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

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No. 16-1140

In the Supreme Court of the Anited States

NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES,

DBA NIFLA, ET AL.,

Petitioners,

XAVIER BECERRA,

ATTORNEY GENERAL OF CALIFORNIA, ET AL.,

Respondents.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR FIRST RESORT, INC. AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

KELLY S. BIGGINS MARK L. RIENZI

LOCKE LORD LLP Counsel of Record

300 S. Grand Avenue, ERIC C. RASSBACH

Suite 2600 JOSEPH C. DAVIS

Los Angeles, California THE BECKET FUND FOR

90071 RELIGIOUS LIBERTY

W. Scorr HASTINGS 1200 New Hampshire

CARL SCHERZ Ave. NW, Suite 700

ANDREW BUTTARO Washington, D.C.

LOCKE LORD LLP 20036

2200 Ross Avenue, (202) 955-0095

Suite 2800 mrienzi@becketlaw.org

Dallas, Texas 75201

Counsel for Amicus Curiae

QUESTION PRESENTED

Across the country, disagreements over abortion

have prompted a variety of speech restrictions target-

ing particular speakers because of their views on abor-

tion. The resulting court decisions have distorted im-

portant First Amendment doctrines, particularly in

the areas of neutrality analysis, commercial speech,

and professional speech. This case provides an im-

portant opportunity for the Court to either fully cor-

rect these doctrinal distortions or to lay the ground-

work to provide a full correction in a subsequent case.

The particular law at issue here targets pro-life speak-

ers and requires them to refer women to government

programs that will provide abortions, but the Ninth

Circuit failed to apply strict scrutiny. The questions

presented are:

Whether a content- and viewpoint-based law may

avoid strict scrutiny based on judicial guesswork as to

a speaker’s presumed purpose in engaging in the reg-

ulated speech.

Whether this Court’s commercial speech doctrine,

and references to “professional speech,” can be applied

to the speech of non-profit pregnancy counselors who

provide free and often religiously-motivated assis-

tance to pregnant women.

TABLE OF CONTENTS

QUESTION PRESENTED .....................cccccssccssseeeees

TAR GE RASTER GEE BEM cv csscesecsesesscesvevcrmecssnsnsss

INTRODUCTION AND SUMMARY

ie, rere

|. This case presents an important

opportunity to correct doctrinal

distortions concerning content- and

viewpoint-neutrality analysis .......................

A. The FACT Act is one of many laws

targeting speech by pro-life

pregnancy counselors ............................+++

B. The Court can provide an important

correction to First Amendment

MOUATRII GROBTEIID. <...00ccccesccscscvscccscosecsesees

1. Content- and viewpoint-

discriminatory laws, including

those enacted for the purpose of

discriminating on the basis of

content or viewpoint, are subject

Cp -UIEIS UIIy cecsivtcrcnscncseneqnsssestesiests

2. The Act should be subject to strict

GD ectacancateceesnssstiosielaemdesdiaaninne

ili

3. The Ninth Circuit's errors with

respect to content and viewpoint

discrimination are reflected in

other pregnancy-center cases, too. ..... 16

ll. This case presents an important

opportunity to clarify that the

“commercial” and “professional” speech

categories cannot be used to shield

B. The Ninth Circuit's “professional

speech” holding is in clear conflict

with thie Court's cases ............................. 28

C. Other pregnancy-center cases

demonstrate confusion over

commercial speech doctrine, which

should be considered in this Court’s

disposition of this case ................-............ 30

EN eC 37

APPENDIX

EES EA ne ae la

Baltimore City Revised Code.............................. da

a scudiseemenette Ta

Pe ID sce scccesicttnnesiidniocnsininiieiatsinsicicetcmmaati 26a

III oiiesepscneinastinpenitiiiateniatenimandianbangiens 34a

King County, Washington, Regulation ............ 40a

Montgomery County, MD, Ordinance .............. 49a

gt Ee oe 54a

ne ID cacecsecicsesssenorensinnstintanscnvadneies 62a

TABLE OF AUTHORITIES

Page(s)

Cases

44 Liquormart, Inc. v. Rhode Island,

hae 17

Adventure Commce’ns, Inc. v. Ky.

