BILL ANALYSIS Ó
AB 775
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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;
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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;
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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
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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.
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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
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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
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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
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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
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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.
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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?
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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.
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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
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