BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON HEALTH
                          Senator Ed Hernandez, O.D., Chair

          BILL NO:                    AB 775    
           --------------------------------------------------------------- 
          |AUTHOR:        |Chiu and Burke                                 |
          |---------------+-----------------------------------------------|
          |VERSION:       |May 4, 2015                                    |
           --------------------------------------------------------------- 
           --------------------------------------------------------------- 
          |HEARING DATE:  |June 24, 2015  |               |               |
           --------------------------------------------------------------- 
           --------------------------------------------------------------- 
          |CONSULTANT:    |Melanie Moreno                                 |
           --------------------------------------------------------------- 
          
           SUBJECT  :  Reproductive FACT Act.

         SUMMARY  :1.  Enacts the Reproductive Freedom, Accountability, Comprehensive  
          Care, and Transparency Act and requires clinics and other  
          facilities that provide family planning or pregnancy-related  
          services to provide specified notices to clients.
          
          Existing law:
          1)Requires the Department of Public Health (DPH) to inspect and  
            license health facilities, including but not limited to  
            clinics.

          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.  Provides for exemptions for  
            community or free clinics that are operated on separate  
            premises from the licensed clinic and are only open for  
            limited services of no more than 20 hours per week (also known  
            as intermittent clinics).

          3)Authorizes DPH to take various types of enforcement actions  
            against a primary care clinic that has violated state law or  
            regulation, including imposing fines, sanctions, civil or  
            criminal penalties, and suspension or revocation of the  
            clinic's license.

          4)Grants a specific right of privacy under the California  
            Constitution and provides that the right to have an abortion  
            may not be infringed upon without a compelling state interest.








          AB 775 (Chiu and Burke)                           Page 2 of ?
          
          
          This bill:
          1)Enacts the Reproductive Freedom, Accountability, Comprehensive  
            Care, and Transparency Act (Reproductive FACT Act).

          2)Defines a "licensed covered facility," for the purposes of the  
            Reproductive FACT Act, as a licensed clinic or an intermittent  
            clinic operating under a primary care 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;
                  d)        The facility advertises or solicits patrons  
                    with offers to provide prenatal sonography, pregnancy  
                    tests, or pregnancy options counseling.
                  e)        The facility offers abortion services; or, 
                  f)        The facility has staff or volunteers who  
                    collect health information from clients.

          3)Defines an "unlicensed covered facility," for the purposes of  
            the Reproductive FACT Act, as a facility that is not licensed  
            and does not have a licensed medical provider on staff or  
            under contract who provides or directly supervises the  
            provision of all of the services, 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; or,
                  d)        The facility has staff or volunteers who  
                    collect health information from clients.

          4)Specifies this bill does not apply to a clinic directly  
            conducted, maintained, or operated by the United States or any  








          AB 775 (Chiu and Burke)                           Page 3 of ?
          
          
            of its departments, officers, or agencies; or, 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 (FamilyPACT).

          5)Requires a licensed covered facility to disseminate to clients  
            on site the following notice in English and in the primary  
            threshold languages for Medi-Cal beneficiaries as determined  
            by DHCS for the county in which the facility is located:

            "California has public programs that provide immediate free or  
            low-cost access to comprehensive family planning services  
            (including all FDA-approved methods of contraception),  
            prenatal care, and abortion for eligible women. To determine  
            whether you qualify, contact the county social services office  
            at [insert the telephone number]."

          6)Permits the notice to be combined with other mandated  
            disclosures, but requires it be disclosed through one of the  
            following methods:

                  a)        A public notice posted in a conspicuous place  
                    where individuals wait that may be easily read by  
                    those seeking services from the facility. Requires the  
                    notice to be at least 8.5 inches by 11 inches and  
                    written in no less than 22-point type; 
                  b)        A printed notice distributed to all clients in  
                    no less than 14-point type; or,
                  c)        A digital notice distributed to all clients  
                    that can be read at the time of check-in or arrival,  
                    in the same point type as other digital disclosures.  
                    Requires a printed notice be available for all clients  
                    who cannot or do not wish to receive the information  
                    in a digital format.

