By Barbara Leonard, Courthouse News
WASHINGTON (CN) – The U.S. Supreme Court agreed Monday to decide whether California can force pregnancy clinics to discuss abortion options with patients.
Signed into law two years ago by California Gov. Jerry Brown, the Freedom, Accountability, Comprehensive Care and Transparency Act (FACT) requires licensed health centers to disseminate information to women regarding state programs that provide immediate free or low-cost family planning services, prenatal care and abortions.
Additionally, the law requires unlicensed centers to expressly indicate they are not licensed as medical facilities in California.
Three groups led by the National Institute of Family and Life Advocates brought a challenge of the scheme in federal court, alleging violations of their free-speech rights.
They petitioned the Supreme Court for certiorari after losing their battle for an injunction against the law last year at the Ninth Circuit.
That ruling said the law does not discriminate against religious-based groups, nor does it interfere with free speech rights.
“We reject appellants’ arguments that they are entitled to a preliminary injunction based on their free speech claims,” U.S. Circuit Judge Dorothy Nelson wrote for a three-judge panel. “The act is a content-based regulation that does not discriminate based on viewpoint.”
Nelson also found no evidence suggesting that the clinics would succeed on the merits. This test arises out of Winter v. Natural Resources Defense Council Inc., which establishes four factors for determining whether a preliminary injunction should be issued.
“Because appellants cannot show a likelihood of success on the merits or ‘serious questions’ going to the merits of their First Amendment claims, we need not discuss the remaining Winter factors,” Nelson said.
Despite losing their appeal for an injunction, U.S. District Judge John Houston refused last month to dismiss the case.
The clinics are represented by David Cortman with Alliance Defending Freedom.
Kevin Theriot, a senior counsel for the group, called it “unthinkable” on Monday for a government to make pregnancy centers provide free advertising for abortions.
“Information about abortion is just about everywhere, so the government doesn’t need to punish pro-life centers for declining to advertise for the very act they can’t promote,” Theriot said in a statement.
California Deputy Solicitor General Joshua Klein represents the state.
“Information is power, and all women should have access to the information they need when making personal healthcare decisions,” California Attorney General Becerra said in a statement. “The Reproductive FACT Act ensures that women in California receive accurate information about their healthcare options, including whether a facility is a licensed medical provider. The California Department of Justice will do everything necessary to protect women’s healthcare rights.”
Per its custom, the U.S. Supreme Court did not issue any statement Monday in taking up the case.
California’s law requires clinics to distribute the information about abortions in one of three ways: posting it at the clinic, printing and handing out information to patients, or by posting the information online.
The law authorizes the state attorney general, county counsel or city attorney to sue facilities that fail to comply. Health centers cannot be criminally prosecuted for violating the act, however, and are only subject to civil penalties.
Violators face $500 fines for a first offense and $1,000 thereafter.
Other clinics sued to block the law in Northern California, but their appeals to the Ninth Circuit were rejected.
Alliance Defending Freedom is casting its challenge in commercial terms, describing abortion providers as an industry being propped up by the government.
“Planned Parenthood, which makes millions from abortion, deceives women into believing that abortion is their only choice,” Elissa Graves, one of the group’s attorneys, said in a statement. “Pregnancy care centers, which provide their care for free, were established specifically to help women understand that they have the choice of life for their children, and that they will be there to help them through their pregnancies.”