Opposition Brief — Nat'l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 464 (2017) (No. 16-1140)

FILED

MAY 24 2017

OFFICE OF THE CLERK

Nos. 16-1140, 16-1146, 16-1153

Iu the

Supreme Court of the United States

NATIONAL INSTITUTE OF FAMILY AND LIFE

ADVOCATES, FT AL.,

Petitioners,

Vv.

XAVIER BECERRA, ET AL.,

Respondents.

ON PETITIONS FOR WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE STATE RESPONDENTS

IN OPPOSITION

XAVIER BECERRA

Attorney General of California

EDWARD C. DUMONT

Solicitor General

JOSHUA A. KLEIN*

Deputy Solicitor General

JONATHAN M. EISENBERG

ANTHONY R. HAKL

NOREEN P. SKELLY

Deputy Attorneys General

STATE OF CALIFORNIA

DEPARTMENT OF JUSTICE

455 Golden Gate Ave., Suite 11000

San Francisco, CA 94102

(415) 703-2543

joshua.klein@do}.ca.gov

*Counsel of Record

A WOMAN’S FRIEND PREGNANCY RESOURCE CLINIC,

ET AL.,

Petitioners,

v.

XAVIER BECERRA,

Respondent.

LIVINGWELL MEDICAL CLINIC, INC., ET AL.

Petitioners,

v.

XAVIER BECERRA, ET AL.,

Respondents.

QUESTION PRESENTED

Whether three district courts abused their discre-

tion in deciding not to preliminarily enjoin, before

discovery in each case and before any record of en-

forcement, the implementation of a California statute

that (1) requires licensed medical clinics to notify pa-

tients that information about state-funded prenatal

care, family planning, and abortion services may be

accessed by calling a county health department

phone number and (2) requires facilities providing

services such as pregnancy testing and ultrasound

imaging to inform clients if the facility does not em-

ploy a licensed medical professional.

il

TABLE OF CONTENTS

Page

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32

TABLE OF AUTHORITIES

CASES

Barker v. Capotosto

875 N.W. 2d 157 Towa 2016)...............cccccccsees-see- 20

Central Hudson Gas & Elec. Corp. v.

Pub. Serv. Comm’n of N_Y.

PL | 8. LTT 20, 21

Central Radio Co. v. City of Norfolk

ee re Ee BE iitectecine neccrcescecsstescorenss 21

Centro Tepeyac v. Montgomery County

5 F. Supp. 3d 745 (D. Md. 2014)........... iscaeeianaiasaiel 26

Centro Tepeyac v. Montgomery County

722 F.3d 184 (4th Cir. 2013)

tS SEE S IIASA Ee ee 13, 26

Church of the Lukumi Babalu Aye, Inc.

v. City of Hialeah

Be Sls ee ED ecnscicsictciccsvesccacesess 14, 28, 29, 30

Committee to Defend Reproductive

Rights v. Myers

EES eee ee ei 2

Employment Div., Dep't of Human Res.

of Ore. v. Smith

SES re me ao Lae 28, 29

Evergreen Ass'n, Inc. v. City of New York

740 F.3d 233 (2d Cir. 2014).......... 13, 22, 24, 25, 26

lV

TABLE OF AUTHORITIES

(continued)

Page

Expressions Hair Design v.

Schneiderman

Se ceiastilneeneiiabanis 20

Free Speech Coalition, Inc. v. Attorney

General

— fe BP TL eee ererere 21

Gonzales v. Carhart

I I a as ccrisiinoeparinrabinainiebelaihindions 1

In re Button

I i ea alee ranstnenslansn 18, 19

In re Primus

I I I on tii chenecemenneniannaa 18, 19

Kiser v. Kamdar

831 F.3a 764 (Gth Cir. 2016) ...........cecsescccscceseccoees 20

Lowe v. SEC

a coleslcienshhacastubaaiaiein 16

Moore-King v. County of Chesterfield

TOB F.Be CEO CEE CEP. BOUG) .cccccccccescctec0ssecceccese 20

Norton v. City of Springfield

BOD FS GLE CIE CAP. BORG) ce sccccssscecscccscovcsecs sce: 21

Pickup v. Brown

TAO F.3d 1208 (9th Cir. 2014) ......ccccccceseeceseseseeeess 12

Vv

TABLE OF AUTHORITIES

(continued)

Page

Planned Parenthood Minn. v. Rounds

I ee FIG ee Gs BI oie scnessnsssresoscccsessscase 23

Planned Parenthood of Southeastern

Pennsylvania v. Casey

Sy I visi ioicirsccntcasavichmersasvetossases passim

Polk County v. Dodson

i sc ncesic at ehesantibebinenbeniis 20

Pursuing America’s Greatness v. FEC

831 F.3d GOO G).C. Cir. BO1G6) ......0ccccceccccresceseesers. 21

Reed v. Town of Gilbert

Ne Mt SE IIE icicicncnscnscesctscusssnsoses 11, 20, 21

Riley v. National Federation of the Blind

of North Carolina

a I I vc viintiicapoescnestsvespnashebstebietaieos 25

Scharpen Foundation, Inc. v. Becerra

No. RIC1514022 (Riverside Cty.

Super. Ct., filed Nov. 25, 20156)................ccceseenee 31

Stuart v. Camnitz

774 F.3d 238 (4th Cir. 2014)..................-. 18, 22, 23

Tex. Med. Providers Performing

Abortion Servs. v. Lakey

667 F.3d 570 (6th Cir. 2012) .............0....0..0scseceseee 23

vil

TABLE OF AUTHORITIES

(continued)

Page

United Transp. Union v. State Bar of

Michigan

il CEE WOE CIEE oa cies ccnccciguneelcuindaae 19

Wagner v. Garfield Heights

9017 WL 129034 (6th Cir. 2017).......ccccccccesereees 21

Wollschlaeger v. Governor of Florida

848 F.3d 1293 (11th Cir. 2017)

Cte DRED icccncesisicnssttnvincincinivametsignesuasieimeainiaaaliin 18

Zauderer v. Office of Disciplinary

Counsel of Supreme Ct. of Ohio

STE Bes Ge er tack nts tessecksccsscsissciessinsarnnts 21

STATUTES AND REGULATIONS

4B TEBG, BD ccstnsciscconntgesteanrcmnmeminanain 31

Reproductive FACT Act, 2015 Cal.

IE GA Fie ccc ris incnssssixesinccseeasccmeserssoninanin passim

California Business & Professions Code

i Ti ivaccoccecvensssnocrasserscsssliesbnissonhighesiainaiientmeamaaiatel 1

Biss vncncsotessa cs anensssvibaxsipnwiesedanmeisimstateapeaaaaniens 1

shanastioubiaee 1

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TABLE OF AUTHORITIES

(continued)

Page

California Health & Safety Code

ss censnnvennensessorans 1

I cssseseniebiemnsne 2, 3,16

Le sctsnsenmenseinenesnens 17

a ssotanivunsbesonosbons 3

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TEE AO eee 4,6

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California Code of Regulations, Title 16

ce RE 17

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California Code of Regulations, Title 22

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8S ERE EER ee 3

CONS1i{TUTIONAL PROVISIONS

United States Constitution

CCT passim

California Constitution

a a isesmebeneenennonent 31

OTHER AUTHORITIES

Cari Romm, FDA Warning: Stay Away

From “Keepsake” Ultrasounds, The

EE 29

eer

TABLE OF AUTHORITIES

(continued)

Page

Centers for Disease Control, NCHS

Data Brief No. 38 (May 2010).................0c.c0. 000000 19

http://mcap.dhcs.ca.gov/My_MCAP/Impo

rtant_ Information_Applicants.asp ....................... 2

http://www .familypact.org/Get%20Cover

ed/what-does-family-pact-cover ..0......0.-..-cccccccces--s. 2

Rep. of Cal. Assem. Health Comm. on

ee I eS 5

STATEMENT

States play a “significant role ... in regulating the

medical profession.” Gonzales v. Carhart, 550 U.S.

