensed clinics that provide family planning or pregnancy-related services to provide a notice to consumers regarding their reproductive rights. Requires unlicensed facilities that provide pregnancy-related services to disseminate and post a notice informing consumers that they are not a licensed medical facility. Specifically, this bill: 1)Enacts the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act). 2)Defines, for purposes of the FACT Act, a licensed covered facility as a licensed, or intermittent, clinic whose primary purpose is providing family planning or pregnancy-related services, and that satisfies two or more of the following: a) The facility offers obstetric ultrasounds, obstetric sonograms, or prenatal care to pregnant women; b) The facility provides, or offers counseling about contraception, or contraceptive methods; AB 775 Page 2 c) The facility offers pregnancy testing or pregnancy diagnosis; d) The facility advertises or solicits patrons with offers to provide prenatal sonography, pregnancy tests, or pregnancy options counseling; and, e) The facility has staff or volunteers who collect health information from clients. 3)Clarifies that the following types of clinics are not considered covered facilities for the purposes of this bill: a) A clinic directly conducted, maintained, or operated by the United States or any of its departments, officers, or agencies; and, b) 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. 4)Defines, for purposes of the FACT Act, an unlicensed covered facility as a facility that is not licensed by the State of California and does not have a licensed medical provider on staff, whose primary purpose is providing pregnancy-related services and that satisfies two or more of the following: a) The facility offers obstetric ultrasounds, obstetric sonograms, or prenatal care to pregnant women; b) The facility offers pregnancy testing or pregnancy diagnosis; AB 775 Page 3 c) The facility advertises or solicits patrons with offers to provide prenatal sonography, pregnancy tests, or pregnancy options counseling; and, d) The facility has staff or volunteers who collect health information from clients. 5)Requires licensed covered facilities to disseminate the following notice in English and in minority languages pursuant to the federal Voting Rights Act, that states the following: "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]. " 6)Requires the notice to be posted in a conspicuous place in the licensed clinic, specifies the size of the type on the notice, and requires a printed copy be given directly to the client, either in written or digital form. Allows the notice to be combined with other mandated disclosures. 7)Requires an unlicensed facility to disseminate a notice to clients in English and in minority languages pursuant to the federal Voting Rights Act that states the following: "This facility is not licensed as a medical facility by the AB 775 Page 4 State of California and has no licensed medical provider who provides or directly supervises the provision of services." 8)Specifies the size of the notice, the size type the notice is printed in, and that the notice is to be posted conspicuously in the entrance to the unlicensed facility and in at least one other area where clients wait to receive services. Requires that the notice shall be given to clients onsite, and included in any print and digital advertising materials. 9)Establishes civil penalties for failure to comply with these provisions, enforceable by the Attorney General (AG), a city attorney, or county counsel if they have provided the facility with reasonable notice of noncompliance and verified that the violation was not corrected within 30 days from the date of the notice. 10)Specifies that any civil penalties be deposited into the General Fund if an action is brought by the AG, paid to the treasurer of the city if an action is brought by a city attorney, and paid to the county treasurer if an action is brought by a county counsel. 11)Requires the AG to post and maintain of the Department of Justice's (DOJ) Internet Web site a list of the covered facilities upon which a penalty has been imposed. 12)Provides that if any provisions of this bill or its application is held invalid, that invalidity will not affect other provisions or applications that can be given effect without the invalid provision or application. AB 775 Page 5 13)Makes various findings and declarations regarding Californian residents' rights to privacy and access to reproductive health services. EXISTING LAW: 1)Licenses and regulates clinics, including primary care clinics and specialty clinics such as surgical clinics, by the Department of Public Health (DPH). 2)Provides for exemptions from licensing requirements for certain types of clinics, including federally operated clinics, local government primary care clinics, clinics affiliated with an institution of higher learning, clinics conducted as outpatient departments of hospitals, and community or free clinics. Also provides for exemptions for community or free clinics that are operated on separate premises from the licensed clinic and are only open for limited services of no more than 20 hours a week (also known as intermittent clinics). 3)Authorizes DPH to take various types of enforcement actions against a primary care clinic that has violated state law or regulation, including imposing fines, sanctions, civil or criminal penalties, and suspension or revocation of the clinic's license. 4)Grants a specific right of privacy under the California AB 775 Page 6 Constitution and provides that the right to have an abortion may not be infringed upon without a compelling state interest. 