Registry of Election Fin.,

191 F.3d 429 (4th Cir. 1909).........................00000+. 36

Air Line Pilots Ass’n, Int'l v. Dep't of

Aviation of Chi.,

45 F.3d 1144 (7th Cir. 1995).....................-.s0eese00s 15

Bad Frog Brewery, Inc. v. N.Y. State

Liquor Auth.,

fe | fl I ee 37

Bd. of Trustees of State Univ. of New

York v. Fox,

> SERRE 24, 27, 28, 32

Bolger v. Youngs Drug Prods. Corp.,

a sceeeainii passim

Cahaly v. Larosa,

796 F.3d 308 (4th Cir. 3015) ...............000.0000000020022 19

Cent. Hudson Gas & Elec. Corp. v. Pub.

Serv. Comm'n of N-Y.,

ee ee ia cinteltnetnscincinatapiborinioninnnieas 26, 27

Centro Tepeyac v. Montgomery County,

779 F. Supp. 2d 456 (D. Md. 2011).......... 21, 35, 36

Centro Tepeyac v. Montgomery County,

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

Cincinnati v. Discovery Network, Inc.,

og 2 ee

Cornelius v. NAACP Legal Defense &

Ed. Fund, Inc.,

EE EC

Dryer v. Nat'l Football League,

814 F.3d 938 (8th Cir. 2016)....................

Edward Lewis Tobinick, MD vy. Novella,

848 F.3d 935 (11th Cir. 2017)..................

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

801 F. Supp. 2d 197 (S.D.N.Y. 2011).......

Facenda v. N.F.L. Films, Inc.,

542 F.3d 1007 (3d Cir. 2008)....................

Fargo Women’s Health Org., Inc. v.

Larson,

381 N.W.2d 176 (N.D. 1985)....................

FEC v. Wis. Right to Life, Inc.,

First Resort, Inc. v. Herrera,

860 F.3d 1263 (9th Cir. 2017)..................

First Resort, Inc. v. Herrera,

No. 17A600 (U.S. Dec. 5, 2017)................

sepecnnsnens 37

oumssuaneasa 37

sonal passim

vil

Free Speech Coal., Inc. v.

Att'y Gen. U.S.,

825 F.3d 149 (3d Cir. 2016)....................ccccceceeeeees 19

Fulwilder v. Senior,

No. 4:16-cv-00765, ECF 43

(N.D. Fie. Sept. 3B, 3O1'7)...........0...00000000000ss000 21, 22

Greater Balt. Ctr. for Pregnancy

Concerns, Inc. v. Mayor & City

Council of Balt.,

2018 WL 298142 (4th Cir. 2018)................... passim

Greater Balt. Ctr. for Pregnancy

Concerns, Inc. v. Mayor & City

Council of Balt.,

683 F.3d 539 (4th Cir. 2012).......................... 33, 34

Greater Balt. Ctr. for Pregnancy

Concerns, Inc. v. Mayor & City

Council of Balt.

721 F.3d 264 (4th Cir. 2013)......................... passim

Jordan v. Jewel Food Stores, Inc.,

743 F.3d GOO (7th Cir. BO14)...........00...0020.0200000002. 37

March v. Mills,

fe fT he ey, Pe 19

Matal v. Tam,

nc demnmunniieal passim

McCullen v. Coakley,

eee 11, 12, 16

vill

McCullen v. Coakley,

571 F.3d 167 (1st Cir. 2009)..................

Murdock v. Pennsylvania,

eee

NAACP vy. Button,

gS REESE TES arene nor Be eae ee 24

National Institute of Family & Life

Advocates v. Rauner,

No. 16 C 50310, ECF 65 (N.D. IIL.