          7)Requires an unlicensed covered facility to disseminate to  
            clients on site and in any print and digital advertising  
            materials including Internet Web sites, the following notice  
            in English and in the primary threshold languages for Medi-Cal  
            beneficiaries as determined DHCS for the county in which the  
            facility is located: 

            "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."








          AB 775 (Chiu and Burke)                           Page 4 of ?
          
          

          8)Requires the onsite notice for unlicensed covered facilities  
            to be a sign at least 8.5 inches by 11 inches and written in  
            no less than 48-point type, and to be posted conspicuously in  
            the entrance of the facility and at least one additional area  
            where clients wait to receive services.  

          9)Requires the notice in the advertising material for unlicensed  
            covered facilities to be clear and conspicuous. Defines "clear  
            and conspicuous" to mean in larger point type than the  
            surrounding text, or in contrasting type, font, or color to  
            the surrounding text of the same size, or set off from the  
            surrounding text of the same size by symbols or other marks  
            that call attention to the language.

          10)Makes covered facilities that fail to comply with the  
            Reproductive FACT Act liable for a civil penalty of $500 for a  
            first offense and $1,000 for each subsequent offense. Permits  
            the Attorney General (AG), city attorney, or county counsel to  
            bring an action to impose a civil penalty after:

                  a)        Providing the covered facility with reasonable  
                    notice of noncompliance, which informs the facility  
                    that it is subject to a civil penalty if it does not  
                    correct the violation within 30 days from the date the  
                    notice is sent to the facility; and,
                  b)        Verifying that the violation was not corrected  
                    within the 30-day period.

          11)Requires any penalty resulting from an action brought by the  
            AG to be deposited into the General Fund.  Requires the  
            penalty, if the action is brought by a city attorney, to be  
            paid to the treasurer of the city in which the judgment is  
            entered. Requires the penalty, if the action is brought by a  
            county counsel, to be paid to the treasurer of the county in  
            which the judgment is entered.

          12)Makes the provisions of the Reproductive FACT Act severable,  
            and prohibits, if any provision of the Act or its application  
            is held invalid, that invalidity from affecting other  
            provisions or applications that can be given effect without  
            the invalid provision or application.

           FISCAL  
          EFFECT  :  This bill is keyed non-fiscal








          AB 775 (Chiu and Burke)                           Page 5 of ?
          
          

           PRIOR  
          VOTES  :  
          
           ----------------------------------------------------------------- 
          |Assembly Floor:                     |49 - 26                     |
          |------------------------------------+----------------------------|
          |Assembly Judiciary Committee:       | 7 - 3                      |
          |------------------------------------+----------------------------|
          |Assembly Health Committee:          |12 - 5                      |
          |                                    |                            |
           ----------------------------------------------------------------- 
           
          COMMENTS  :
          1)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 that helps them  
            make decisions and access financial support at the sites where  
            they seek care. It is in the best interest of the state,  
            patients and providers that women are aware of available  
            assistance for preventing, continuing or terminating a  
            pregnancy. According to the Department of Health Care  
            Services, the Affordable Care Act expansion has made millions  
            of Californians, 53 percent of them women, newly eligible for  
            Medi-Cal. It is also critical that women know whether they are  
            receiving care from licensed medical professionals when they  
            are making important reproductive health decisions. 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.
            
          2)Unintended pregnancies.  Almost half of all pregnancies in  
            California are unintended.  According to a 2014 Guttmacher  
            Institute document titled "State Facts About Unintended  
            Pregnancy: California," an extensive body of research links  
            births resulting from unintended or closely spaced pregnancies  
            to adverse maternal and child health outcomes and myriad  
            social and economic challenges. Economically disadvantaged  
            women are disproportionately affected by unintended pregnancy  
            and its consequences.  In 2008, the  unintended pregnancy rate  








          AB 775 (Chiu and Burke)                           Page 6 of ?
          
          
            among women with incomes lower than the federal poverty level,  
            at 137 per 1,000, was more than five times as high as the rate  
            among women with incomes greater than 200 percent of poverty  
            (26 per 1,000).