124, 157 (2007). Like other States, California main-

tains a comprehensive system for licensing and regu-

lating healthcare institutions and professionals. See,

e.g., Cal. Bus. & Prof. Code §§ 2000 et seq. (physi-

cians); id. §§ 2700 et seq. (nurses); id. §§ 4000 et seq.

(pharmacists); Cal. Health & Safety Code §§ 1200 et

seq. (clinics). This case concerns disclosures that are

mandated as part of that system by California’s Re-

productive FACT (Freedom, Accountability, Compre-

hensive Care, and Transparency) Act, 2015 Cal.

Stats. ch. 700, codified at Cal. Health & Safety Code

§§ 123470 et seq.

1. Some 700,000 California women become preg-

nant each year, and over half of those pregnancies

are unintended. NIFLA Pet. App. 76a-77a.! The Act

addresses two problems that pregnant Californians

can face.

a. First, many women cannot afford medical care

on their own, and are unaware of the public pro-

grams that are available to them. NIFLA Pet. App.

76a-77a. Medi-Cal and the Medi-Cal Access Program

provide low-cost prenatal care, delivery care, and

1 This brief is a combined response to three petitions.

Citations to a particular petition or lower court document in-

clude the petitioner’s name, abbreviating National Institute for

Family and Life Advocates as NIFLA and A Woman’s Friend as

AWF. Unless otherwise indicated, statutory references are to

the California Health & Safety Code.

2

newborn pediatric care.2, The Medi-Cal Family Plan-

ning, Access, Care, and Treatment (Family PACT)

Program provides family planning services, including

contraception, preconception counseling, limited in-

fertility services, sexually transmitted infection test-

ing and treatment, and cancer screening.* And Medi-

Cal covers abortion services.‘ “[C]are early in preg-

nancy is important,” and “pregnancy decisions are

time sensitive.” NIFLA Pet. App. 77a. The state

Legislature concluded that “[t]he most effective way

to ensure that women quickly obtain the information

and services they need” is to require licensed health

care facilities that are unable to immediately enroll

patients into state-funded programs to advise each

patient at the time of her visit that the programs ex-

ist and give information on how they may be ac-

cessed. /d.

As a result, the Act imposes a notice requirement

on “licensed covered facilitiies].” A “licensed covered

facility” is a clinic licensed under California Health &

Safety Code Section 1204 (covering “primary care”

clinics, “community” clinics, “free” clinics, and “spe-

cialty” clinics such as “surgical” clinics and “alterna-

tive birth center[s]”), whose “primary purpose is

providing family planning or pregnancy-related ser-

vices” and that satisfies two of six enumerated crite-

ria. § 123471(a). The enumerated criteria are that

2 See http://mcap.dhcs.ca.gov/My_MCAP/Important_

Information_Applicants.aspx.

8 See http://www.familypact.org/Get%20Covered/what-

does-family-pact-cover.

4 See Committee to Defend Reproductive Rights v. Myers,

29 Cal. 3d 252 (1981).

3

the facility (1) “offers obstetric ultrasounds, obstetric

sonograms, or prenatal care,” (2) “provides, or offers

counseling about, contraception or contraceptive

methods,” (3) “offers pregnancy testing or pregnancy

diagnosis,” (4) “advertises or solicits patrons with of-

fers to provide prenatal sonography, pregnancy tests,

or pregnancy options counseling,” (5) “offers abortion

services,” and (6) “has staff or volunteers who collect

health information from clients.” § 123471(a).5

The definition’s cross-reference to section 1204

means that licensed covered facilities provide

“(djiagnostic, therapeutic, radiological, laboratory [or]

other services for the care and treatment of patients

for whom the clinic accepts responsibility,” Cal. Code.

Regs. tit. 22, § 75026, and that they must have “a li-

censed physician designated as the professional di-

rector” and have a physician, physician’s assistant, or

registered nurse present whenever medical services

are provided, id. § 75027. The Act excludes from cov-

erage clinics that are operated by the federal gov-

ernment. § 123471(c)(1). The Act also excludes

Medi-Cal Family PACT providers, § 123471(c)(2),

which are capable of enrolling pregnant women in

state-sponsored programs on the spot, NIFLA Pet.

App. 77a.

The Act requires licensed covered facilities to

provide clients with a notice stating that:

5 An off-site, limited-hour “intermittent” clinic affiliated

with a licensed primary care clinic is also a licensed covered fa-

cility if it has the primary purpose of providing family planning

or pregnancy-related services and meets two of these criteria.

§§ 123471(a), 1206(h).

4

California has public programs that

provide immediate free or low-cost ac-

cess to comprehensive family planning

services (including all FDA-approved

methods of contraception), prenatal

care, and abortion for eligible women.

To determine whether you qualify, con-

tact the county social services office at

[insert the telephone number].

§ 123472(a)(1).

Clinics may choose how to provide this infor-

mation: by handing patients a printed notice in 14-

point or larger type, providing a digital notice at the

time of check-in or arrival, or posting a notice in the

waiting room. § 123472(a)(2). Clinics may issue the

notice separately, or combined with other disclosures.

§ 123472(a)(3). However provided, the notice must

be in English and in the county’s primary threshold

languages for Medi-Cal beneficiaries. § 123472(a).

For clinics that choose to comply with the require-

ment by posting the notice in the waiting room, the

posting must be at least 8.5 inches by 11 inches and

written in 22-point or )arger font. § 123472(a)(2)(A).

Violations are punishable by a civil fine of $500

for a first offense or $1,000 for subsequent offenses.

§ 123473(a). No enforcement proceeding may occur

unless the government attorney has previously noti-

fied the facility of noncompliance and given it 30 days

to correct the violation. Id.

b. The second problem the law responds to is

confusion among certain women as to whether the

care and advice they receive comes from medical pro-

fessionals. Licensed medical professionals and insti-

5

tutions are required, by professional standards and

governmental regulation, to give medically accurate

information. Laypeople and unlicensed organiza-

tions, however, are not under similar mandates. The

Legislature reviewed evidence about so-called “crisis

pregnancy centers,” finding that they frequently pro-

vide women with medically inaccurate information.®

At the same time, some facilities offer services such

as pregnancy testing and ultrasound examinations,

which can lead women to believe they are receiving

treatment in a medical setting. These circumstances

caused the Legislature to conclude that it is “vital”

for pregnant women to know if they are receiving

pregnancy-related services from a facility or individ-

ual that is not licensed to provide actual medical

care. NIFLA Pet. App. 77a.

The Act therefore imposes a separate notice re-

quirement on “unlicensed covered facilit[ies].” Such a

facility is one whose “primary purpose” is “providing

pregnancy-related services,” but which is not licensed

by the State and where no licensed medical provider

provides or supervises the clinic’s services.