Ee Ce EE i acrcdtnincwiuencisandevenmcintbinisecienceaisinecseoi 21

Norton v. City of Springfield,

806 F.3d 411 (7th Cir. 2015).....................000ccceeee. 11

Ohralik v. Ohio State Bar Assn.,

EN A meme eee 29

Phelps-Roper v. City of Manchester,

867 F.3d 883 (8th Cir. 2017) ......................ccccceees 19

In re Primus,

Ee 24, 29, 30

Proctor & Gamble Co. v. Amway Corp.,

242 F.3d 539 (5th Cir. 2001)..............0.........0ceeee. 36

Proctor & Gamble Co. v. Haugen,

222 F.3d 1262 (10th Cir. 2000)...............00........... 37

Pursuing Am.’s Greatness v.

Fed. Election Comm'n,

seeenahastnalil 19

831 F.3d 500 (D.C. Cir. 2016)................6.

R.A.V. v. St. Paul,

505 U.S. 377, 391 (1992)...................+.

Reed v. Town of Gilbert,

135 S. Ct. 2218 (2015)................02. -.

Reed v. Town of Gilbert,

707 F.3d 1057 (9th Cir. 2013).............

Riley v. Nat'l Fed’n of the

Blind of N.C., Inc.,

RF TET FO GED vvccccesesescevcszenesevesers

Semco, Inc. v. Amcast, Inc.,

52 F.3d 108 (6th Cir. 1995).................

Serafine v. Branaman,

810 F.3d 354 (5th Cir. 2016)...............

Sorrell v. IMS Health Inc.,

564 U.S. 552 (2011) .................ccccceeeeeees

Spirit Airlines, Inc. v. U.S. Dep't of

Transp.,

687 F.3d 403 (D.C. Cir. 2012).............

Thomas vy. Collins,

323 U.S. 516 (1945) ............0.......000000008

Time Warner Cable Inc. v. F.C.C.,

729 F.3d 137 (2d Cir. 2013).................

United States v. O’Brien,

391 U.S. 367 (1968) ...............:cccceeeeeeeee

Village of Schaumburg v. Citizens for a

Better Env't,

EE RE Ey ieee an Oa AACE 36

Virginia State Bd. of Pharm. v. Va.

Citizens Consumer Council, Inc.,

ee ee Bi idensiscaiveceseencineseesvisesces 24, 26, 27

Wandering Dago, Inc. v. Destito,

2018 WL 265383 (2d Cir. 2018) ......................000. 17

Ward v. Rock Against Racism,

Be ee: Pe rlietendecsencsininassvecicstuiccascuenepen 11

Statutes

es Ce ED CIO ickteicccincenedicscnisnssinesecion 5, 22

S.F. Admin. Code, ch. 93 §§ 93.1-93.5 ...................... 16

Other Authorities

Elena Kagan, Private Speech, Public

Purpose: The Role of Governmental

Motive in First Amendment Doctrine,

GD Wi, Ga Bie Bs Ge Gi cerseccccctcccesccscecececensee 10

Eugene Volokh, The Trouble with

“Public Discourse” as a Limitation on

Free Speech Rights, 97 Va. L. Rev.

SRA RS ME AR TEs Ae Bey ae Oe TS 29

INTEREST OF THE AMICUS!

First Resort, Inc., is a California non-profit corpo-

ration that operates a pregnancy services counseling

clinic in San Francisco. First Resort believes that

abortion is harmful both to women and their unborn

children, and its vision is to build a Bay Area in which

abortion is neither desired nor seen as needed. In sup-

port of that vision, First Resort does not provide or re-

fer for abortions, but instead empowers women to

make fully-informed decisions in line with their own

beliefs and values, on the belief that, when given ap-

propriate support, unbiased counseling, and accurate

medical information, many women will choose options

other than abortion. All of First Resort’s services are

provided free of charge.

