BILL ANALYSIS                                                                                                                                                                                                    



                                                                     AB 775


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          Date of Hearing:  April 28, 2015


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AB 775  
          (Chiu) - As Amended April 16, 2015


          SUBJECT:  REPRODUCTIVE FACT ACT


          KEY ISSUES:  


          1)SHOULD LICENSED PRIMARY CARE CLINICS THAT PROVIDE FAMILY  
            PLANNING OR PREGNANCY-RELATED SERVICES BE REQUIRED TO PROVIDE  
            A SPECIFIED NOTICE INFORMING CONSUMERS ABOUT THE EXISTENCE OF  
            A CONTINUUM OF FREE OR LOW-COST HEALTH CARE SERVICES?


          2)SHOULD AN UNLICENSED FACILITY THAT PROVIDES PREGNANCY-RELATED  
            SERVICES BE REQUIRED TO PROVIDE A SPECIFIED NOTICE INFORMING  
            CONSUMERS THAT IT IS NOT A LICENSED MEDICAL FACILITY?


                                      SYNOPSIS


          This bill, co-sponsored by NARAL Pro-Choice America and Black  
          Women for Wellness, seeks to that ensure that women who are  
          pregnant are fully notified about the continuum of health care  
          services available in the state.  With respect to licensed  
          health care facilities, the bill requires each client at the  
          time of her visit to be advised of the various publicly funded  








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          family planning and pregnancy-related resources available in  
          California, and how to directly access these resources.   
          Proponents of the bill contend that this notice is needed to  
          ensure that women in California are fully informed of their  
          options and are able to make their own healthcare and  
          pregnancy-related decisions.  Opponents of the bill,  
          representing operators of pregnancy clinics impacted by this  
          bill and other concerned citizens holding pro-life views,  
          strongly object to this requirement and assert that it unfairly  
          targets pro-life pregnancy clinics because of their  
          anti-abortion viewpoint, forcing them to disseminate a message  
          with which they do not agree, in violation of free speech  
          protections.  The Committee's analysis of the free speech issues  
          indicates that the licensed facility notice is content-based and  
          would likely be considered viewpoint-neutral commercial speech.   
          As such, it would be subject to intermediate scrutiny.   
          Furthermore, even if the licensed facility notice were subjected  
          to strict scrutiny, it would likely be found to be  
          constitutional if the court agreed with the proponents' argument  
          that the most effective way to ensure that women timely obtain  
          the information and services they need during pregnancy is to  
          require licensed health facilities to provide the notice.


          With respect to unlicensed facilities, the bill simply requires  
          each client to be advised at the time of her visit that the  
          facility is not licensed as a medical facility.  Proponents of  
          the bill contend that this notice is needed to ensure that  
          pregnant women in California know when they are (and are not)  
          getting medical care from licensed professionals.  Opponents  
          generally do not allege this notice violates free speech  
          protections, but some contend that this provision requires  
          unlicensed clinics to post language that is untrue.  They  
          contend that many of the non-licensed clinics do have licensed  
          medical staff on site as the clinics seek to become licensed.   
          The Committee's analysis of the unlicensed facility notice  
          concludes that it is content-based and would most likely be  
          considered viewpoint-neutral commercial speech.  As such, the  
          required notice would be subject to rational basis scrutiny and  








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          would likely be found permissible under that standard.  Even if  
          the notice were to be subject to strict scrutiny, it would  
          likely withstand strict scrutiny, especially in light of two  
          recent court decisions from other states which have upheld,  
          after applying strict scrutiny, requirements for unlicensed  
          facilities to provide similar notices.





          Finally, the bill authorizes modest civil penalties to be  
          imposed if, after having been given notice of non-compliance and  
          30 days in which to correct a violation, the facility still  
          fails to comply with these provisions.  This bill previously  
          passed the Health Committee by a 12-5 vote, and will be referred  
          to Appropriations should it be approved in this Committee.


          SUMMARY:  Requires licensed facilities and unlicensed facilities  
          whose purpose is to provide pregnancy-related services to  
          provide specified notices to clients.  Specifically, this bill:   
           


          1)Defines a licensed covered facility to mean 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;


             c)   The facility offers pregnancy testing or pregnancy  
               diagnosis;









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             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.



          2)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.



          3)Defines an unlicensed covered facility to mean 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; 


             c)   The facility advertises or solicits patrons with offers  
               to provide prenatal sonography, pregnancy tests, or  
               pregnancy options counseling; and, 









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             d)   The facility has staff or volunteers who collect health  
               information from clients.



          4)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]. "





          5)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.



          6)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  
               State of California and has no licensed medical provider  
               who provides or directly supervises the provision of  
               services."  









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          7)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.

          8)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.



          9)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.



          10)Requires the AG to post and maintain on the Department of  
            Justice's (DOJ) Internet Web site a list of the covered  
            facilities upon which a penalty for violation of these  
            requirements has been imposed.