§ 123471(b). To be treated as an unlicensed covered

facility, the facility must aiso satisfy two or more

from a list of four criteria: (1) offering obstetric ultra-

sounds or sonograms, or prenatal care to pregnant

women; (2) offering pregnancy testing or diagnosis;

(3) advertising or soliciting patrons with offers to

provide prenatal sonography, pregnancy tests, or

“pregnancy options counseling”; or (4) collecting

health information from clients. Jd.

6 See Rep. of Cal. Assem. Health Comm. on A.B. 775,

Apr. 14, 2015, at 3-4.

6

Such a facility must provide to clients, on site

and in any print and digital advertising materials, a

notice stating that:

This facility is not licensed as a medical

facility by the State of California and

has no licensed medical provider who

provides or directly supervises the pro-

vision of services.

§ 123472(b). The notice must be provided in English

and in the county’s primary threshold languages for

Medi-Cal beneficiaries. Jd. The on-site notice must

be on a sign measuring at least 8.5 by 11 inches and

written in 48-point or larger type, and the advertis-

ing-material notice must be “clear and conspicuous,”

§ 123472(b)(2), (3). Violations are governed by the

same penalty provisions that apply to licensed cov-

ered facilities. See p. 4, supra.

2. Before the Act’s January 2016 effective date,

the three sets of petitioners in these cases brought

separate actions, seeking to declare the Act unlawful

under the First Amendment and to enjoin its en-

forcement. In each case, the petitioners requested a

pre-enforcement, pre-discovery preliminary injunc-

tion barring enforcement of the Act against them.

a. The NIFLA plaintiffs filed suit in the U.S.

District Court for the Southern District of California

against California’s Governor and Attorney General,

the County Counsel for San Diego County, and the

City Attorney of E] Cajon. NIFLA Pet. App. 84a-85a.

The complaint states that one plaintiff is licensed by

the State as a community clinic and clinical laborato-

ry and employs licensed physicians and nurses. Id.

at 9la-92a. It provides “[m]edical” and “clinical” ser-

7

vices such as ultrasound examinations, health pro-

vider consultation, information on natural family

planning, and prenatal vitamins, as well as non-

medical services such as peer counseling, maternity

clothes, and support groups. Jd. Another plaintiff is

an unlicensed covered facility, which provides preg-

nancy test kits, educational programs, and maternity

clothes, and which contracts with a licensed provider

to provide ultrasound services at a separate facility.

Id. at 92a. The final plaintiff is a non-profit organi-

zation comprised of both medical and non-medical

centers that provide “pro-life information services” to

women with unplanned pregnancies. Jd. at 93a.

NIFLA’s motion for a preliminary injunction relied

on the plaintiffs’ complaint alone without any sup-

porting declarations. Jd. at 47a n.2. The motion re-

lied exclusively on Free Speech and Free Exercise

arguments, not on additional statutory and state

constitutional claims also included in the complaint.

NIFLA D. Ct. Doc. 3, at 2 n.1 (Motion); NIFLA Pet.

App. 116a-117a.

The district court concluded that the NIFLA

plaintiffs were not likely to succeed on the merits of

their federal constitutional claims. NIFLA Pet. App.

56a-69a. With respect to the licensed facility provi-

sions, the court noted that, while “the Act requires

medical providers to advise their patients of various

types of treatment available so patients are fully in-

formed,” it was “neutral as to any particular view or

opinion,” did not make any recommendation, and did

not preclude plaintiffs from openly expressing disa-

greement. Id. at 61a, 64a-65a. Given that the defini-

tion of “licensed covered facilities” encompassed only

state licensed medical institutions providing specific

medical services, id. at 61a-62a, the court concluded

8

that the licensed facility requirements were no

broader than necessary and survived intermediate

scrutiny, id. at 64a-65a. The court further concluded

that the Act’s unlicensed facility requirements could

withstand “any level of scrutiny,” because disclosure

of a facility’s unlicensed status was narrowly tailored

to achieve the compelling interest of ensuring that

women know whether or not they are receiving care

from a licensed professional. Jd. at 65a-67a. With

respect to the Free Exercise claim, the court found

“no evidence to suggest the Act burdens only conduct

motivated by religious belief.” Jd. at 68a. Rather,

the Act was “neutral,” “generally applicable,” and

constitutional. Jd. Finally, the court found that the

balance of hardships and public policy interests fa-

vored not granting an injunction. /d. at 69a-71a.

b. The AWF plaintiffs sued the California Attor-

ney General in the U.S. District Court for the East-

ern District of California. AWF C.A. E.R. 333

(Amended Complaint). The plaintiffs are three li-

censed covered facilities that are licensed as commu-

nity clinics. Jd. at 335-336. They provide “medical

consultations” and services, including pregnancy

testing, ultrasound examinations, referrals to other

medical providers, and information on prenatal care

and fetal development. Jd. Patients typically mect

with a registered nurse for administration of a preg-

nancy test, estimation of a due date and conception

date, collection of medical history and vital signs,

medical evaluation, advice on collecting health insur-

ance benefits, instruction on prenatal care and devel-

opment, and an ultrasound examination. AWF Pet.

App. 19-20. AWF’s motion for a preliminary injunc-

tion was based on declarations in addition to the

complaint. AWF C.A. E.R. 270-305 (Declarations).

9

The district court concluded that the AWF plain-

tiffs were unlikely to succeed on the merits of their

claims. AWF Pet. App. 44-89. The court reasoned

that the Act’s licensed clinic provision “regulates

speech within the confines of a professional relation-

ship,” id. at 64, providing “information relevant to

patients’ medical decisions,” id. at 61. Although

some cases had interpreted Planned Parenthood of

Southeastern Pennsylvania v. Casey, 505 U.S. 833

(1992), as requiring only rational basis review for

government-mandated speech directed to women

considering whether to terminate a pregnancy, the

court applied the more demanding standard of in-

termediate scrutiny under the professional-speech

doctrine. Id. at 65-68. The licensed facility require-

ment passed that test, given the limited nature of the

required notice and given the State’s interests in

regulating the medical profession, assuring safe

healthcare, and ensuring that pregnant women are

informed of their healthcare options. Jd. at 70-71; id.

at 72 (“The notice provides the information in neutral

language and does not incorporate ideological com-

mentary or convey an opinion. Although it includes

the word ‘abortion,’ the word appears in the context

of a list describing the full spectrum of reproductive

health care services available in California.”). In-

deed, given the evidence “at this stage” of the case,

the court deemed it likely that the statute would pass

even strict scrutiny. Jd. at 73-78. The court also con-

sidered the balance of hardships and the public in-

terest, concluding that neither factor would change

the outcome even counting the ultimate merits ques-

tion as close. Jd. at 89-97. With respect to the Free

Exercise claim, the court upheld the Act as “a neutral

law of general applicability” which “‘regulate[s] all

10

pregnancy centers,” not just those opposed to abor-

tion, in a “‘uniform manner.” Jd. at 79, 86.

c. The Livingwell case was filed in the U.S. Dis-

trict Court for the Northern District of California

against the California Attorney General, the Director

of the California Department of Public Health, three

county counsels, and three city attorneys. Livingwell

C.A. E.R. 78 (First Amended Complaint). The plain-

tiffs are three clinics licensed as primary care, free,

or community clinics. Id. at 79-80. They based their

motion for a preliminary injunction on their com-

plaint and on brief declarations, which together pro-

vide limited detail about the clinics’ activities—such

as that they are morally opposed to abortion, that

they do not charge patients for their services, and

that they provide both medical services (such as

pregnancy testing and verification, obstetrical ultra-

sounds, and sexually transmitted infection testing

and treatment) and non-medical services (such as

post-abortion healing retreats and material support

through a thrift store). Jd. at 71, 74, 77 (Declara-

tions).