          3)Crisis pregnancy centers.  According to a 2011 report by the  
            Public Law Research Institute of UC Hastings College of the  
            Law, CPCs are pro-life (largely Christian belief-based)  
            organizations that offer a limited range of free pregnancy  
            options, counseling, and other services to individuals that  
            visit a center. CPCs are local non-profit organizations,  
            generally receiving substantial funding and resources from at  
            least one large pro-life umbrella organizations such as: Care  
            Net, International Heart Beat, and the National Institute of  
            Family and Life Advocates. CPCs typically do not offer  
            services that conflict with pro-life pregnancy options, like  
            abortion referrals or procedures. In contrast, full-service  
            organizations that provide pregnancy-related services offer a  
            wider variety of services including administering medical  
            tests, performing medical procedures (including abortions),  
            and providing counseling in pregnancy options. At least 228  
            CPCs exist in California and approximately 2,500 exist  
            nationwide. CPC networks claim that centers collectively  
            extended pregnancy services to approximately 1.8 million women  
            between 2008 and 2013.

          4)University of California, Hastings College of Law research  
            report.  In the fall of 2009 the Assembly Business,  
            Professions and Consumer Protection Committee, concerned that  
            CPCs throughout California were disseminating medically  
            inaccurate information about pregnancy options available in  
            the state, requested a report by the University of California,  
            Hastings College of Law regarding CPCs' practices and  
            potential legislative options for regulating them.  Issued in  
            April 2011 and updated in June 2015, "Pregnancy Resource  
            Centers:  Ensuring Access and Accuracy of Information,"  
            discusses several options for regulation of CPCs, ranging from  
            creating new regulations, leveraging existing regulations  
            aimed specifically at medical services, as well as creating a  
            new statute.  Because approaches that have treated CPCs and  
            full-service pregnancy centers differently have been  
            challenged as violating the First Amendment, the report  
            concludes that the best approach to a statutory change would  
            regulate all pregnancy centers, not just CPCs, in a uniform  
            manner.








          AB 775 (Chiu and Burke)                           Page 7 of ?
          
          

          5)Policies in other locales. The City of New York enacted  
            regulations in 2011 and Montgomery County, Maryland adopted a  
            resolution in 2010 requiring CPCs without medical staff to  
            post signage indicating that they do not have a licensed  
            medical professional on staff and that pregnant women are  
            encouraged to consult with a licensed health care provider.   
            The City of New York's regulations also required CPCs to  
            disclose whether or not it provides referrals for abortions,  
            emergency contraception, and prenatal care.  In 2014, an  
            appeals court overturned those provisions and the requirement  
            that CPCs tell clients that New York City health officials  
            recommend that pregnant women consult a licensed healthcare  
            provider, but upheld the medical staff notification piece. The  
            City and County of San Francisco passed a false advertising  
            ordinance aimed at CPCs, called the Pregnancy Information and  
            Protection Ordinance, which was challenged by CPC owner in  
            court as a violation of free speech.  The ordinance was upheld  
            by a federal court earlier this year. 
          
          6)Support.  Black Women for Wellness and NARAL Pro-Choice,  
            California co-sponsors of this bill, and numerous other  
            organizations, including, California Council of Churches  
            IMPACT, California Latinas for Reproductive Justice, Maternal  
            and Child Health Access, and Planned Parenthood, California,  
            state that this bill will enable women to seek the care they  
            wish to obtain and providing context for counseling given at  
            unlicensed facilities.  They also state that distributing a  
            notice of reproductive health services would ensure that women  
            in any reproductive health or pregnancy counseling facility  
            know that California respects their rights and provides  
            assistance. The California Primary Care Association (CPCA)  
            states this bill will protect patients by allowing them to  
            fully understand their rights when it comes to their  
            reproductive freedom and to not be deceived by organizations  
            whose sole purpose is to provide them with a biased view that  
            does not allow them to make their own informed choice.  CPCA  
            notes that many of their community clinics and health centers  
            grew out of the women's movement and their members believe a  
            women's right to choose is a fundamental health right that  
            must be protected. The American Nurses Association, California  
            (ANA\C) writes that all California residents should have  
            access to reproductive health services, and more than 700,000  
            California women become pregnant every year, approximately  
            half of them unintentionally.  ANA\C states thousands of women  