          11)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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          12)Makes various findings and declarations, including, among  
            other things:





             a)   Because pregnancy decisions are time sensitive, and care  
               early in pregnancy is important, California must supplement  
               its own efforts to advise women of its reproductive health  
               programs.



             b)   The most effective way to ensure that women quickly  
               obtain the information and services they need to make and  
               implement timely reproductive decisions is to ensure  
               licensed health care facilities that are unable to  
               immediately enroll patients into the Family PACT and  
               Medi-Cal programs advise each patient at the time of her  
               visit the various publicly funded family planning and  
               pregnancy-related resources available in California and the  
               manner in which to directly and efficiently access those  
               resources.



             c)   The purpose of the Act is to ensure that California  
               residents make their personal reproductive health care  
               decisions by knowing their rights and health care services  
               available to them.
          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).  (Health and Safety Code  
            Section 1200 et seq.)









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          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.  (Health and Safety Code Section  
            1206.)



          3)Prohibits any government body from making any law respecting  
            an establishment of religion, or prohibiting the free exercise  
            thereof; or abridging the freedom of speech, or of the press;  
            or the right of the people peaceably to assemble, and to  
            petition the government for a redress of grievances.  (U.S.  
            Constitution, Amendment I, made applicable to the states by  
            Amendment XIV.)



          4)Provides that every person may freely speak, write and publish  
            his or her sentiments on all subjects, being responsible for  
            the abuse of this right, and that no law shall restrain or  
            abridge liberty of speech or press.  (Cal. Const., Art. I,  
            Section 2.)



          5)Holds that the government is "free to prevent the  
            dissemination to commercial speech that is false, deceptive,  
            or misleading" without violating the First Amendment.   
            (Zauderer v. Office of Disciplinary Counsel of the Supreme Ct.  
            (1985) 471 U.S. 638.)
          FISCAL EFFECT:  As currently in print this bill is keyed fiscal.


          COMMENTS:  This bill, co-sponsored by NARAL Pro-Choice America  








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          and Black Women for Wellness, seeks to ensure that women who are  
          pregnant are fully notified about the continuum of health care  
          services available in the state.  With respect to licensed  
          health care facilities, the bill requires each client at the  
          time of her visit to be advised of the various publicly funded  
          family planning and pregnancy-related resources available in  
          California, and how to directly access these resources.  With  
          respect to unlicensed facilities, the bill simply requires each  
          client to be advised at the time of her visit that the facility  
          is not licensed to provide medical care.  The bill authorizes  
          modest civil penalties to be imposed if, after having been given  
          notice of noncompliance and 30 days in which to correct a  
          violation, the facility still fails to comply with these  
          provisions.


          Author's Statement.  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  
              power of the law is only fully realized when California's  
              women are fully informed of the rights and services  
              available to them.  Because family planning and pregnancy  
              decisions are time sensitive, California women should  
              receive information about their rights and available  
              services at the sites where they obtain care. 


              Millions of California women are in need of publicly funded  
              family planning services, contraception services and  
              education, abortion services, and prenatal care and  
              delivery.  More than 700,000 California women become  
              pregnant every year and one-half of these pregnancies are  
              unintended.  Yet, at the moment they learn they are  
              pregnant, thousands of women remain unaware of the public  
              programs available to them, including contraception, health  
              education and counseling, family planning, prenatal care,  








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              abortion or delivery. 


              It is in the best interest of the state, patients and  
              providers that women are aware of available assistance to  
              them - whether it is for preventing, continuing, or  
              terminating a pregnancy.  AB 775 ensures that women in  
              California are fully informed of their options and are able  
              to make their own healthcare and pregnancy-related  
              decisions.


          Background on Community Clinics.  Community clinics and health  
          centers are nonprofit, tax-exempt clinics that are licensed as  
          community or free clinics, and provide services to patients on a  
          sliding fee scale basis or, in the case of free clinics, at no  
          charge to the patients.  These include federally designated  
          community health centers, migrant health centers, rural health  
          centers, and frontier health centers.  California is home to  
          nearly 1,000 community clinics serving more than 5.6 million  
          patients (or one in seven Californians) annually through over 17  
          million patient encounters.  More than 50% of these patients are  
          Hispanic and 43% speak a primary language other than English.





          The non-statutory term "crisis pregnancy center" (CPC) refers to  
          a subset of facilities that offer pregnancy-related services and  
          are commonly affiliated with or operated by organizations whose  
          stated goal is to prevent women from accessing abortions.   
          Depending on factors like the personnel who are employed and the  
          types of clinical or medical services offered, a CPC may operate  
          as a licensed facility or, if exempted under Health and Safety  
          Code Section 1206, an unlicensed facility.  For the purpose of  
          analyzing the free speech issues raised by this bill, however,  
          the only distinction that matters is whether a facility is  
          considered a licensed covered facility or an unlicensed covered  








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          facility because the bill regulates all members within each  
          category equally and each category contains both CPCs and  
          non-CPCs.





          I. FIRST AMENDMENT DOCTRINE: COMPELLED SPEECH.  It is  
          well-established that the First Amendment generally prohibits  
          the government from compelling speech.  "[T]he right of freedom  
          of thought protected by the First Amendment ? includes both the  
          right to speak freely and the right to refrain from speaking at  
          all." (Wooley v. Maynard, 430 U.S. 705, 714; see R.J. Reynolds  
          Tobacco Co. v. Shewry (9th Cir. 2005) 423 F.3d 906, 915.)   
          However, the First Amendment's protections-including the right  
          to not be compelled to speak-are not absolute.  (See Schenck v.  
          United States (1919) 249 U.S. 47, 52, "The most stringent  
          protection of free speech would not protect a man [from] falsely  
          shouting fire in a theatre and causing panic.")