5)Requires, under the federal Voting Rights Act, voting materials be translated in localities where there are more than 10,000 or over 5% of the total voting age citizens in a single political subdivision (usually a county, but a township or municipality in some states) who are members of a single minority language group, have depressed literacy rates, and do not speak English very well. The Census Bureau identifies specific language groups for specific jurisdictions. FISCAL EFFECT: This bill has not been analyzed by a fiscal committee COMMENTS: 1)PURPOSE OF THIS BILL. According to the author, California has a proud legacy of respecting reproductive freedom and funding forward thinking programs to provide reproductive health assistance to low income women. The author notes that according to the Department of Health Care Services, the Patient Protection and Affordable Care Act expansion has made millions of Californians, 53% of them women, newly eligible for Medi-cal. The author states because pregnancy decisions are time sensitive, California women should receive information about their rights and available services at the sites where they obtain care. The author contends that, unfortunately, there are nearly 200 licensed and unlicensed clinics known as crisis pregnancy centers (CPCs) in California whose goal is to interfere with women's ability to be fully informed and exercise their reproductive rights, and that CPCs pose as full-service AB 775 Page 7 women's health clinics, but aim to discourage and prevent women from seeking abortions. The author concludes that these intentionally deceptive advertising and counseling practices often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care. 2)BACKGROUND. a) Crisis Pregnancy Centers. CPCs are facilities, both licensed and unlicensed, which present themselves as comprehensive reproductive health centers, but are commonly affiliated with, or run by organizations whose stated goal is to prevent women from accessing abortions. A 2015 NARAL Pro-Choice America report on CPCs notes that the National Institute of Family and Life Advocates (an organization with over 1,300 CPC affiliates) states on its website that it is on the front line of the cultural battle over abortion, and its vision is to provide [CPCs] with legal resources and counsel, with the aim of developing a network of life-affirming ministries in every community across the nation in order to achieve an abortion-free America. The NARAL report also sent several researchers into CPCs to receive the counseling offered, and they widely reported that they were provided with inaccurate information, including only being given information regarding the risks of abortion, being told that many women commit suicide after having an abortion, and being told abortions can cause breast cancer. b) University of California, Hastings College of Law research report. In fall of 2009 the Assembly Business, Professions and Consumer ProtectionCommittee, concerned that CPCs throughout California were disseminating medically inaccurate information about pregnancy options available in the state, requested a report by the University of California, Hastings College of Law regarding AB 775 Page 8 CPCs' practices and potential legislative options for regulating them. Completed in December of 2010, "Pregnancy Resource Centers: Ensuring Access and Accuracy of Information," discusses several options for regulation CPCs, ranging from creating new regulations, leveraging existing regulations aimed specifically at medical services, as well as creating a new statute. Because approaches that have treated CPCs and full-service pregnancy centers differently have been challenged as violating the First Amendment, the report concludes that the best approach to a statutory change would regulate all pregnancy centers, not just CPCs, in a uniform manner, which is the approach that this bill adopts. c) Legal challenges to CPC regulation. In November 2014, the Supreme Court rejected an appeal from several CPCs over a 2011 New York City law that requires CPCs to inform clients whether or not they have medical personnel on site. New York City officials argued that the law is meant to protect consumers from false advertising. In February of this year, a federal judge upheld the City of San Francisco's regulation of CPCs, which prohibits clinics from engaging in false or misleading advertising. The law allows a judge to order clinics to post notices saying whether they offer abortions or abortion referrals. The ordinance was challenged by First Resort, a nonprofit clinic owner, as a violation of free speech. First Resort's print and online advertisements stated that the clinic offers "abortion information, resources and compassionate support for women facing the crucial decisions that surround unintended pregnancies and are considering abortion." In First Resort, Inc., v. Board of Supervisors of the City and County of San Francisco , the judges' ruling said the San Francisco law "only restricts AB 775 Page 9 false and misleading commercial speech, which is not protected by the First Amendment." 