          AB 775 (Chiu and Burke)                           Page 8 of ?
          
          
            do not know the legal options they have, or the funding  
            resources available to them, and this bill will help ensure  
            that pregnant women receive the information they need to make  
            an informed decision. Forward Together states that women in  
            California face a threat from manipulative crisis pregnancy  
            centers which pose as comprehensive reproductive health  
            centers, but are, in fact, anti-choice organizations that  
            target women with the goal of blocking them from considering  
            abortion as an option and using proven contraceptive methods.   
            Forward Together contends that CPCs use false and misleading  
            advertising to appeal to women, who think they may be pregnant  
            and are looking for comprehensive reproductive health care,  
            and then manipulate and shame these women by peddling  
            medically inaccurate information about abortion and  
            contraception.

          7)Opposition.  The California Catholic Conference (CCC) states  
            that on its surface, the bill proposes to regulate the state's  
            pregnancy centers, but in actuality is aimed at discriminating  
            against those pregnancy centers that hold a pro-life  
            viewpoint.  CCC contends that such unfair legislation may  
            discourage women from getting the assistance that they need  
            and deserve as well as expose many of these pregnancy centers  
            to needless criminal or civil sanctions for failure to comply.  
             CCC concludes that because they believe all life is sacred,  
            they support programs which offer medical, economic and  
            emotional support for pregnant women and children, so that  
            they can make life-affirming choices. The California Right to  
            Life Committee, Inc. (CRLC) states that, if enacted, it could  
            set a precedent for many other businesses that are not like or  
            appreciated by one group in society which could bring a law  
            suit against another business, company, or agency.  CRLC asks  
            us to consider car dealerships:  what if they were to be seen  
            as anti-environmental with misleading advertising, selling too  
            many cars, and making citizens not anxious to take high speed  
            rail?  CRLC asks: would it not be possible that the California  
            High Speed Rail Authority require that car dealerships  
            advertise High Speed Rail locations, schedules, and fees?   
            CRLC argues the provisions of this bill would not be best  
            practice for the car industry any more that it would be for  
            pro-life pregnancy centers to have to promote services which  
            they consider morally reprehensible.
            
           SUPPORT AND OPPOSITION  :
          Support:  








          AB 775 (Chiu and Burke)                           Page 9 of ?
          
          
          Attorney General Kamala Harris (co-sponsor)
          Black Women for Wellness (co-sponsor)
          NARAL Pro-Choice California (co-sponsor)
          ACT for Women and Girls
          Alameda County Board of Supervisors
          Alameda County Public Health Department
          American Congress of Obstetricians and Gynecologists District IX
          American Nurses Association\California
          Anti-Defamation League
          California Association for Nurse Practitioners
          California Church IMPACT
          California Family Health Council
          California Latinas for Reproductive Justice
          California Nurses Association
          California Pan-Ethnic Health Network
          California Primary Care Association
          California Religious Coalition for Reproductive Choice
          California Women Lawyers
          California Women's Law Center
          Center on Reproductive Rights and Justice, University of  
                    California, Berkeley School of Law
          Citizens for Choice
          City and County of San Francisco
          City and County of San Francisco Department of Public Health
          City of Berkeley
          City of Los Angeles Mayor Eric Garcetti
          City of West Hollywood 
          Feminist Majority
          Forward Together
          Fresno Barrios Unidos
          League of Women Voters of California
          Maternal and Child Health Access
          National Center for Youth Law
          National Council of Jewish Women California
          National Health Law Program
          Planned Parenthood Affiliates of California
          San Francisco Women's Political Committee
          Unite for Reproductive and Gender Equity
          Western Methodist Justice Movement
          Women's Community Clinic
          
          Oppose:   
          Alternatives Pregnancy Center
          California Catholic Conference
          California Right to Life Committee








          AB 775 (Chiu and Burke)                           Page 10 of ?
          
          
          California, Concerned Women for America
          Capitol Resource Institute
          Marin Pregnancy Clinic
          National Institute of Family and Life Advocates
          Open Arms Pregnancy Center
          Numerous individuals
                                      -- END --