Noting the “limited record” before it, Livingwell

Pet. App. 31, 32, the district court concluded that the

plaintiffs were unlikely to succeed on the merits of

their claims, id. at 25-37. In the court’s view, “fur-

ther discovery [would be] needed” for the court to

evaluate whether the speech at issue was commercial

speech. Jd. at 31-32. As a regulation of professional

speech, however, the law was permissible, because

the plaintiffs had “accept[ed] the responsibility of

providing medically-supervised treatment for pa-

tients,” and the statute required them to provide “on-

ly factual and incontrovertibly true information

11

about the range of pregnancy-related public health

services available.” Jd. at 37. The court also held

that the plaintiffs had not demonstrated irreparable

injury and that the balance of equities did not weigh

in their favor. Id. at 38.

2. Two motions panels of the court of appeals de-

nied motions by the Livingwell and AWF plaintiffs

seeking injunctions pending appeal, concluding that

the plaintiffs were “not likely to succeed on their

claim that the district court abused its discretion in

holding that they do not meet the preliminary injunc-

tion standard.” Livingwell Pet. App. 5-6; see also

AWF C.A. Doc. 11.7

A merits panel then affirmed the district courts’

denials of injunctive relief, issuing a published opin-

ion in NIFLA and unpublished summary opinions in

Livingwell and AWF. NIFLA Pet. App. 1a-43a; AWF

Pet. App. 1-3; Livingwell Pet. App. 1-4.

In its lead opinion, the court reasoned that the

Act did not discriminate based on viewpoint. NIFLA

Pet. App. 20a. Indeed, “[o]ther than ... two narrow

exceptions unrelated to viewpoint, the Act applies

equally to clinics that offer abortion and contracep-

tion as it does to clinics that oppose those same ser-

vices.” Id. at 21a. Although the Act mandated the

provision of notices with particular content, that did

not require strict scrutiny under Reed v. Town of Gil-

bert, 135 S. Ct. 2218 (2015). NIFLA Pet. App. 23a.

With respect to professional speech, this Court had

upheld certain state compelled notices by physicians

7The NIFLA plaintiffs did not move for an injunction

pending appeal.

12

in Casey. Id. at 23a-24a. Although some courts, rely-

ing on Casey, had imposed a mere “‘reasonableness’

test when determining whether an abortion-related

disclosure law violated physicians’ First Amendment

rights,” id. at 25a (citing Fifth and Eighth Circuit de-

cisions), the court of appeals concluded that it was

appropriate to apply here the same test that it would

apply to other regulations of professional speech. Id.

at 26a-27a; see id. at 28a-33a (applying professional

speech test from Pickup v. Brown, 740 F.3d 1208 (9th

Cir.), cert. denied, 134 S. Ct. 2871, and 134 S. Ct.

2881 (2014)). Application of that test was appropri-

ate because “clients go to the clinic precisely because

of the professional services it offers” and “reasonably

rely upon the clinic for its knowledge and skill,” and

because the notice applicable to licensed clinics con-

tained information relating to the clinics’ professional

services and was “part of the clinics’ professional

practice.” Id. at 30a-31a.

As a regulation of professionals, the licensed clin-

ic notice requirement was not subject to rational ba-

sis review, because it did not regulate “therapy,

treatment,” or other conduct. Pet. App. 31a. Nor did

strict scrutiny apply, because the notice governed on-

ly professional relationships with patients—the clin-

ics were not “engaging in a public dialog when

treating their clients.” Id. As a result, the court ap-

plied intermediate scrutiny. Jd. at 3la-32a. The

statute served the State’s substantial interests in

promoting health and regulating the practice of the

profession. Id. at 34a. And the notice was “narrowly

drawn,” in that it did not “contain any more speech

than necessary” to alert women to the existence of

state-funded services, and did not “encourage, sug-

gest, or imply that women should use those ... ser-

13

vices.” Jd. This last point distinguished California’s

law from laws struck down in Evergreen Ass’n, Inc. v.

City of New York, 740 F.3d 233 (2d Cir.), cert. denied,

135 S. Ct. 435 (2014), and Centro Tepeyac v. Mont-

gomery County, 722 F.3d 184 (4th Cir. 2013) (en

banc), each of which had concerned notices that went

beyond merely supplying information in a neutral

manner. See NIFLA Pet. App. 36a (“unlike ... the

regulations before the Second and Fourth Circuits,

the [California notice] does not use the word ‘encour-

age,’ or other language that suggests the California

Legislature’s preferences regarding prenatal care”).

The court also found no abuse of discretion in the

NIFLA district court’s decision to deny an injunction

as to enforcement of the notice requirement that ap-

plied to unlicensed facilities. NIFLA Pet. App. 36a-

39a. The court found no need to decide whether the

medical nature of some of the unlicensed facilities’

services (such as pregnancy tests) could make them

subject to lesser scrutiny under the professional

speech doctrine. /d. at 37a. Even if strict scrutiny

applied, “California has a compelling interest in in-

forming pregnant women when they are using the

medical services of a facility that has not satisfied li-

censing standards set by the state.” Jd. That inter-

est was “particularly compelling” given the

Legislature’s findings about the existence of clinics

“which often present misleading information to wom-

en about reproductive medical services.” Jd. And the

Act’s one-sentence notice was “narrowly tailored” to

achieve its goal—a conclusion consistent with deci-

sions by the Second and Fourth Circuits. Jd. at 37a-

38a (citing Evergreen, 740 F.3d at 246-247, and Cen-

tro Tepeyac, 722 F.3d at 190).

14

Finally, the court found no merit in the plaintiffs’

Free Exercise claim. NIFLA Pet. App. 40a-42a. Un-

like the ordinance struck down in Church of the

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.

520 (1993), the Act did not single out clinics that

were motivated by religious belief. NIFLA Pet. App.

40a. Instead, it “applies to all covered facilities, and

is indifferent to the basis for any objection.” Jd. The

two exemptions merely recognized the State’s inabil-

ity to regulate federal clinics, and the lack of any

need to compel notice about public funding options at

clinics that were already able and motivated to enroll

patients in those options themselves. Id. at 41a.

The plaintiffs’ petitions for rehearing en banc

were denied without dissent. NIFLA Pet. App. 72a-

73a; AWF Pet. App. 98; Livingwell Pet. App. 41-42.

ARGUMENT

The court of appeals’ decisions upholding the dis-

trict courts’ denials of petitioners’ requests for pre-

liminary relief conflict neither with this Court’s

precedents nor with the decisions of other lower

courts. The notice that licensed facilities must give

under the FACT Act falls well within the First

Amendment's tolerance for the regulation of the

practice-related speech of licensed professionals. The

notice that unlicensed facilities must give is a per-

missible means to ensure that women are not misled

about whether they are under the care of medical

professionals, as courts reviewing similar laws have

concluded. And the Act poses no substantial Free

Exercise question. There is no reason for review by

this Court, particularly at the prelimwiary stage of

this ongoing litigation.

15

1. All petitioners argue that the FACT Act’s pro-

visions requiring disclosures by licensed facilities vio-

late the Free Speech Clause of the First Amendment.

NIFLA Pet. 17-30; AWF Pet. 15-31; Livingwell Pet.