          In a compelled speech analysis, a court will uphold a law that  
          compels speech if the law is tailored and the government's  
          reasoning behind the law survives the applicable level of  
          scrutiny.  A court applies different levels of scrutiny  
          depending on how the speech is classified.  The higher the  
          scrutiny, the more tailored the law must be, and the more  
          compelling the government's interest must be.  (See Riley v.  
          National Federation of the Blind of North Carolina (1988) 487  
          U.S. 781, 796, "Our lodestars in deciding what level of scrutiny  
          to apply to a compelled statement must be the nature of the  
          speech taken as a whole and the effect of the compelled  
          statement thereon.")










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          A. Content-Based or Content-Neutral.  The first classification  
          of any regulation of speech is whether the regulation is  
          "content-based" or "content-neutral."  However, the Supreme  
          Court has stated that "[m]andating speech that a speaker would  
          not otherwise make necessarily alters the content of the  
          speech."  (Riley v. National Federation of the Blind of North  
          Carolina, Inc. (1988) 487 U.S. 781, 795.)  Accordingly, any  
          compelled speech is viewed as a content-based regulation (i.e. a  
          law proscribing certain content).  (Ibid.)  





          Subject-Matter Discrimination vs. Viewpoint Discrimination.  If  
          the speech is a "content-based" regulation, a court will  
          distinguish whether the law is "subject-matter discrimination"  
          or "viewpoint discrimination."  For example, a regulation  
          prohibiting discussion of abortion in general would be  
          "subject-matter discrimination," whereas a regulation  
          prohibiting someone from speaking out against abortion would be  
          "viewpoint discrimination."  While both forms of discrimination  
          are content-based, the courts have held that "viewpoint  
          discrimination" is an especially suspect and "egregious form of  
          content discrimination [and]  . . . the government must abstain  
          from regulating speech when the specific motivating ideology or  
          the opinion or perspective of the speaker is the rationale for  
          the restriction."  (Rosenberger v. Rector and Visitors of the  
          Univ. of Va. (1995) 515 U.S. 819, 829.)





          B. Commercial Speech (including Professional Speech) or  
          Noncommercial Speech.  The second level of analysis for a speech  








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          regulation is whether the speech being regulated is commercial  
          or noncommercial speech.  If the regulation is content-based and  
          the speech is noncommercial, a court will likely apply the  
          strict scrutiny.  Conversely, a similar regulation that is  
          content-based but where the speech is commercial, a court will  
          apply a more lenient standard.  (See Dex Media West, Inc. v.  
          City of Seattle (9th Cir. 2012) 696 F.3d 952, 956-957.)  Indeed,  
          regulations targeting misleading commercial speech need only  
          survive rational basis scrutiny.  (See Zauderer v. Office of  
          Disciplinary Counsel of the Supreme Ct. (1985) 471 U.S. 626.)





          Sometimes, the line between commercial speech and noncommercial  
          speech is not clear.  For example, in Bolger v. Youngs Drug  
          Products Corp., the Court struck down a federal law that  
          prohibited unsolicited advertisements on contraception.  There,  
          a manufacturer and distributor of contraceptives-who challenged  
          the law-distributed pamphlets which advertised its  
          contraceptives and discussed in its pamphlets issues like  
          venereal disease and family planning.  Although the Court  
          ultimately struck down the law, the Court held that the pamphlet  
          was commercial speech.  (Bolger v. Youngs Drug Prods. Corp.  
          (1983) 463 U.S. 60, 75.) 





          Courts have established a test to help identify whether speech  
          is more like commercial or noncommercial speech.  In a close  
          case where the regulation involves both commercial and  
          noncommercial speech, a reviewing court looks at (i) the  
          advertising format of the speech, (ii) the speech's reference to  
          a specific product, and (iii) the underlying economic motive of  
          the speaker (collectively known as the "Bolger" factors).    
          (Ass'n of Nat. Advertisers, Inc. v. Lungren (9th Cir. 1994) 44  








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          F.3d 726, 728.)





          (1) Commercial Speech. It is well-settled law that the  
          government is "free to prevent the dissemination to commercial  
          speech that is false, deceptive, or misleading" without  
          violating the First Amendment.  (Zauderer v. Office of  
                                                     Disciplinary Counsel of the Supreme Ct. (1985) 471 U.S. 638.)   
          Specifically, "disclosure requirements trench much more narrowly  
          on an advertiser's interests [because] warnings or disclaimers  
          might be appropriately required in order to dissipate the  
          possibility of consumer confusion or deception."  (Id. at 651  
          [internal quotations omitted]).  Accordingly, misleading  
          commercial speech only needs to survive rational basis scrutiny.  
           (Ibid.)





          Indeed, "laws requiring a commercial speaker to make purely  
          factual disclosures relating to its business affairs, whether to  
          prevent deception or simply to promote informational  
          transparency, have a purpose consistent with the reasons for  
          according constitutional protection to commercial speech."   
          (Beeman v. Anthem Prescription Management, LLC (2013) 58 Cal.4th  
          329, 356 [citations omitted].)  Similarly, "[m]andated  
          disclosure of accurate, factual, commercial information does not  
          offend the core First Amendment values of promoting efficient  
          exchange of information or protecting individual liberty  
          interests.  Such disclosure furthers, rather than hinders, the  
          First Amendment goal of the discovery of truth and contributes  
          to the efficiency of the 'marketplace of ideas.'"  (National  
          Electric Manufacturers Assn. v. Sorrell (2d Cir. 2001) 272 F.3d  
          104, 113-114.)  