3)SUPPORT. Black Women for Wellness and NARAL Pro-Choice, California the co-sponsors of this bill as well as numerous other organizations, including, California Council of Churches IMPACT, California Latinas for Reproductive Justice, Maternal and Child Health Access, and Planned Parenthood, California, support this bill because it requires unlicensed facilities that provide pregnancy-related care to inform clients that they are not a licensed medical facility and do not have a licensed provider on staff, enabling women to seek the care they wish to obtain and providing context for counseling given at these unlicensed facilities. They also state that distributing a notice of reproductive health services would ensure that women in any reproductive health or pregnancy counseling facility know that California respects their rights and provides assistance. The California Primary Care Association (CPCA) states this bill will protect patients by allowing them to fully understand their rights when it comes to their reproductive freedom and to not be deceived by organizations whose sole purpose is to provide them with a biased view that does not allow them to make their own informed choice. CPCA notes that many of their community clinics and health centers grew out of the women's movement and their members believe a women's right to choose is a fundamental health right that must be protected. The American Nurses Association, California (ANA\C) writes that all California residents should have access to reproductive health services, and more than 700,000 California women become pregnant every year, approximately half of them unintentionally. ANA\C states thousands of women do not know the legal options they have, or the funding resources available to them, and this bill will help ensure that pregnant women receive the information they need to make an informed decision. AB 775 Page 10 Forward Together supports this bill, opining; women in California face a threat from manipulative crisis pregnancy centers which pose as comprehensive reproductive health centers, but are, in fact, anti-choice organizations that target women with the goal of blocking them from considering abortion as an option and using proven contraceptive methods. Forward Together contends that CPCs use false and misleading advertising to appeal to women, who think they may be pregnant and are looking for comprehensive reproductive health care, and then manipulate and shame these women by peddling medically inaccurate information about abortion and contraception. 4)OPPOSITION. The California Catholic Conference (CCC) opposes this bill stating, on its surface, the bill proposes to regulate the state's pregnancy centers, but in actuality is aimed at discriminating against those pregnancy centers that hold a pro-life viewpoint. CCC contents that such unfair legislation may discourage women from getting the assistance that they need and deserve as well as expose many of these pregnancy centers to needless criminal or civil sanctions for failure to comply. CCC concludes that because they believe all life is sacred, they support programs which offer medical, economic and emotional support for pregnant women and children, so that they can make life-affirming choices. The California Right to Life Committee, Inc. (CRLC) opposes this bill and states that, if enacted, it could set a precedent for many other businesses that are not like or appreciated by one group in society which could bring a law suit against another business, company, or agency. CRLC asks us to consider car dealerships: what if they were to be seen as anti-environmental with misleading advertising, selling too many cars, and making citizens not anxious to take high speed rail? CRLC asks; would it not be possible that the California High Speed Rail Authority require that car dealerships advertise High Speed Rail locations, schedules, and fees? AB 775 Page 11 CRLC argues the provisions of this bill would not be best practice for the car industry any more that it would be for pro-life pregnancy centers to have to promote services which they consider morally reprehensible. 5)DOUBLE REFERRAL. This bill is double referred; upon passage in this committee, this bill will be referred to the Assembly Judiciary Committee. 6)SUGGESTED AMENDMENT. As noted in existing law above, the federal Voting Act applies to political subdivisions (usually a county, but sometimes a township or municipality) and refers to populations that, "don't speak English very well." Because the covered facilities subject to the provisions of this bill are not likely to be familiar with federal Voting Act requirements, and state law already contains language that provides more specific guidance on which languages health related information should be translated into in each county, the Committee may wish to amend the bill to strike the references to federal law and instead require covered facilities to translate the notices required by this bill into the primary threshold languages for Medi-Cal beneficiaries as determined by the Department of Health Care Services for the county in which the covered facility is located. 7)POLICY COMMENT. This bill requires the AG to post and maintain on the DOJ Internet Web site a list of the covered facilities upon which a penalty has been imposed for noncompliance. Because an action against a covered facility may be brought by a city attorney or county counsel, as well as the AG, should this bill pass this committee, the author may wish to consider working with the Judiciary Committee to clarify how the AG will know a covered facility was cited when the action was brought by an agency other than the DOJ. AB 775 Page 12 REGISTERED SUPPORT / OPPOSITION: SupportBlack Women for Wellness (cosponsor) NARAL Pro-Choice California (cosponsor) Act for Women and Girls American Congress of Obstetricians and Gynecologists California Association for Nurse Practitioners California Council of Churches IMPACT California Latinas for Reproductive Justice California Primary Care Association California Women's Law Center California Women Lawyers Forward Together League of Women Voters of California Maternal And Child Health Access National Abortion Federation Planned Parenthood Affiliates of California Religious Coalition for Reproductive Choice, California Western Methodist Justice Movement Women's Community Clinic Women's Health Specialists Opposition Sacramento Life Center The California Catholic Conference The California Right to Life Committee, Inc. Analysis Prepared by:Lara Flynn / HEALTH / (916) 319-2097 AB 775 Page 13