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Pregnancy Clinics Must Tell Women About Abortion Options, 9th Cir. Rules

By Casey C. Sullivan, Esq. on October 19, 2016 | Last updated on March 21, 2019

A Ninth Circuit panel recently upheld a new California law that requires licensed pregnancy clinics to inform women about publicly funded family planning services, including contraception and abortion services. The law was passed after the state legislature found that women often did not know about the public services available to them and that religious clinics misled them about their options.

The court rejected religious clinics' contention that the law violated their right to free speech and freedom of religion last week, ruling that the state's disclosure law did not violate the clinics' rights.

California's FACT Act

More than 200 pregnancy clinics affiliated with religious institutions opposed to abortion sued the state to block the implementation of the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act, or "FACT Act." The FACT Act requires licensed clinics to tell women about the availability of publicly funded family-planning services and requires unlicensed clinics to inform women that they are, indeed, unlicensed.

To be considered as a licensed clinic you must offer at least two of six specified services:

  1. The facility offers obstetric ultrasounds, obstetric sonograms, or prenatal care to pregnant women.
  2. The facility provides, or offers counseling about, contraception or contraceptive methods.
  3. The facility offers pregnancy testing or pregnancy diagnosis.
  4. The facility advertises or solicits patrons with offers to provide prenatal sonography, pregnancy tests, or pregnancy options counseling.
  5. The facility offers abortion services.
  6. The facility has staff or volunteers who collect health information from clients.

Unlicensed clinics are those that offer any two of the above, with the exclusion of abortion services (5) or contraception provision or counseling (2). As Ken White notes at Popehat, the law could force clinics that offer only counseling and pregnancy testing to inform their clients of contraception services. Which is exactly the point, as the legislature, in White's words "explicitly targeted the law at 'crisis pregnancy centers,' which the Legislature claims 'pose as full-service women's health clinics, but aim to discourage and prevent women from seeking abortions.'"

Intermediate Scrutiny Applies

The law simply requires clinics to provide notice that "informs the reader only of the existence of publicly-funded family-planning services," Judge D.W. Nelson wrote for the court. "It does not contain any more speech than necessary, nor does it encourage, suggest, or imply that women should use those state-funded services."

The court characterized the law as a content-based, view-point neutral regulation. As such, it was entitled to intermediate scrutiny, the court found, despite the Supreme Court's recent ruling on outdoor signage in Reed v. Town of Gilbert, Arizona. There, the Supreme Court wrote that "content-based laws... are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to service compelling state interests."

However, that doesn't require strict scrutiny for all content-based restrictions, the Ninth said. In the context of abortion-related disclosure cases, many courts have applied intermediate scrutiny, including the Fifth Circuit, Eighth, and the Ninth itself.

The court reviewed the clinic's First Amendment claims under intermediate scrutiny, then, as a regulation on professional speech.

The notice requirement survives under intermediate scrutiny, the court found, since "California has a substantial interest in the health of its citizens, including ensuring that its citizens have access to and adequate information about constitutionally-protected medical services like abortion," and the FACT Act was narrowly drawn to meet that interest.

As for the group's Free Exercise claims, the Court had less to say, noting briefly that the FACT Act was a "neutral law of general applicability," subject to only rational basis review, a test it easily passed.

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