14-38. The court of appeals’ decision that the peti-

tioners were unlikely to succeed on that claim is con-

sistent with this Court’s precedents, and creates no

conflict with decisions of other lower courts. NIFLA

Pet. App. 18a-36a.

a. This Court has recognized that, for First

Amendment purposes, requirements imposed on a

licensed professional’s speech in the course of profes-

sional practice present substantially different ques-

tions than similar requirements imposed on a non-

professional. In Planned Parenthood of Southeast-

ern Pennsylvania v. Casey, 505 U.S. 833 (1992) (plu-

rality opinion), for example, the Court considered a

Pennsylvania statute that, among other things, re-

quired a physician or qualified non-physician to in-

form women seeking abortions about the availability

of state-prescribed printed materials that described

the fetus and gave information about paternal child-

support, adoption, and other alternatives to abortion.

Id. at 881. Casey rejected a First Amendment chal-

lenge to this requirement, because “the physician’s

First Amendment rights not to speak are implicated,

but only as part of the practice of medicine, subject to

8 AWF proposes (Pet. 30) that certiorari should be

granted to determine whether a special category of professional

speech exists at all. But AWF did not contest the existence of a

special category of professional speech regulation in the lower

courts. It argued only that the Act fell outside the professional

speech doctrine’s boundaries and that compelled speech always

receives strict scrutiny. AWF C.A. Br. 18-26; AWF C.A. Reply

Br. 3-6.

16

reasonable licensing and regulation by the State.”

Id. at 884 (citations omitted). See also Lowe v. SEC,

472 U.S. 181, 207-208 (1985); id. at 227-233 (White,

J., concurring).

Petitioners suggest that Casey's reasoning does

not extend to the FACT Act, because California al-

lows the delivery of the notice during check-in proce-

dures or by a posted sign in the waiting room, rather

than requiring disclosures of information in one-on-

one conversations with physicians. NIFLA Pet. 27-

28. But the notice requirement applies only to clinics

licensed under section 1204. Such clinics provide

“Idjiagnostic, therapeutic, radiological, laboratory

and other services for the care and treatment of pa-

tients for whom the clinic accepts responsibility,” Cal.

Code. Regs. tit. 22, § 75026, thus “tak[ing] the affairs

of [the patient] personally in hand and purport[ing]

to exercise judgment on [the patient’s behalf] in the

light of [her] individual needs and circumstances,”

Lowe, 472 U.S. at 232 (White, J., concurring).9 Nor

can Casey support a rule limiting professional! disclo-

sures to speech by particular professionals rather

than by the licensed institution at which the profes-

sionals work. The statute upheld in Casey required

that certain disclosures be made by the physician or

a qualified nonphysician. 505 U.S. at 881. Indeed,

by allowing the clinic to choose whether to make its

disclosure by a printed notice (delivered by the physi-

cian or otherwise), a digital notice, or a sign on clinic

® Although NIFLA argues (Pet. 28) that the licensed

clinics also engage in activities such as offering clothing and

diapers, the record at this stage does not show that such ser-

vices predominate over the provision of personalized medical

services.

17

walls, California’s Act imposes a lesser burden on

both the speaker and the listener than would be im-

posed if the disclosure had to be made in a one-on-

one conversation with a particular person.

Casey likewise cannot be read as limiting the

regulation of medical professionals’ speech to pre-

surgery informed consent. NIFLA Pet. 27. Many of

the disclosures at issue in Casey went far beyond in-

forming a woman as to the nature and health conse-

quences of a surgical procedure. See, e.g., 505 U.S. at

883 (upholding required dissemination of information

regarding “the assistance available should [the wom-

an] decide to carry the pregnancy to full term”). Like

the law at issue in Casey, the FACT Act recognizes

that licensed medical institutions and professionals

have specialized knowledge not only about the tech-

nical aspects of medicine, but also about related

financial and regulatory questions.!° Indeed, peti-

tioners encourage their patients to depend on such

expertise. See AWF Pet. App. 20 (AWF’s nurses ad-

vise on collecting health insurance benefits). Cali-

fornia’s law seeks to ensure that pregnant women

have access to information that is relevant to the va-

riety of health decisions they face, much as the Casey

disclosures aimed to “ensure that a woman appre-

hend the full consequences of her decision” so that

10 See also, e.g., Cal. Health & Safety Code § 1204.3(a)(5)

(alternative birthing centers must provide to patients a sum-

mary of state child-car-seat laws and list of public car-seat pro-

grams); Cal. Code Regs., tit. 16, § 1355.4 (physicians’ offices

must provide notice, by posted sign or otherwise, stating that

physicians are “licensed and regulated by the Medical Board of

California” and giving the Medical Board’s phone number); Cal.

Code Regs., tit. 16, § 1707.6 (pharmacies must post notice that

interpreter services and large-font drug labels are available).

18

she does not “discover later, with devastating psycho-

logical consequences, that her decision was not fully

informed.” 505 U.S. at 882.11

b. NIFLA contends (Pet. 21-23) that certiorari

should be granted to determine whether, under Jn re

Primus, 436 U.S. 412 (1978), strict scrutiny applies

whenever the State regulates the speech of profes-

sionals who do not charge for their services. In Pri-

mus, an attorney was disciplined for informing a

forced-sterilization victim that the ACLU might rep-

resent her for free. Jd. at 416-421. This Court con-

cluded that the case was controlled by Jn re Button,

371 U.S. 415 (1963), which had forbidden Virginia

from punishing the NAACP for soliciting potential

plaintiffs to file suit with the NAACP as counse’!.

Primus, 436 U.S. at 422-426. In each case, the “solic-

itation of prospective litigants ... for the purpose of

furthering [the organization’s and its members’] ob-

jectives” fell squarely “within the right to engage in

association for the advancement of beliefs and ideas.”

1! NIFLA argues (Pet. 30) that the Ninth Circuit’s appli-

cation of the professional speech doctrine based on Casey con-

flicts with the Eleventh Circuit’s decision in Wollschlaeger v.

Governor of Florida, 848 F.3d 1293 (11th Cir. 2017) (en banc).

As NIFLA notes, Wollschlaeger observed that Casey did not

“‘hold sweepingly that all regulation of speech in the medical

context merely receives rational basis review.” Jd. at 1311

(quoting Stuart v. Camnitz, 774 F.3d 238, 249 (4th Cir. 2014)).

But the Ninth Circuit did not apply rational basis review. In-

stead, although mentioning that some courts have applied such

review with respect to regulations of medical professionals’

speech, the Ninth Circuit rejected that standard in favor of in-

termediate scrutiny. NIFLA Pet. App. 25a-28a. That is con-

sistent with Wollschlaeger. See Wollschlaeger, 848 F.3d at 1311

(rejecting rational basis review in favor of “heightened scruti-

ny”).

19

Id. at 423-424 (footnote and internal quotation marks

omitted). Any prohibition on that solicitation was

subject to “‘exacting scrutiny,” requiring a “‘compel-

ling” interest and a restriction “‘closely drawn to

avoid unnecessary abridgment of associational free-

doms.” Id. at 432.

Under Primus and Button, interference with a

nonprofit’s associational right to attract members

and allies for collective action through litigation re-

ceives strict scrutiny. See United Transp. Union v.

