March 7, 2018 Memos

Comprehensive amicus briefs filed in support of the Attorney General of California in NIFLA v Becerra

MEMO

TO: Interested Parties
FROM: NARAL Pro-Choice America
RE: Comprehensive amicus briefs filed in support of the Attorney General of California in NIFLA v Becerra
DATE: March 7, 2018

A diverse array of reproductive health groups, doctors and other medical professionals, and legal experts has filed over a dozen amicus briefs urging the Supreme Court to uphold California’s FACT Act, which provides at-risk pregnant women and their families with important, simple, and timely information crucial to their health by posting minimal notices in the lobby or, in some cases, the advertising of centers whose “primary purpose” is providing “family planning or pregnancy-related services.” The need for this information is especially heightened by the proliferation of fake women’s health centers, which have a long, documented history of masquerading as full-service health clinics and providing false medical information with the goal of preventing women from exercising their rights to abortion, often through deception.

On March 20th, the Court will hear a First Amendment challenge to the FACT Act, led by the National Institute of Family Advocates (NIFLA), who claim that the FACT Act’s neutral disclosures violate the the free speech rights of these fake health clinics. At stake is the ability of these centers to continue deceiving women and the ability of a local or state government provide get pregnant women and their families the information they need before it’s too late.

The following summary includes the range of amicus briefs filed in support of the government. The briefs can be found here.

 

Reproductive Rights and Social Justice Groups

The National Women’s Law Center, the Center for Reproductive Rights, NARAL Pro-Choice America, and 48 other reproductive rights, civil rights, social justice, and consumer advocate organizations detail the systemic, tactical, and intentional deception practiced by fake women’s health centers:

“…many PCs (crisis pregnancy centers) seek to dissuade women from obtaining an abortion or contraception through misinformation, shaming and judging, and delay, among other tactics. Furthermore, the public health concerns posed by PCs are not isolated, unique, or limited to California. Rather, PCs harm women across the country through tactics that are part of a campaign spearheaded by national, multi- million-dollar organizations to attract women seeking the very services PCs do not provide.”

Public Citizen writes about the constitutionality and great importance of disclosure laws, and how the FACT Act’s requirements fit squarely into that established constitutional framework, regardless of the non-profit or ideological status of the centers:

“Under this Court’s precedents, the First Amendment poses no obstacle to such requirements.”

California Women’s Law Center and others discuss the significance of California’s interest in protecting women’s rights – especially disadvantaged and young women’s rights –  to be informed about their medical options in a timely way:

“When it enacted the FACT Act, California also recognized that at the time they believe they may be pregnant, many women and adolescent girls are not aware of the full range of low cost or free options available to them, including options for avoiding unintended pregnancies in the future. California also understood that pregnancy decisions are time sensitive and that it therefore was imperative to ensure that women and adolescent girls who believed they were pregnant and sought pregnancy-related services would be able to obtain information they required to make an informed decision about their situations as expeditiously as possible.”

Black Women for Wellness, Consumer Action, Consumer Federation of California, the Public Good Law Center, and Public Health Law Center detail the targeting deceptive tactics used by fake women’s health centers and targets certain vulnerable communities, and rebuts the argument that fake women’s health centers are subject to less accountability simply because its services are free:

“Accepting NIFLA’s contention that the First Amendment tolerates regulation of false advertising only for paid services would leave government unable to extend protection to low-income citizens who rely on pro bono professional services. The First Amendment does not require such an untenable consequence.”

Equal Rights Advocates, Planned Parenthood Affiliates of California, and others provide significant details about the deceptive tactics of fake women’s health centers and their history in California:

“Present day CPCs have merged the tactic of deliberately adopting names similar to those of comprehensive family planning clinics with the additional strategy of locating themselves next to existing healthcare clinics to confuse women looking for care.”

Planned Parenthood Federation of America and Physicians for Reproductive Health argue that the Ninth Circuit applied the correct standard of judicial scrutiny because the FACT Act should be treated, in legal terms, as professional speech.

“Given the acute risk that States will exercise their police powers to suppress disfavored speech by professionals, only heightened scrutiny suffices to smoke out impermissible state justifications for speech regulation and thereby protect professionals’ right to be free from government-compelled speech or restraints on the free expression of their professional judgment.”

 

Doctors and Other Professionals

The American Academy of Pediatrics, California, the American College of Obstetricians and Gynecologists, and others explain the importance of timely reproductive information and the medical consequences that can result by the type of misinformation and delays caused by fake women’s health centers:

“…a woman who has decided to obtain an abortion but remains pregnant because of delay, whether as a result of cost, misinformation, or otherwise, is exposed to preventable health risks associated with her continued pregnancy. In some cases, remaining pregnant may seriously jeopardize a woman’s health.”

Legal ethicists and prominent law professors debunk NIFLA’s argument that case law related to lawyer regulation applies to the FACT Act.

Social Science Researchers confirm the needs of the women the FACT Act is intended to reach:

“Extensive research has documented the financial and logistical barriers that women face when accessing reproductive healthcare, including lack of insurance.”

Cities, States, and Elected Officials

The National League of Cities, the US Conference of Mayors, and other groups warn that the legal standard NIFLA wants the Court to apply to strike down the FACT Act would create huge, negative consequences for other existing common-sense, factual disclosures and signs, such as:

“Ordinances and statutes that require restaurants to post signs explaining how to provide first aid to choking patrons,” “Ordinances and laws in most states that require landlords to post or otherwise disclose the name and address of the managing agent or owner of residential rental buildings,” and “Ordinances and laws that require businesses selling food to post signs directing employees to wash their hands.”

The City and County of San Francisco, the cities of Oakland, Baltimore, Los Angeles, and New York; and the County of Santa Clara provide specific evidence of fake women’s health centers deception in their respective municipalities:

“In Brooklyn, for example, a pregnancy center operates in the same building as a clinic that provides contraceptive and abortion care, but on a different floor. Someone posing as a clinic employee intercepted a patient outside of the clinic and took her to the pregnancy center instead.”

The states of New York, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Jersey, Oregon, Pennsylvania, Vermont, Virginia, Washington State, and the District of Columbia argue that, despite NIFLA’s claims otherwise, the FACT Act is similar to many other vital, constitutional state disclosures:

“For example, employers must post signs informing employees about public enforcement agencies that provide resources related to minimum-wage requirements, anti-discrimination rules, migrant-worker protections, veteran rights, or workplace-safety rules—even though the employer does not offer these employee-protection services themselves (and may prefer that employees not avail themselves of those services).”

Senator Kamala Harris and other Democratic Members of Congress address the long tradition and utility of disclosures similar to the FACT Act in federal law:

Disclosure requirements, such as those contained in the Act, are pervasive in the law. They serve substantial governmental interests in “protecting consumers” and in “maintaining standards among members of the licensed professions.”

For more information about the case, please visit www.endthelies.com.

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