Anti-abortion clinics challenge new law in state court

A religious nonprofit operating several anti-abortion medical clinics in the Inland Empire has joined several California clinics in a First Amendment battle over a new state law regulating their speech on abortion.

The California Reproductive Freedom, Accountability, Comprehensive Care and Transparency, or FACT Act, requires licensed covered health care facilities inform patients about the state's publicly-funded family planning services.

To do this, the facilities must put up a notice stating that California has "public programs that provide immediate free or low-cost access to comprehensive family planning services ...prenatal care, and abortion for eligible women."

Signed in October, the measure aims to ensure individuals are aware of their health care options, especially pregnant women in need of publicly funded health care services, whose decisions may be time sensitive.

The measure was signed amid the backdrop of reports of clinics throughout the state discouraging women from getting abortions.

The Scharpen Foundation, which does business as ICU Mobile Riverside County, Image Clear Ultrasound Temecula and Go Mobile For Life, filed suit last week in Riverside County Superior Court, claiming the act violates its right to freedom of speech, freedom of assembly and freedom of religion.

The suit states that the act compels the clinic "to speak messages it has not chosen for itself, with which it does not agree, and that detract from, undermine, and interfere with messages it has chosen to speak."

Advocates for Faith and Freedom, along with the conservative American Center for Law and Justice, are representing the plaintiff in the suit against the attorney general and the California Department of Public Health.

"This is one of these cases where yes it's about abortion but it's also about a much bigger picture of liberty," said Robert Tyler, lead attorney for the plaintiff. "Liberty is at stake. Our freedom of speech is at stake."

The attorney general's office could not comment for this story by publication time.

After the Reproductive FACT Act was first signed by Governor Jerry Brown in October, Attorney General Kamala D. Harris released a statement applauding the measure.

"I am proud to have co-sponsored the Reproductive FACT Act, which ensures that all women have equal access to comprehensive reproductive health care services, and that they have the facts they need to make informed decisions about their health and their lives," she said.

Though several non-profit pregnancy crisis centers with religious affiliations have filed federal civil rights lawsuits in Sacramento, San Diego and San Francisco against the attorney general's office, this lawsuit is the first to challenge the measure in state courts.

Tyler said that unlike the U.S. Constitution, the state constitution protects non-misleading commercial and noncommercial speech equally.

Under the California Constitution, the complaint says, "content and viewpoint discrimination, even of commercial speech, is subject to strict scrutiny."

But Margaret M. Russell, a Santa Clara law school professor, said she thinks suing under the state constitution might actually work against the clinic's claims.

Because the California constitution includes a right to privacy provision that has been repeatedly used to support the right to reproductive resources and information, it might be easier to find that the government has a compelling interest to require the disclosure in state court, she said.

Some experts said the lawsuits addressing compelled speech is still largely unclear.

The federal lawsuits will ride on what type of framework the courts apply, said Alan E. Brownstein, a UC Davis constitutional law professor.

For example, if the courts consider the case in light of the May U.S. Supreme Court decision that upheld the New Jersey ban on conversion therapy for minors, it could follow the argument that regulating mental health providers' speech is a constitutionally sound approach, he said. (King v. Christie, 767 F.3d 216 (3d Cir. 2014).

He added that compelled speech in this case is similar to requiring informed consent, because the act requires clinics to alert pregnant women to family planning services.

"The key question should be 'what is the government doing?'" he said.

"Are the messages more accurately characterized as regulating the practice of medicine or trying to communicate the government's ideological positions?"

Because there are plenty of casesin which the Supreme Court has said it is acceptable for a state to require an abortion facility to provide accurate information, the same rule may apply here, said Aaron H. Caplan, a former ACLU attorney and a Loyola Law School constitutional law professor.

Caplan added that most of the times the Supreme Court has found compelled speech unconstitutional were in cases that involved individuals instead of businesses.

He pointed to the court's decision that individuals are not required to recite the pledge of allegiance or that New Hampshire couldn't require citizens to display the state motto on their license plates.

Other First Amendment experts said the cases may be close, as it's debatable whether the disclosure is purely factual.

A series of 9th Circuit cases regarding advertising for minerals and cigarettes might sway a court in the clinics' favor, said Ashutosh A. Bhagwat, a law professor at UC Davis.

The 9th Circuit ruled that even a factual disclosure - requiring companies to disclose a use of minerals from the Democratic Republic of the Congo - was unconstitutional.

In this case, the court said the disclosure had other implications and went beyond the goal of preventing consumer deception. National Association of Manufacturers v. SEC, 748 F.3d 359 (D.C. Cir. 2014).

"On its face, it's just a truthful disclosure, but it does kind of rope these people who are very clearly anti-abortion into - if not encouraging - at least facilitating abortion," he said.

amanda_schallert@dailyjournal.com