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          (2) Professional Speech.  Courts have established a doctrine,  
          like the commercial speech doctrine, that applies when  
          government regulates professional speech.  Justice Jackson  
          provided the following explanation for why a professional speech  
          doctrine exists:





            The modern state owes and attempts to perform a duty to  
            protect the public from those who seek for one purpose or  
            another to obtain its money.  When one does so through the  
            practice of a calling, the state may have an interest in  
            shielding the public against the untrustworthy, the  
            incompetent, or the irresponsible, or against unauthorized  
            representation of agency. A usual method of performing this  
            function is through a licensing system?.Very many are the  
            interests which the state may protect against the practice of  
            an occupation, very few are those it may assume to protect  
            against the practice of propagandizing by speech or press.   
            (Thomas v. Collins (1945) 323 U.S. 516, 545 (Jackson, J.,  
            concurring).)





          In other words, a state or federal government may regulate  
          professional speech because "[i]t is the State's imprimatur (and  
          the regulatory oversight that accompanies it) that provide  
          clients with the confidence ? to put their health or their  
          livelihood in the hands of those [professionals] who utilize  
          knowledge and methods with which the clients ordinarily have  
          little or no familiarity.  (King v. Governor of the State of New  








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          Jersey (3d Cir. 2014) 767 F.3d 216, 232.) 





          Professional speech, similar to commercial speech, is subject to  
          lower level of scrutiny.  The Ninth Circuit Court of Appeals, in  
          Pickup v. Brown, explains this principle: 





            The First Amendment tolerates a substantial amount of speech  
            regulation within the professional-client relationship that it  
            would not tolerate outside of it.  And that toleration makes  
            sense: When professionals, by means of their state-issued  
            licenses, form relationships with clients, the purpose of  
            those relationships is to advance the welfare of the clients,  
            rather than to contribute to public debate.  (Pickup v. Brown  
            (9th Cir. 2014) 740 F.3d 1208, 1228.)





          To determine whether speech is professional speech, the inquiry  
          is whether the "speaker takes the affairs of a client personally  
          in hand and purports to exercise judgment on behalf of the  
          client in the light of the client's individual needs and  
          circumstances." (Moore-King v. County of Chesterfield, Va. (4th  
          Cir. 2013) 708 F.3d 560, 569 [citations omitted].) 





          II. APPLYING FREE SPEECH ANALYSIS TO THE REQUIRED NOTICE FOR  








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          LICENSED HEALTH CARE FACILITIES.  This bill requires a licensed  
          covered facility, as defined, to disseminate to all clients on  
          site the following notice ("licensed facility notice"):


          


            "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]."





          Proponents of the bill contend that this notice is needed to  
          ensure that women in California are fully informed of their  
          options and are able to make their own healthcare and  
          pregnancy-related decisions.  Opponents of the bill, however,  
          strongly object to this requirement and assert that it unfairly  
          targets operators of CPCs because of their anti-abortion  
          viewpoint, forcing them to disseminate a message with which they  
          do not agree, in violation of free speech protections.





          As detailed below, the Committee's analysis of the free speech  
          issues indicates that the licensed facility notice is  
          content-based, and would likely be considered viewpoint-neutral  
          commercial speech that would be subject to intermediate  
          scrutiny.  Even if the notice were subjected to strict scrutiny,  
          the notice may very well be held constitutional if a court  








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          accepted proponents' argument that the most effective way to  
          ensure that women timely obtain the information about services  
          they need during pregnancy is to require licensed health  
          facilities to provide the notice on site.





          A. The Licensed Facility Notice will Likely be Construed as a  
          Content-Based Regulation.  Because the licensed facility notice  
          relates to pregnancy-related services, the speech regulated will  
          likely be considered content-based, and not content-neutral.   
          Moreover, any compelled speech regulation is generally analyzed  
          as a content-based restriction.  (See Riley, supra, at p. 795.)   
          Accordingly, the level of scrutiny a court would apply depends  
          on whether the notice triggers viewpoint discrimination, or is  
          commercial speech.





          B. The Licensed Facility Notice Does Not Create Viewpoint  
          Discrimination, and is Viewpoint Neutral.  Viewpoint  
          discrimination occurs when the government not only targets a  
          certain subject matter, but also targets a particular point of  
          view on that specific subject matter.  (See Rosenberger, supra,  
          at p. 829.)  Here, the government's compelling interest is  
          consistent with the licensed facility notice, which does not  
          convey a particular viewpoint about the services it mentions.   
          The stated purpose of the bill is to ensure that women who are  
          pregnant are fully notified about the full spectrum of health  
          care services available in the state.  The notice in this bill  
          is likely to be construed as viewpoint-neutral because the  
          notice speaks to the entire continuum of pregnancy-related  
          health care services, like family planning services,  
          contraception, prenatal care, and abortion.  Moreover, the  
          regulation applies to all primary care clinics whose primary  








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          purpose is providing family planning or pregnancy-related  
          services, and provides at least two of the following:  
          ultrasounds, contraceptives, pregnancy testing, advertising, or  
          data collection.  This means that the notice requirement will  
          apply to different types of health care facilities represented  
          on the spectrum (as described in the notice).