State Bar of Michigan, 401 U.S. 576, 585 (1971) (But-

ton concerned the “right to group legal action”).12 But

those cases do not hold that a State’s ability to regu-

late professional conduct depends on whether the

professional charges for his or her services. Neither

Primus nor Button suggest that a pro bono attorney's

advice to clients on the conduct of their litigation

would be subject to anything other than the ordinary

rules regulating the profession. And exempting med-

ical professionals from ordinary regulations in their

advice to non-paying patients would create a vast

population vulnerable to abuse and neglect.14

12 For nonprofit litigating organizations, the client is not

only a recipient of legal services but also a necessary participant

in the lawsuit that propounds the organization’s advocacy mes-

sage to the public and to courts. A medical clinic’s patient, in

contrast, receives confidential medical services. California does

not restrict petitioners’ efforts to recruit staff or volunteers—the

activity most analogous to the practices at issue in Button and

Primus.

13 See Centers for Disease Control, NCHS Data Brief No.

38 (May 2010) (roughly 20% of emergency room patients under

age 65 are uninsured), available at http://www.cdc.gov/nchs/

data/databriefs/db38. pdf.

20

NIFLA claims (Pet. 22-23) that the Ninth Cir-

cuit’s rejection of its argument conflicts with Moore-

King v. County of Chesterfield, 708 F.3d 560 (4th Cir.

2013). But Moore-King addressed the regulation of

“fortune-teller[s], palmist[s], astrologist[s],’” “‘clair-

voyant{s],” “‘prophet[s]’” and other practitioners of

the “‘occult sciences.” Jd. at 563. Its recognition

that States have greater latitude to regulate such a

person’s advice to “‘a paying client’” (NIFLA Pet. 23)

does not imply converse restrictions on the States’

ability to regulate the pro bono services of profes-

sionals such as doctors and lawyers. Cf. Polk County

v. Dodson, 454 U.S. 312, 323 (1981) (legal ethics rules

constrain public defenders’ advocacy); Barker v. Ca-

potosto, 875 N.W. 2d 157, 167 (lowa 2016) (attorneys

who serve indigent clients are subject to ordinary

malpractice law).

c. Livingwell (Pet. 35) and NIFLA (Pet. 18) argue

that, regardless of any professional context, com-

pelled speech should receive strict scrutiny as con-

tent-based regulation under Reed v. Town of Gilbert,

135 S. Ct. 2218 (2015). But Reed did not extinguish

the categorically lower levels of scrutiny that apply to

certain kinds of speech, such as commercial speech

and speech in the context of a professional relation-

ship. The Ninth Circuit’s recognition of this point is

consistent with other lower courts’ post-Reed deci-

sions. E.g., Kiser v. Kamdar, 831 F.3d 784, 788 (6th

Cir. 2016) (applying intermediate scrutiny test of

Central Hudson Gas & Elec. Corp. v. Pub. Serv.

Comm’n of N.Y., 447 U.S. 557 (1980), to content-

based restriction on dentist's advertising). It is also

consistent with recent actions by this Court. See Ex-

pressions Hair Design v. Schneiderman, 137 S. Ct.

1144, 1151 (2017) (remanding for consideration of

whether a statute governing price-disclosures should

21

be reviewed as a commercial speech regulation under

Central Hudson, or whether it should be “upheld as a

valid disclosure requirement” under Zauderer v. Of-

fice of Disciplinary Counsel of Supreme Ct. of Ohio,

471 U.S. 626 (1985) (allowing disclosure require-

ments that are “reasonably related” to the State’s in-

terest in preventing deception of consumers)).

AWF contends (Pet. 18-20) that certain lower

court decisions interpret Reed as mandating strict

scrutiny for all speech regulations that are content-

based. But AWF’s cases say nothing about Reed’s ef-

fect on speech in categories for which this Court had

previously established a lesser standard of review.

Free Speech Coalition, Inc. v. Attorney General, 825

F.3d 149, 176 n.7 (3d Cir. 2016), cited without criti-

cism several post-Reed decisions continuing to apply

intermediate scrutiny to content-based commercial-

speech laws. Two of AWPF’s strict-scrutiny cases con-

cerned core political speech. See Pursuing America’s

Greatness v. FEC, 831 F.3d 500, 508 (D.C. Cir. 2016);

Wagner v. Garfield Heights, 2017 WL 129034, at *1

(6th Cir. 2017) (per curiam). Another posed the same

question as Reed itself. See Central Radio Co. v. City

of Norfolk, 811 F.3d 625 (4th Cir. 2016) (sign ordi-

nance with exemptions for particular content was not

a time-place-manner restriction). And Norton v. City

of Springfield, 806 F.3d 411 (7th Cir. 2015), applied

strict scrutiny to an ordinance that barred oral re-

quests for money. Nothing in those decisions demon-

strates any need for further review in this case.

d. Petitioners contend that the Ninth Circuit’s

decision conflicts with lower court decisions regard-

ing abortion-related disclosures in particular. That is

not correct.

22

NIFLA argues (Pet. 24) that the Ninth Circuit’s

decision conflicts with the portion of Evergreen Ass’n,

Inc. v. City of New York, 740 F.3d 233 (2d Cir. 2014),

that considered a New York City ordinance which re-

quired pregnancy centers to make several disclo-

sures, including one about whether or not each center

would provide, or provide referrals for, abortion,

emergency contraception, or prenatal care. Id. at

238. The Second Circuit affirmed the district court’s

preliminary injunction against that particular man-

dated disclosure, holding that the requirement could

not survive strict or intermediate scrutiny because it

“overly burden[ed]” the centers’ speech. Jd. at 249.

But the ordinance in Evergreen applied only to cen-

ters that were not “‘licensed ... to provide medical or

pharmaceutical services” and that did not “have a

licensed medical provider on staff.” Id. at 239. Ever-

green thus did not consider or decide the questions

concerning professional speech regulation that the

Ninth Circuit addressed here.

Petitioners contend that the Ninth Circuit’s deci-

sion conflicts with Stuart v. Camnitz, 774 F.3d 238

(4th Cir. 2014). See Livingwell Pet. 20-24; NIFLA

Pet. 29; AWF Pet. 25. Stuart concerned a North Car-

olina law that required a doctor or technician to per-

form a sonogram on any woman seeking an abortion,

to display the sonogram so that the woman would see

it unless she “avert[ed] her eyes,” to offer the woman

the ability to hear the fetal heartbeat, and to give a

detailed description of the fetus’s “‘presence, location,

and dimensions” and “‘the presence of external

members and internal organs.” Stuart, 774 F.3d at

243. The Fourth Circuit in Stuart, like the Ninth

Circuit here, rejected rational basis review and in-

23

stead applied a “heightened intermediate scrutiny

standard.” Id. at 248.14 The statute in Stuart did not

survive that scrutiny because “the context surround-

ing the delivery of [the state-mandated message]

promote[d] the viewpoint the state wishe[d] to en-

courage.” Jd. at 253. “[U]nusual” features of the

North Carolina disclosure requirement reinforced

that its purpose was not to provide neutral infor-

mation, but to make the discussion of abortion dis-

tasteful. Jd. at 254-255. Moreover, unlike the law in

Casey and California’s law here, the North Carolina

statute required the physician herself to speak the

message, rather than simply “[ijnforming a patient

that there are state-issued materials available.” Jd.

at 253. Nothing in Stuart implies that the Fourth

Circuit would have come to a different conclusion

than the Ninth Circuit on the quite different facts of

this case.

e. Finally, the State argued below that at least

some of the activities of the licensed facilities were

commercial speech and could be regulated as such.

See, e.g., Livingwell Pet. App. 31-32 (district court

decision noting the commercial speech question).

Although the court of appeals rejected the argument,

NIFLA Pet. App. 18a n.5, it would provide an inde-

pendent basis for sustaining the judgment below if

the Court were to grant review in this case.