First Resort is concerned that in the vigorous and

vital national debate about abortion, numerous state

and local governments have impermissibly targeted

the speech of counseling organizations like First Re-

sort. The Fourth Circuit recently referred to the ways

in which this “[wJeaponizing [of] the means of govern-

ment against ideological foes’—which can happen

from either side in this or any debate—poses “grave”

risks to “one of our nation’s dearest principles.”

Greater Balt. Ctr. for Pregnancy Concerns, Inc. v.

Mayor & City Council of Balt., F.3d ____s, 2018 WL

298142, at *8 (4th Cir. Jan. 5, 2018) (Greater Balti-

more IIT) (Wilkinson, J.).

' No counsel for a party authored any portion of this brief

or made any monetary contribution intended to fund the

preparation or submission of the brief. Counsel for all par-

ties have consented to the filing of this brief.

One of those grave risks is the distortion of im-

portant First Amendment doctrines by lower courts

upholding such laws. First Resort’s own case is a

prime example. There, the Ninth Circuit upheld a San

Francisco law targeting advertising by “anti-abortion”

pregnancy counselors as viewpvint neutral because

speakers might engage in pro-life speech “for reasons

that have nothing to do with their views on abortion,

such as financial or logistical reasons.” First Resort,

Inc. v. Herrera, 860 F.3d 1263, 1277 (9th Cir. 2017).

And it found that the speech of non-profit pregnancy

centers that provide free assistance was actually “clas-

sic” commercial speech because free assistance is

“commercially valuable,” and because the non-profits

engage in “fundraising” elsewhere. /d. at 1273-74.2

First Resort therefore submits this amicus brief to

ensure that the Court is aware of the full scope of the

distortions of First Amendment doctrine that have

arisen in the lower court cases concerning pregnancy

centers. This case is an important opportunity either

to correct those distortions or to lay the groundwork to

do so in a subsequent case.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

The First Amendment’s protections for minority

speakers are most needed—and most in jeopardy—

when speech relates to deeply important and deeply

controversial issues. When the speech matters most,

2 Amicus expects to file a petition for certiorari by Febru-

ary 1, 2018. See Order of Kennedy, J., Granting Application

for Extension of Time to File for Writ of Certiorari, First

Resort, Inc. v. Herrera, No. 17A600 (U.S. Dec. 5, 2017).

the temptation toward government control is greatest.

This is true both for the political branches the First

Amendment is designed to restrain and, perhaps more

dangerously, for the judges charged with its enforce-

ment.

California’s FACT Act is part of a range of speech

regulations enacted in various jurisdictions to target

pregnancy counselors who will not recommend abor-

tions. Had the lower courts properly applied the First

Amendment, these should have been easy cases. Un-

fortunately, many courts instead twisted important

First Amendment doctrines to uphold these laws. As a

result, important doctrines relating to content-neu-

trality, viewpoint-neutrality, and commercial speech

have been badly warped in a growing body of appellate

decisions. Left in place, these decisions pose a serious

threat to the First Amendment’s power to restrain

governments that would otherwise wish to control mi-

nority speech.

This case presents the Court with an important op-

portunity to correct, or at least begin to correct, some

of those doctrinal distortions. Some of these errors are

on full display in this case, including questions about

how to determine whether a law is content- and view-

point-based. The Court should resolve these questions

here, and thus provide much needed doctrinal correc-

tion. Other errors—chiefly related to the definition of

commercial speech and whether that definition can be

stretched to include non-profit speakers who neither

offer nor engage in commercial transactions with their

audience—received less attention from the panel be-

low, but can either be resolved in this case or in a sub-

sequent case in which the issue has been more thor-

oughly explored.

The freedom to differ depends upon the fair and

faithful application of First Amendment doctrines

that exist to constrain the government temptation to-

ward speech control. That fair and faithful application

has at times been absent in the lower court pregnancy

center cases, creating precedents that, if left uncor-

rected, will result in diminished protection for speak-

ers on a wide variety of issues. This Court has an im-

portant opportunity to at least begin correcting these

doctrinal distortions and ensuring that the First

Amendment continues to protect all speakers, includ-

ing those who may disagree with their governments

on important issues.