          C. Exemption of Certain Facilities Under this Bill Does Not  
          Create Viewpoint Discrimination. Similar to the disputed  
          exemption in McCullen, discussed above, the exemption provided  
          under this bill does not demonstrate viewpoint discrimination.   
          The first exemption is provided to clinics operated by the  
          federal government, which is aimed at addressing preemption  
          concerns.  The second exemption is provided to a licensed  
          primary care clinic that is enrolled as a Medi-Cal provider and  
          enrolled as a provider in the Family Planning, Access, Care, and  
          Treatment Program (Family PACT).





          According to the author, a licensed primary care clinic that is  
           both  a Medi-Cal provider and a Family PACT provider offers the  
          full continuum of health care services as described in the  
          Notice above (i.e. comprehensive family planning services,  
          contraception, prenatal care, and abortion).  Under Medi-Cal, a  
          patient is covered for pregnancy-related services, maternity and  
          new born care, prenatal care, and emergency and abortion  
          services.  Under Family PACT, a patient is covered for  
          comprehensive clinical family planning services, including but  
          not limited to methods and services to limit or enhance  
          fertility (including contraceptives); natural family planning;  
          abstinence methods; limited fertility management; preconception  
          counseling; maternal and fetal health counseling; general  








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          reproductive health care (including diagnosis and treatment of  
          infections and conditions, including cancer, that threaten  
          reproductive capability); medical family planning treatment; and  
          family planning procedures.





          Thus, the entire spectrum of services, as specified in the  
          notice, will be provided by a Medi-Cal and Family PACT provider.  
           Accordingly, there is appropriate justification for those  
          clinics to be exempted from the requirement to provide the  
          licensed facility notice.





          D. The Licensed Facility Notice Will Likely be Construed as  
          Commercial or Professional Speech.  As previously stated, the  
          speech being regulated is professional speech if "the speaker  
          takes the affairs of a client personally in hand and purports to  
          exercise judgment on behalf of the client in the light of the  
          client's individual needs and circumstances." (Moore-King v.  
          County of Chesterfield, Va. (4th Cir. 2013) 708 F.3d 560, 569  
          [citations omitted].)





          Under this bill, a licensed facility means a facility licensed  
          under Section 1204, or an intermittent clinic operating under a  
          primary care clinic pursuant to subdivision (h) of Section 1206  
          of the Health and Safety Code.  This class of primary care  
          clinics generally includes a community clinic, a free clinic, a  
          surgical clinic, a chronic dialysis clinic, a rehabilitation  
          clinic, and an alternative birth center (collectively "primary  








                                                                     AB 775


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          care clinics").





          In order to be licensed as a primary care clinic, an applicant  
          must apply to the California Department of Public Health and  
          comply with a series of licensing requirements to provide care.   
          A clinic must provide "diagnostic, therapeutic, radiological,  
          laboratory and other services for the care and treatment of  
          patients for whom the clinic accepts responsibility."  (22 Cal.  
          Code Regs.  Section 75026.)  Moreover, "[e]very medical clinic  
          shall have a licensed physician designated as the professional  
          director" and "[a] physician, physician's assistant, or a  
          registered nurse shall be present whenever medical services are  
          provided."  (22 Cal. Code Regs. Section 75027.)  





          Given that a primary care clinic accepts to provide treatment  
          for patients whom the clinic accepts responsibility, and  
          provides medically-supervised care, a notice requirement for  
          primary care clinic is likely to be construed a professional  
          speech.  (See Moore-King, supra, at p. 569.)  Accordingly, a  
          court would likely apply intermediate scrutiny.





          E. The Licensed Facility Notice Will Likely Survive Intermediate  
          Scrutiny.  Because the licensed family notice will likely be  
          construed as professional speech, a reviewing court will  
          probably subject the notice to intermediate scrutiny.  To  
          survive intermediate scrutiny, the law must directly advance a  
          substantial governmental interest.  (See Association of National  








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          Advertisers, Inc. v. Lungren (9th Cir. 1994) 44 F.3d 726, 729.)





          Here, the interest is to ensure that women who are pregnant are  
          fully notified about the continuum of health care options  
          available in the state.  (Indeed, public health has always been  
          viewed as a compelling governmental interest.)  The government's  
          interest here in ensuring that pregnant women are informed about  
          their health care options is directly advanced by a notice  
          provided by primary care facilities, especially if the facility  
          does not provide the full spectrum of health care services.   
          Thus, the licensed facility notice will survive intermediate  
          scrutiny.


          


          F. Even if a Court were to Apply Strict Scrutiny, the Licensed  
          Facility Notice Will Likely Pass Constitutional Muster.  To  
          survive strict scrutiny, the law must be narrowly tailored to  
          satisfy a compelling government interest.  As previously stated,  
          the interest is to ensure that women who are pregnant are fully  
          notified about the continuum of health care options available in  
          the state.  The interest is compelling and narrowly tailored  
          because the time-sensitive nature of any pregnancy affects the  
          policy options that this Legislature can enact.  As this author  
          has stated, the most effective way to ensure that women obtain  
          information and services they need during pregnancy in a timely  
          way is to require a licensed health care facility to provide the  
          notice.