\¢ Because the decision below upheld California’s notice

requirement for licensed facilities under intermediate scrutiny,

this case does not implicate AWF’s view that a standard of re-

view that is even lower should apply to other kinds of abortion-

disclosure regulations. AWF Pet. 25-26 (citing Texas Med. Pro-

viders Performing Abortion Servs. v. Lakey, 667 F.3d 570 (5th

Cir. 2012), and Planned Parenthood Minn. v. Rounds, 530 F.3d

724 (8th Cir. 2008)).

24

2. The court of appeal also correctly affirmed the

denial of a preliminary injunction with respect to

NIFLA’s Free Speech challenges to the notice that

unlicensed facilities are required to give. NIFLA Pet.

App. 36a-39a.

The notice requirement for unlicensed facilities

applies only to facilities whose characteristics—such

as the provision of ultrasound examinations and

pregnancy tests, see p. 5, supra—could mislead visi-

tors into believing that they are receiving care under

the supervision of licensed medical professionals.

The Act requires disclosure only of the fact that the

facility “is not licensed as a medical facility by the

State of California and has no licensed provider who

provides or directly supervises the provision of ser-

vices.” See p. 6, supra. The court of appeals conclud-

ed that the disclosure was likely to survive strict

scrutiny, because it is narrowly tailored to achieve

the State’s compelling interest in ensuring “that

women, who may be particularly vulnerable when

they are searching for and using family-planning

clinical services, are fully informed that the clinic

they are trusting with their well-being is not subject

to the traditional regulations that oversee those pro-

fessionals who are licensed by the state.” NIFLA Pet.

App. 37a-38a.

As NIFLA concedes (Pet. 25 n.4), the Second Cir-

cuit in Evergreen also upheld, under strict scrutiny, a

requirement for unlicensed centers to “disclose

whether or not they ‘have a licensed medical provider

on staff who provides or directly supervises the pro-

vision of all of the services at such pregnancy services

center.” 740 F.3d at 246.15 Evergreen reasoned that

16 This Court denied the Evergreen plaintiffs’ petitions

(continued...)

25

such a disclosure “is the least restrictive means to

ensure that a woman is aware of whether or not a

particular pregnancy services center has a licensed

medical provider at the time that she first interacts

with it.” Id. at 247. Evergreen rejected an argument

that New York should instead have barred only pur-

poseful deception. A woman is harmed if a center’s

attributes lead her to believe erroneously that she is

receiving care from licensed professionals, even in

the absence of any active deception. Jd.

NIFLA contends (Pet. 31-36) that the decision be-

low is inconsistent with Riley v. National Federation

of the Blind of North Carolina, 487 U.S. 781 (1988).

Riley invalidated a North Carolina requirement that

a nonprofit’s paid fundraisers disclose to potential

donors “the average perc atage of gross receipts ac-

tually turned over to charities by the fundraiser for

all charitable solicitations conducted in North Caro-

lina within the previous 12 months.” Jd. at 786. The

Court rejected North Carolina’s attempt to defend

the law as necessary to prevent donors from giving

money under a mistaken assumption about how

much would go to the soliciting charity. Jd. at 798.

But part of Riley’s reasoning for why that disclosure

was unnecessary was that a separate provision of

North Carolina law, which the plaintiffs had not

challenged, id. at 786, “require[d] professional fund-

raisers to disclose their professional status to poten-

tial donors,” id. at 799. Riley thus “suggest|s] that a

requirement that solicitors disclose their professional

status is ‘a narrowly tailored requirement [that]

(...continued)

for certiorari on that issue. See 135 S. Ct. 435 (2014) (denying

certiorari in Case Nos. 13-1462 and 13-1504).

26

would withstand First Amendment scrutiny.” Ever-

green, 740 F.3d at 248.16

In its question presented and elsewhere (Pet. i, 1,

10, 16, 32-33), NIFLA now focuses on the Act’s re-

quirement that notices be provided in Medi-Cal

threshold languages, which NIFLA says would re-

quire it to use 13 languages in Los Angeles County

and six languages in San Diego County. Neither that

argument nor any supporting evidence was presented

to the district court. Indeed, NIFLA’s district court

pleadings regarding its motion for a preliminary in-

junction did not raise the multiple-language issue at

all. See NIFLA D. Ct. Doc. 3 (Motion); NIFLA D. Ct.

Doc. 17 (Reply); NIFLA Pet. App. 85-122a (Com-

16 NIFLA contends (Pet. 32 n.5) that the Ninth Circuit’s

ruling as to notices by unlicensed providers conflicts with Cen-

tro Tepeyac v. Montgomery County, 5 F. Supp. 3d 745 (D. Md.

2014). But the Centro Tepeyac ordinance required that a disclo-

sure about lack of medical personnel be made by every “‘organi-

zation, center or individual” that “‘has a primary purpose to

provide pregnancy-related services” and “‘provides information

about pregnancy-related services’” without a licensed profes-

sional on staff. Jd. at 748. California’s requirement applies on-

ly to facilities with certain characteristics that could create a

misimpression about whether they are in fact medical clinics.

And the Centro Tepeyac ordinance required a covered facility to

disclose not only that it “‘does not have a licensed medical pro-

fessional on staff,” but also that “‘the Montgomery County

Health Ofcer encourages women who are or may be pregnant

to consult with a licensed health care provider.” Id. The dis-

trict court decision cited by NIFLA did not decide whether it

would have violated the First Amendment to require only the

first disclosure. Jd. at 754. When the Fourth Circuit considered

the two provisions separately at an earlier stage of that case, it

upheld the denial of a preliminary injunction as to the first dis-

closure. Centro Tepeyac v. Montgomery County, 722 F.3d 184,

189-190, 192 (4th Cir. 2013) (en banc).

27

plaint). NIFLA belatedly raised a form of the argu-

ment at the court of appeals, based on more limited

(and inconsistent) assertions. See NIFLA C.A. Open-

ing Br. 17 (arguing that law would require notice to

be provided “in up to four languages”); id. at 54 (five

languages). NIFLA’s accusation (Pet. 15) that the

lower courts failed to address the Act’s multiple lan-

guage requirement simply underscores NIFLA’s fail-

ure to properly present or preserve the issue. There

is no reason for this Court to address the language

requirement in the first instance, in a preliminary

injunction posture, on a nonexistent record.

The same is true of NIFLA’s claims about how

the Act’s language and type-size requirements would

interact with newspaper rates to make advertising

“cost prohibitive” (Pet. 1, 16, 25, 32-33)—assertions

that likewise were not presented to the courts below.

And although NIFLA alleged generally at the district

court that web advertisements on services such as

Google “have limits on their size, such as in the num-

ber of characters that can be used,” NIFLA Pet. App.

100a, NIFLA’s submissions to the lower courts did

not provide specific allegations about what those lim-

its are or about how members’ advertisements would

be affected.!7 Even if NIFLA intends to provide fur-

ther information to support its claims at a later

stage, the district court did not abuse its discretion in

withholding a preliminary injunction given the rec-

ord before it. And the absence of proper argument

17 See NIFLA D. Ct. Doc. 51, at 20 (Jan. 28, 2016, Tr.)

(court’s observation about the absence of information in the rec-

ord regarding “what [the plaintiffs’] advertisements say and

how they might be impacted by the disclosure required by the

statute”).

