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California’s Pro-Life Battle: Defeat in the Appeals Court, a Focus on the Future
NEWS ANALYSIS on the aftermath of the Reproductive FACT (Freedom, Accountability, Comprehensive Care and Transparency) Act.
By Elisabeth Deffner
SACRAMENTO, Calif. — Virtually from the moment California Gov. Jerry Brown signed Assembly Bill 775 into law in October 2015, battle was being waged to strike down the so-called “Reproductive FACT (Freedom, Accountability, Comprehensive Care and Transparency) Act.”
Some California municipalities agreed not to enforce the law while legal challenges to it were pending — but not Los Angeles. City Attorney Mike Feuer made headlines in the spring by sending letters to six pregnancy clinics, urging compliance with the law — despite the fact that there was no evidence they were not complying already.
The law requires every licensed facility in the Golden State to inform clients that the state has free or low-cost programs offering comprehensive “family-planning services,” including abortion.
That means every pregnancy clinic in the state, regardless of religious affiliation.
Pro-life clinics concerned about their First Amendment rights are now in a position of indirectly referring women to abortion providers or facing debilitating fines ($500 for the first offense and $1,000 for each subsequent offense).
One Los Angeles clinic that did not comply with the law had to decide which price to pay after the city attorney’s office filed suit under a state law that carries a possible $2,500 daily penalty; the center had missed an Aug. 14 deadline to correct violations. Within two weeks, the Los Angeles Times reported that the center agreed to cooperate with the Reproductive FACT Act, despite its pro-life mission.
“The government is forcing nonprofit organizations to promote abortion in contravention of the reason that these organizations exist,” said Alliance Defending Freedom (ADF) Senior Counsel Matt Bowman.
“If the government can force you to recite a message that you disagree with, then the First Amendment loses much of its power.”
Shackling the Pro-Life Movement
California isn’t the only state — or even the first — to initiate legislation like this. The ADF has fought similar legislation in seven states, winning three cases (two in Illinois are still pending).
But a few weeks ago, the organization lost its case in the Golden State. On Oct. 14, the 9th Circuit Court of Appeals upheld the Reproductive FACT Act — but already, the ADF, which represented three centers in the suit, has begun the appeal process.
“We have won cases and lost cases in California; we’ve taken cases from this 9th Circuit up to the Supreme Court and won them,” said Bowman.
“We know this is a national battle, a battle of a period of years. We’re prepared to protect freedom of speech in a long game of litigation and advocacy for pro-life organizations.”
To Kathleen Eaton Bravo, founder of Birth Choice (now Obria Medical Clinics), the court decision was no surprise —nor was the passage of the law in the first place.
“I knew it would pass [last year]. I knew ADF and other groups would come in and fight it, and I prayed they would win,” she said. “I was totally sad when I read that the 9th Circuit Court upheld it.
“But, of course, it won’t end there.”
When she says that, Eaton Bravo is not only saying that she is confident an appeal will be undertaken; she is also saying that the attack on pro-life centers and clinics will not stop with the Reproductive FACT Act. After all, on Sept. 30, Brown signed Assembly Bill 1671 into law — outlawing the distribution of “secret recordings involving health care conversations.” (Remember, David Daleiden’s Center for Medical Progress, which created and released the undercover videos revealing Planned Parenthood’s sale of aborted baby organs, is based in southern California.)
A No-Win Situation
In October, Focus on the Family founder James Dobson wrote a piece in Charisma magazine calling for those who run California pregnancy clinics to refuse to comply with the unjust law, but the situation is not that simple. The Reproductive FACT Act is the law — at least for now — and if pro-life clinics and centers do not comply with it, that could lead to repercussions greater than heavy fines or jailing. In some ways, the Reproductive FACT Act was a long time coming, Eaton Bravo added. In 2014, Google began removing web ads for crisis-pregnancy centers after an “analysis” by NARAL Pro-Choice America found that many pro-life pregnancy centers used keywords that a pregnant woman might use to find an abortion provider.
NARAL has also launched a series of state undercover “investigations,” in which young women are sent into pro-life pregnancy centers and their experiences are used to smear clinics as “a growing threat to women’s health” — in other words, non-referrers for abortion.
“They want one thing: our medical license. If they pull my medical license in the state of California, I will never get another medical license,” Eaton Bravo explained.
That was the conclusion the Sacramento Life Center came to as well. The 44-year-old clinic had not posted the required referral sign until early November 2016 — and it did so under duress.
“Some of our grantors were going to pull money from us,” said executive director Marie Leatherby — which would have resulted in the center’s $600,000 annual budget being slashed by about a fifth. “NARAL was telling them we were law-breakers.
“We tried for a long time not to post, but we had a lot of ‘plants’ come in to harass us. The Sacramento Bee was coming in. We were really pressured.”
After the Sacramento Life Center board decided to comply with the law, Leatherby went to see a priest, who recommended that the center post a disclaimer.
The disclaimer states, “We are a state-licensed facility and, as such, required by the state of California to post the following notice, but we consider this law to be a violation of the U.S. Constitution and contrary to our mission. We’re only complying under duress, and the law is under litigation.”
This doesn’t mean all is lost, Eaton Bravo pointed out.
“I put the sign up,” she said, “but I have six other signs around it: No patient will be turned away for lack of funds, our mission statement … I buried it.”
Eaton Bravo has also tasked front-desk staff at Obria’s California clinics with observing women’s reactions to the sign.
“How many women actually read that, question it and walk out? The number is zero,” she said.
Though the sign may potentially have little impact on California clinics’ client numbers, it is a disturbing attack on the Golden State’s pro-life work, say pro-life advocates.
“It is sad that those whose businesses whose primary aim is ending the life of unborn children in the name of ‘choice’ are not, in fairness to all women, required to inform and refer women in need to the clinics that support a woman’s choice to give birth,” noted Ned Dolejsi, the California Catholic Conference’s executive director.
“We pray that further court review would do right by those who generously offer to accompany women at challenging times — and not force them to violate their very beliefs that motivate their actions.”
And the strength of California’s pro-life pregnancy centers and clinics will be vital for the battle to come.
“It’s a very sad thing that this is where we are today in our country,” Eaton Bravo said, “but the scary thing is: I think this is only the tip of the iceberg.”
Register correspondent Elisabeth Deffner writes from Orange, California.
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