          










                                                                     AB 775


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          An alternative, like a statewide campaign, would not achieve the  
          compelling interest because it would not sufficiently provide  
          information to the consumer about the services provided  
          available at a particular primary care facility, especially if  
          that facility does not provide the full spectrum of medical  
          options.  (See Evergreen Ass'n, Inc., supra, at p. 247.)  Thus,  
          the licensed facility notice will likely pass constitutional  
          muster, whether a court reviews the law under intermediate or  
          strict scrutiny.





          III. APPLYING FREE SPEECH ANALYSIS TO THE REQUIRED NOTICE FOR  
          UNLICENSED FACILITIES.  The bill requires an unlicensed covered  
          facility, as defined, to disseminate to clients on site the  
          following notice ("unlicensed facility notice"):





            "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."





          Proponents of the bill contend that this notice is needed to  
          ensure that pregnant women in California know when they are  
          getting medical care from licensed professionals.  According to  
          the author, the bill is intended to ensure that unlicensed  
          facilities that advertise and provide pregnancy testing and care  
          must advise clients, at the time they are seeking or obtaining  
          care, that these facilities are not licensed to provide medical  








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          care. 





          Most of the opposition letters received by the Committee object  
          to the licensed facility notice as violation of free speech  
          rights, but the letters make no allegation that the unlicensed  
          facility notice is in similar violation of those rights.  Some  
          opponents, however, object that this provision requires  
          non-licensed clinics to post language that is untrue because,  
          they contend, many of the non-licensed clinics have licensed  
          medical staff on site as the clinics prepare to obtain their  
          licenses.





          As detailed below, the Committee's analysis of the free speech  
          issues indicates that the unlicensed facility notice is  
          content-based and would likely be considered viewpoint-neutral  
          commercial speech.  As such, the required notice would be  
          subject to rational basis scrutiny and would likely be found to  
          be permissible under that standard.  Even if the notice were  
          subjected to strict scrutiny, the notice may very well be held  
          constitutional in light of two recent court decisions, described  
          below, that upheld similar notices required for unlicensed  
          facilities after applying strict scrutiny.





          A. The Unlicensed Facility Notice will be Construed a  
          Content-Based Regulation.  Since the unlicensed facility notice  
          relates to a specific subject matter, the notice will be  
          construed as a content-based regulation.  Moreover, any  








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          compelled speech regulation is generally analyzed as a  
          content-based restriction.  (See Riley, supra, at p. 795.)   
          Accordingly, the level of scrutiny a court applied would depend  
          on whether this bill were found to trigger viewpoint  
          discrimination, or to be targeting commercial speech.





          B. The Unlicensed Facility Notice is Viewpoint Neutral.  As  
          stated above, viewpoint discrimination occurs when the  
          government not only targets a certain subject matter, but also  
          targets a particular point of view taken by speakers on that a  
          specific subject matter.  (See Rosenberger, supra, at p. 829.)





          Here, the notice required of an unlicensed facility does not  
          take a particular point of view.  The notice simply requires an  
          unlicensed facility to state uncontrovertibly that it is not a  
          medical facility (if it is not licensed).  Accordingly, the  
          notice is viewpoint neutral.





          C. The Unlicensed Facility Notice Will be Likely be Construed as  
          Commercial Speech.  As previously mentioned, the line between  
          commercial and noncommercial speech is not always clear.  To  
          determine whether the speech that is being regulated is  
          commercial or noncommercial, a reviewing court looks at the  
          Bolger factors: (i) the advertising format of the speech, (ii)  
          the speech's reference to a specific product, and (iii) the  
          underlying economic motive of the speaker.  (Lungren, supra, at  
          p. 728.)








                                                                     AB 775


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          Here, the speech and notice likely meets the Bolger factors.   
          First, the format of the notice is required to be in advertising  
          materials, and onsite in areas where there is an initial contact  
          between the client and the facility.  (See American Academy of  
          Pain Management v. Joseph (9th Cir. 2004) 353 F.3d 1099, 1106,  
          finding that "advertising" was sufficient for the first Bolger  
          "format" factor.)  Second, the speech here is related to a  
          pregnancy-related health service, which is considered a product.  
           (See Joseph, supra, at p. 1106, finding that "medical services"  
          was a specific product for the second Bolger factor.)  





          While the third Bolger factor for the unlicensed facilities  
          notice may be a closer question, a court would likely find that  
          the unlicensed facility has an economic motive.  If the facility  
          charges a fee, that is generally sufficient to establish an  
          economic motive.  However, a facility that does not charge a fee  
          may still be construed as having an economic motive because it  
          attracts clients and patients in order to perform health  
          services, rather than to exchange ideas.  (See Greater Baltimore  
          Center for Pregnancy Concerns, Inc. v. Mayor and City Council of  
          Baltimore (4th Cir. 2013) 721 F.3d 264, 286, citing Fargo  
          Women's Health Organization, Inc. v. Larson (1986) 381 N.W.2d  
          176, 180-81, "the degree, if any, that monies are received by  
          the [nonprofit] from its clients is not dispositive of the  
          commercial speech issue" [internal citations omitted].)