28

and evidence in the courts below makes this case ill-

suited for review of any related issue, at least in its

current posture.'®

3. AWF (Pet. 31-35) and NIFLA (Pet. 36-38) also

challenge the lower courts’ rejection of their requests

for preliminary relief based on the Free Exercise

Clause. NIFLA Pet. App. 39a-42a.

The Free Exercise Clause provides that “Con-

gress shall make no law .. . prohibiting the free exer-

cise” of religion. U.S. Const., amend I. It prevents

“governmental regulation of religious beliefs as

such.” Employment Div., Dep’t of Human Res. of Ore.

v. Smith, 494 U.S. 872, 877 (1990) (emphasis omit-

ted). But the Free Exercise Clause “does not relieve

an individual of the obligation to comply with a ‘valid

and neutral law of general applicability on the

ground that the law proscribes (or prescribes) con-

duct that his religion prescribes (or proscribes).’” Id.

at 879. Thus, a neutral law of general application

need not be justified by a compelling interest, even if

it has the incidental effect of burdening a particular

religious practice. Church of the Lukumi Babalu Aye,

Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993).

A law is neutral for these purposes if its object, as

determined by its text and operational effect, is

something other than the infringement or restriction

of religious practice. Lukumi, 508 U.S. at 532-533,

535. A law is generally applicable if it does not “im-

18 That is particularly so because the Act’s severability

clause, see NIFLA Pet. App. 82a-83a, would require the Court to

assess not only the combined effect of the Act’s language, adver-

tising, and other requirements, but also the separate effect of

each individual provision.

29

pose special disabilities on the basis of religious

views or religious status.” Smith, 494 U.S. at 877.

The FACT Act, which makes no distinction based on

a particular licensed or unlicensed facility’s religious

affiliation, beliefs, or position on abortion, meets

these tests.

Relying on Lukumi, NIFLA claims (Pet. 37-38)

that the Act was designed to target antiabortion facil-

ities, and that most such facilities are religiously mo-

tivated. The argument fails. Lukumi considered the

constitutionality of ordinances that interfered with

the Santeria religion’s practice of ritual sacrifice. 508

U.S. at 526. The ordinances outlawed “‘sacrific[ing]’”

or killing animals “‘for any type of ritual.” Jd. at

527. Most other kinds of animal killings were per-

mitted, including hunting, fishing, meat production,

pest extermination, and euthanasia. /d. at 536-537.

In effect, the ordinances applied only to the Santeria

Church. Id. at 537-538. The Court held that these

“gerrymandered’ ordinances were not neutral or gen-

erally applicable. Id. at 542.

Nothing similar can be said here. The unlicensed

notice requirement applies to all unlicensed facilities

that primarily provide pregnancy-related services

and that meet two or more of the criteria in section

123471(b). Thus, a commercial facility that is neu-

tral toward or supportive of abortion could be subject

to the notice requirement as a consequence of adver-

tising and offering ultrasounds. § 123471(b)(1), (3).9

19 See Cari Romm, FDA Warning: Stay Away From

“Keepsake” Ultrasounds, The Atlantic, Dec. 16, 2014 (discussing

businesses that offer “medically unnecessary scans ... adminis-

tered by people with no healthcare training”), available at

https://www.theatlantic.com/health/archive/2014/12/fdawarning

(continued...)

30

Licensed facilities, too, are subject to the Act’s re-

quirements based on criteria that are neutral as to

religious motivation or stance on abortion. See

§ 123471(a).

Nor do the Act’s exemptions amount to evidence

of a “gerrymander” in the Lukumi sense. The exemp-

tion for clinics “conducted, maintained, or operated

by the United States or any of its departments, offic-

ers, or agencies,” § 123471(c)(1), simply recognizes

that the State may lack power to regulate such enti-

ties. And the exemption for licensed clinics that are

already “enrolled as a Medi-Cal provider and a pro-

vider in the Family [PACT] Program,” § 123471(c)(2),

recognizes that there is no reason to mandate notice

of a phone number for accessing free or low-cost pub-

lic services at facilities that are able to (and have the

incentive to) enroll eligible patients in those very

programs themselves. See NIFLA Pet. App. 77a.”° It

(...continued)

-stay-away-from-keepsake-ultrasounds/383816/.

20 NIFLA now claims that the exemption for Family

PACT participants “is the method by which the State excludes

all others but the pro-life centers” and thus “forces only those

centers that oppose abortion to speak the State’s message.”

NIFLA Pet. 8-9; see also id. at 18, 20-21. At the court of ap-

peals, however, NIFLA pointed to this exemption not as evi-

dence of an anti-religious or viewpoint-discriminatory

gerrymander, but only as something that “undermines the al-

leged importance of [the State] interest” in informing women.

NIFLA C.A. Br. 47. Livingwell claims (Pet. 23) that the exemp-

tion for Medi-Cal Family PACT providers results in viewpoint

discrimination because Family PACT providers are not required

to inform women of alternatives to abortion. But Medi-Cal pro-

viders commonly cover the alternatives to abortion: prenatal

care and live birth. See pp. 1-2, supra.

31

does not function to exempt abortion providers.?! In-

deed, offering abortion services is one of the factors

that may make a licensed clinic subject to the notice

requirement, § 123471(a)(5), and notice by such a

provider would alert women to the availability of an

alternative: prenatal care. See pp. 3-4, supra.

NIFLA argues (Pet. 38) that groups opposed to abor-

tion generally cannot participate in the Family PACT

program because participants must “supply contra-

ceptives [that such groups] believe work as abortifa-

cients.” But at least at this stage of the litigation,

NIFLA has not introduced evidence of how broadly

that belief is held among such entities, or that the

exemption, in intent or operation, effectively singles

out religious groups opposed to abortion.

4. Finally, these petitions concern only denials of

motions for preliminary injunctive relief, which were

litigated (by petitioners’ choice) before discovery.

Discovery in Livingwell has been completed in the

interim, and it could be completed quickly in the oth-

er cases as well. Nothing bars petitioners from re-

newing their arguments in the lower courts on a full

record. At this stage of the proceedings, however, re-

view by this Court would be at best premature.??

21 Abortion is not a covered service under the Family

PACT program, though it is covered under other Medi-Cal pro-

grams. See p. 2, supra.

22 Moreover, NIFLA’s complaint asserts that the notice

requirement governing licensed clinics violates a federal statute

and that the requirements imposed on both licensed and unli-

censed facilities violate the California Constitution’s Liberty of

Speech Clause. NIFLA Pet. App. 116a-117a (asserting claims

based on 42 U.S.C. § 238n and Cal. Const., art. I, § 2(A)). A

pending state-court lawsuit, in which discovery has been com-

(continued...)

32

CONCLUSION

The petitions for writs of certiorari should be de-

nied.

Respectfully submitted,

XAVIER BECERRA

Attorney General of California

EDWARD C. DUMONT

Solicitor General

JOSHUA A. KLEIN

Deputy Solicitor General

JONATHAN M. EISENBERG

ANTHONY R. HAKL

NOREEN P. SKELLY

Deputy Attorneys General

Counsel for Governor Edmund G. Brown, Jr.

and Attorney General Xavier Becerra

May 24, 2017

(...continued)

pleted, challenges the Act based on three provisions of the Cali-

fornia Constitution. Schurpen Foundution, Inc. v. Becerra, No.

RIC1514022 (Riverside Cty. Super. Ct., filed Nov. 25, 2015).

The State intends to defend against. these challenges, but any

plaintiffs success in enjoining the statute’s enforcement on

statutory or state constitutional grounds would make it unnec-

essary to consider the federal constitutional issues petitioners

press here.