SACRAMENTO, Calif. — A new California law that requires licensed crisis-pregnancy centers to post information to access free abortions prompted an immediate legal challenge on First Amendment grounds.
On Oct. 10, the day after Gov. Jerry Brown signed the bill, A.B. 775, two clinics filed suit in federal district courts in Los Angeles and Sacramento, charging that the statute violated their free-speech rights,
The new law “unconstitutionally compels [the plaintiffs] to speak messages that they have not chosen, with which they do not agree, and that distract, and detract from, the messages they have chosen to speak,” read the lawsuit filed by the Pacific Justice Institute, a Christian legal defense organization that represents plaintiffs in cases dealing with religious freedom, the sanctity of human life and parents’ rights.
The lawsuit states that “disseminating the mandated state message, which is inconsistent with plaintiffs’ religious convictions, burdens these clinics’ free exercise of religion, secured under the First Amendment.”
Brad Dacus, the president of the Pacific Justice Institute, confirmed that his lawyers are seeking a preliminary injunction to delay implementation of the controversial regulation until a definitive ruling is obtained. His group filed suit on behalf of A Woman’s Friend Pregnancy Resource Clinic of Marysville and the Crisis Pregnancy Center of Northern California.
While Dacus acknowledged that the 9th Circuit Court of Appeals, which has jurisdiction over federal courts in California, “has not been the friendliest toward religious institutions in the past,” he was optimistic that the clinics would prevail.
“This case deals with government dictating speech to a private religious institution when that speech is totally opposed to what that institution believes and what it stands for,” Dacus told the Register.
“This is a classic example of why we have a First Amendment that limits government intrusion into the freedom of private faith-based entities.”
Catholic dioceses in the state had fought the effort to regulate the clinics’ speech. And the news that Brown signed the bill marked the latest setback for pro-life Californians, who also failed to dissuade the governor from approving a bill that legalized physician-assisted suicide.
Bishop Jaime Soto of Sacramento, the president of the California Catholic Conference, backed the legal challenge to the bill and said Church leaders would continue to support pro-life initiatives in the state.
“The good work of providing hopeful, lifesaving alternatives for women facing an unplanned pregnancy will continue,” said Bishop Soto, in an email response to a request for comment from the Register.
“Let’s be clear: S.B. 775, the so-called ‘Reproductive Facts Act,’ has nothing to do with facts and everything to do with stifling free speech,” he said. “I have every expectation that we will see it challenged in the courts, and I expect that our views will prevail.”
Greg Walgenbach, director of the Office of Life, Justice and Peace for the Diocese of Orange, echoed Bishop Soto’s characterization of the law as an attack on the freedom of faith-based agencies to provide a critical service to women in need.
The clinics “are offering … life-affirming options and care around pregnancy issues,” Walgenbach told the Register.
“They need to continue to offer this service without being forced to provide options that go against their consciences.”
The new law marks a concerted effort by abortion-rights advocates in the state to restrict outreach efforts by crisis-pregnancy centers. Last year, NARAL Pro-Choice America recruited a young woman, Daria Flores, to conduct an undercover investigation of 43 crisis-pregnancy centers in the state. The group then issued a report, which charged that the centers misinformed patients and misrepresented themselves as medical institutions.
“In all her visits to CPCs, Flores said she was never informed that abortion was a safe, legal alternative to childbirth. She was never told that California’s Medi-Cal program covered the cost of reproductive services, including abortion. Nor that time was of the essence,” stated a May 2015 column on the investigation in the Los Angeles Times.
According to press reports, NARAL worked closely with California Attorney General Kamala Harris, a Democrat, to develop language for the statute that would address the First Amendment concerns that helped to stall the passage of similar legislation in other states.
In a statement released after Brown signed the bill into law, Ilyse Hogue, president of NARAL, celebrated the news as a turning point for abortion-rights activists across the nation.
“Anti-choice crisis-pregnancy centers are ground zero in the fight for reproductive freedom, and Gov. Brown and the California Legislature can be proud of leading the first successful statewide effort to ensure that no woman is tricked into walking through doors of a CPC to be manipulated and shamed again,” said Hogue.