          Accordingly, it seems likely that the speech required under this  
          bill would be construed as commercial speech, and a reviewing  
          court would likely apply rational basis scrutiny.  (Zauderer,  








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          supra, at p. 638.)  





          D. The Unlicensed Facility Notice Will Likely Survive Rational  
          Basis Scrutiny.  As previously stated, the author has stated  
          that the government's compelling interest is to ensure that  
          women who are pregnant are fully notified about the continuum of  
          health care services available in the state.  





          Given that the notice required of unlicensed facilities is about  
          promoting transparency and avoiding consumer confusion, a court  
          is likely to apply rational basis scrutiny.  Here, the notice  
          required of unlicensed facilities is reasonably related to the  
          state's interest in ensuring that pregnant women are fully  
          notified about the continuum of health care services available  
          in the state.  The notice is a fact-specific, incontrovertible  
          statement aimed at informing a patient about the kinds of  
          services a facility provides.  (See Sorrell, supra, at pp.  
          113-114.)  





          Additionally, because the state wants to ensure that a woman  
          knows about all of her health care options, a notice informing  
          the woman about the lack of a health care professional informs  
          her that certain health care services are unavailable.   
          Understanding that certain health care services are not  
          available assists a consumer of health-related services to avoid  
          confusion or deception about the kind of care that an unlicensed  
          facility may provide.  (See Zauderer, supra, at p. 638.)  Thus,  








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          the unlicensed facility notice will likely survive rational  
          basis scrutiny.





          E. Even If A Court Were to Apply Strict Scrutiny, The Unlicensed  
          Facility Notice Will Likely Pass Constitutional Muster.  Similar  
                                      notices-like the notice that is required of an unlicensed  
          facility under this bill-were upheld in two Circuit Courts of  
          Appeals that applied strict scrutiny.


          


          In Centro Tepayac v. Montgomery County, the Fourth Circuit  
          reviewed a 2010 resolution passed by the Montgomery County  
          Council that regulated pregnancy service centers.  (Centro  
          Tepayac v. Montgomery County.  (4th Cir. 2013) 722 F.3d 184,  
          189.)  The Montgomery Resolution required a pregnancy service  
          center that did not have a licensed medical professional on  
          staff to post a sign stating that "the Center does not have a  
          licensed medical professional on staff."  (Id. at p. 189.)  The  
          Centro Tepayac, a nonprofit organization that operated a limited  
          pregnancy resource center, challenged the law.  The Fourth  
          Circuit upheld the law and the lower court's application of  
          strict scrutiny.  The court found that the government had a  
          compelling interest to ensure that women were able to obtain  
          needed medical care, and that women did not forgo medical  
          treatment.  The notice was narrowly tailored because it notified  
          patients "in neutral language [stating] the truth that a  
          licensed medical professional is not on staff, [and the notice]  
          does not require any other specific message."  (Id. at p. 190  
          [internal quotations omitted.) Accordingly, the Resolution was  
          constitutional.










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          In Evergreen Ass'n, Inc. v. City of New York, the Second Circuit  
          reviewed a 2011 City of New York ordinance that regulated  
          pregnancy service centers. (Evergreen Ass'n, Inc. v. City of New  
          York (2nd Cir. 2014) 740 F.3d 233, 238.)  Among other things,  
          the New York Ordinance required a pregnancy service center to  
          disclose whether the center had "a licensed medical provider on  
          staff who provides or directly supervises the provision of all  
          of the services at such pregnancy service center."  (Ibid.)   
          Evergreen Association, Inc. challenged the law on several  
          arguments, including on First Amendment grounds.  Similar to the  
          Fourth Circuit, the Second Circuit applied strict scrutiny to  
          the notice and upheld the law.  The court held that "striking  
          down the [disclosure] would deprive the City of its ability to  
          protect the health of its citizens and combat consumer deception  
          in even the most minimal way."  (Id, at p. 247.)  





          Specifically, the Evergreen court stated that the government had  
          a compelling interest "to ensure that women have prompt access  
          to the type of care they seek" and "to prevent [women] from  
          mistakenly concluding that pregnancy services centers, which  
          look like medical facilities, are medical facilities, whether or  
          not the centers engage in deception."  (Evergreen Ass'n, Inc.,  
          supra, at p. 247.)  The law was narrowly tailored because  
          alternatives like city-sponsored advertisements and prosecuting  
          fraud, false advertising, or the unauthorized practice of  
          medicine would not achieve the City's interest.  (Ibid.)   
          Specifically, the alternatives would not alert consumers "as to  
          whether a particular pregnancy services center employs a  
          licensed medical provider, because, among other things, this is  
          discrete factual information known only to the particular  
          center." (Ibid [original emphasis].)  Moreover, "[e]nforcement  
          of fraud or other laws occurs only after the fact, at which  








                                                                     AB 775


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          point the reproductive service sought may be ineffectual or  
          unobtainable."  (Ibid.)  Thus, the notice required of unlicensed  
          facilities will likely pass constitutional muster, whether a  
          court reviews the law under rational basis or strict scrutiny.





