BILL ANALYSIS Ó
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
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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.
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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.)
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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
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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
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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
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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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