The new law features specific regulations for both licensed and unlicensed pregnancy centers that have been established by pro-life religious believers to provide a range of counseling and medical services.
The law directs clinics that are not licensed to offer medical services and do not provide abortions to make that clear in all their promotional materials and in waiting rooms. Licensed clinics must post information that explains they do not provide abortions and that the state of California provides free or low-cost abortions. The new law will take effect Jan. 1, 2016.
According to the new rules, licensed clinics must post the following information: “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].”
NARAL and its supporters contend that this information is needed to protect vulnerable patients.
But the directors of licensed clinics insist that they already abide by state regulations governing their facilities and that they do not misrepresent the services they provide.
“We let people know we don’t provide abortion. But we also want women to know they will not be pressured to choose abortion,” Marie Leatherby, the executive director of the Sacramento Life Center, a licensed crisis-pregnancy center that receives no money from the government but accepts private funds.
If the law survives legal challenges, said Leatherby, clinic staffers may leave if they believe the new rules make them complicit in facilitating abortions.
“The law says we have to hand women a notice, as well as post it in the waiting room and on our website, explaining where they can find out if they qualify for a free abortion,” she told the Register.
The clinic staff called the number that must be included in the posted information and discovered it was “a direct number to Planned Parenthood,” she reported.
She described the new law as “a bully bill” designed to force clinics like hers to violate their missions.
But Katie Short, the legal director of the Life Legal Defense Foundation, suggested that unlicensed clinics would likely be hit hardest by the new law. She pointed to onerous regulations that will burden the efforts of these clinics to market their services in print and in Internet searchs.
“[T]he unlicensed clinics are going to have to totally revamp whatever advertising they do,” Short told the Register.
“They will have to add a 29-word notice saying they are not a medical clinic to all their advertising and brochures,” Short told the Register.
“The print size has to be at least the size of the surrounding type. If the current ad says, ‘Pregnant? Need help? Call Birthright at 888-888-8888 for free counseling,’ they would have to triple the ad size.”
The precise requirements spelled out in the regulations, she predicts, will make it much harder to use Google ads, “because those ads have a very limited allowance for the number of characters.”
The new California law targeting the two groups of crisis-pregnancy centers comes as GOP lawmakers on Capitol Hill have pressed for legislation that would divert federal funds from Planned Parenthood businesses, which provide abortions, to community health centers that do not offer that service.
Kathleen Eaton Bravo, the founder and CEO of Obria, which runs six licensed clinics in southern California, emphasized that pro-life groups in this field were adapting to a changing medical and political environment that could also pose challenges to Planned Parenthood in states where lawmakers embrace pro-life values.
“I started as a pregnancy-resource center,” Bravo recalled.
But almost a decade ago she realized that “the only way we could compete against Planned Parenthood was to become a licensed community clinic and offer services by nurses and doctors that Planned Parenthood is offering, minus contraception and abortion.”
Bravo has never applied for federal Title X funds that flow to Planned Parenthood facilities because in California she would be required to dispense contraception and make abortion referrals.
Bravo confirmed that if her group of six clinics qualified for Title X funds in California, Obria would receive $650,000 annually per clinic in taxpayer dollars.
But Obria’s pro-life values disqualify the six clinics from applying for these funds. And now the new state law, which forces them to post information about abortions, underscores the challenges Obria faces in the state.
“They are trying to weaken those organizations that are helping women resolve their pregnancy issues without having an abortion,” said the Pacific Justice Institute’s Brad Dacus, reflecting on the concerted effort by NARAL and its supporters in the state legislature to secure the new rules governing the pro-life centers.
“The focus of their organization is to promote abortions, encourage abortions and push for funding of abortion. If women continue the trend away from abortions, that weakens their cause and their organization.”
Though Dacus is by no means certain that the legal challenge filed by his organization will overturn the new law, he believes they have a strong case.
“This is like the government mandating that Alcoholics Anonymous post a large sign stating that people can get liquor for free,” he said.
“I think we have a good chance for the courts to see this as a violation of free-speech rights of private institutions throughout state of California.”
Joan Frawley Desmond is the Register’s senior editor.