          ENFORCEMENT PROVISIONS.  The bill authorizes modest civil  
          penalties to be imposed if, after having been given notice of  
          noncompliance and 30 days in which to correct a violation, the  
          facility still fails to comply with these provisions.  This bill  
          also requires the Attorney General (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 the  
          bill allows an enforcement action against a covered facility to  
          be brought by a city attorney or county counsel, in addition to  
          the AG, the author may wish to consider clarifying how the list  
          of previous violators will be maintained and kept current to  
          reflect actions brought by an entity other than the AG.


          ARGUMENTS IN SUPPORT:  In support of the bill, NARAL Pro-Choice  
          California writes:


            As a national leader for reproductive freedom, the state  
            of California has numerous laws on the books supporting  
            women and providing assistance for low-income residents.   
            However, many women are unaware of the truly  
            comprehensive support the state has to offer.  This  
            legislation ensures California women receive the  
            information they need to access affordable health care  
            and make the best decisions regarding family planning.


            Distributing a notice of reproductive health services  
            would ensure that women in any reproductive health or  








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            pregnancy counseling facility know that California  
            respects their rights and provides assistance.   
            Disclosing the unlicensed status of a facility allows  
            women to make fully informed decisions.  AB 775, the  
            Reproductive FACT Act, will help ensure that the intent  
            of California's strong laws that protect reproductive  
            freedom is fully realized.


          In support of the bill, the League of Women Voters of California  
          writes:


            AB 775 requires licensed and unlicensed facilities to  
            provide their parents information they need to understand  
            their rights and the full range of medical care available  
            to them so as to make the best decisions regarding family  
            planning.  It also ensures that women are informed that  
            the facility they use is a licensed medical facility that  
            provides actual medical services or is an unlicensed  
            facility that cannot provide the full range of services?


            [A] woman's constitutional right of privacy to make  
            reproductive choices and to have access to a basic level  
            of health care includes all aspects of family planning.   
            The right to make reproductive choices is empty of  
            content if a woman lacks the ability to obtain the  
            services she chooses because she lacks information about  
            her rights, the services available, and the ability of  
            the facility she is in to provide them.


          ARGUMENTS IN OPPOSITION:  The California Catholic Conference  
          (CCC) opposes this bill, stating:


            The bill proposes to regulate the state's pregnancy  
            centers, but in actuality is aimed at discriminating  








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            against those pregnancy centers that hold a pro-life  
            viewpoint.  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.  Because we believe all life is sacred, we  
            support programs which offer medical, economic and  
            emotional support for pregnant women and children, so  
            that they can make life-affirming choices.


          The Committee has received hundreds of letters expressing  
          opposition to the bill from operators of pregnancy centers and  
          their supporters.  For example, Pregnancy Counseling Center  
          writes:


            Women are smart and they know that they have options  
            regarding their pregnancy. Not all pregnant women want a  
            referral to a government agency that funds abortions.  
            Pregnant women seek out abortion-alternative  
            organizations because they do not want to go to an  
            abortion-provider to discuss their options.


          The National Institute of Family & Life Advocates writes in  
          opposition:


            AB 775 basically requires non-profit organizations that  
            lawfully promote a woman's right to make a fully informed  
            decision about her pregnancy to announce what services  
            they do not provide and force them to refer in violation  
            of their conscience.  A law such as this, while targeted  
            at pro-women groups, would set a terrible precedent and  
            its rational could be used against many other forms of  
            speech? There are alternative methods to spread the word  
            about public healthcare programs other than to force one  
            type of organization, targeted for their religious and  








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            philosophical beliefs, to advertise them.  There are  
            other laws that are in effect, such as laws against fraud  
            and deceptive practices, which are available to remedy a  
            situation where deceptive practices are in fact  
            occurring.  Forcing speech is not the solution. 


          REGISTERED SUPPORT / OPPOSITION:




          Support


          Black Women for Wellness (co-sponsor)


          NARAL Pro Choice California (co-sponsor)


          ACT for Women and Girls


          American Congress of Obstetricians and Gynecologists
          American Nurses Association, California


          California Association for Nurse Practitioners
          California Council of Churches IMPACT
          California Latinas for Reproductive Justice
          California Pan-Ethnic Health Network


          California Primary Care Association
          California Women's Law Center
          California Women Lawyers
          The Center on Reproductive Rights and Justice









                                                                     AB 775


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          Forward Together
          Fresno Barrios Unidos


          League of Women Voters of California
          Maternal And Child Health Access
          National Abortion Federation
          National Council of Jewish Women, California


          Planned Parenthood Affiliates of California
          Religious Coalition for Reproductive Choice, California
          Western Methodist Justice Movement
          Women's Community Clinic
          Women's Health Specialists


          Opposition


          Alliance Defending Freedom


          Birth Choice


          California Catholic Conference


          California Right to Life Committees, Inc.


          Caring for Women Pregnancy Resource Center


          Conejo Pregnancy Center










                                                                     AB 775


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          Fallbrook Pregnancy Resource Center


          Horizon Pregnancy Clinic


          Life Choices


          Network Medical Women's Center


          Pacific Justice Institute Center for Public Policy


          Pregnancy Care Center


          Pregnancy Care Clinic


          Pregnancy Counseling Center


          Whittier Life Centers, Inc.


          Women's Pregnancy Care Clinic


          Hundreds of Individuals




          Analysis Prepared by:Eric Dang and Anthony Lew / JUD. / (916)  
          319-2334










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