ARGUMENT

I. This case presents an important opportunity

to correct doctrinal distortions concerning

content- and viewpoint-neutrality analysis.

This case is best understood as part of a larger

group of cases in which governments have deliberately

targeted speakers for special burdens based on either

their willingness to, or their refusal to, refer for abor-

tions. This “[w]eaponizing [of] the means of govern-

ment against ideological foes,” Greater Baltimore III,

2018 WL 298142, at *8, has led some lower courts to

distort the content- and viewpoint-neutrality analysis

required by the First Amendment.

A. The FACT Act is one of many laws

targeting speech by pro-life pregnancy

counselors.

The FACT Act is one of many restrictions on the

speech of “pregnancy service centers” that have been

enacted “around the country.” First Resort, 860 F.3d

at 1268. Although these restrictions share the same

unconstitutional goal—targeting pro-life pregnancy

centers’ speech for special disfavor—they pursue that

goal in different ways. By Amicus’s count, eleven state

and local governments have enacted pregnancy-center

speech regulations; each of these laws is reproduced in

the Appendix attached to this brief, and their relevant

provisions are summarized below.*

The laws differ first in the nature of the burden

they impose. Most pregnancy-center speech regula-

tions—the FACT Act, plus the laws passed in Austin,

Baltimore, Hartford, Hawai‘i, Illinois, King County,

Montgomery County, and New York City—impose

burdens in the form of compelled speech: they force

pro-life pregnancy centers to disseminate a govern-

ment-composed message, either in their waiting

rooms or otherwise.4 Sometimes (as under the FACT

Act, in Hawai'i, and in Illinois) the compelled message

% Some governments have enacted speech regulations

that target pro-abortion centers. See, e.g., Fla. Stat.

§ 390.025 (1)-(3) (2017) (requiring only those pregnancy

counselors that “provide[ ] advice or help * * * in obtaining

abortions” to, among other things, register with the govern-

ment and provide an explanation of abortion alternatives

before referring women to abortion providers).

4 Appendix (“App.”) 2a; 4a-5a; 1la-13a; 2la-22a; 28a-29a;

37a-38a; 46a-47a; 5la-52a; 58a-61a.

e*%

is effectively an outright abortion referral.®° Under

other laws (Austin, Baltimore, Hartford, King County,

Montgomery County, New York), the message is a dis-

claimer about the scope of the pregnancy center’s ser-

vices—a message that deprives pregnancy centers of

the right to truthfully describe their services in their

own words.®

Other governments—like San Francisco and Oak-

land—have instead taken the tack of passing preg-

nancy-center-specific false-advertising laws that pro-

hibit centers that do not provide or refer for abortions

(but not those that do) from making “untrue or mis-

leading statements concerning their services.”7 San

Francisco has interpreted its law to be violated if, for

instance, a pregnancy center does not provide an ex-

press disclaimer about abortions in its advertising to

women looking for information online about abor-

tion—stretching the idea of falsity far beyond the

breaking point and effectively outlawing local preg-

nancy centers from attempting to reach the very

women they exist to serve.

Second, these laws differ in how they go about tar-

geting pro-life pregnancy centers. Many of these regu-

lations (including in Baltimore, Illinois, Oakland, and

5 Jd. 12a; 28a; 37a-38a.

6 Jd. 2a; 4a; 21a; 46a; 51a; 58a-60a.

7 Jd. 82a-83a; see also id. 72a.

San Francisco) directly target pro-life pregnancy cen-

ters by providing on their face that they apply only to

pregnancy centers that do not provide or refer for abor-

tions.* The FACT Act, however, zeroes in on pro-life

pregnancy centers by way of broad exemptions from

coverage. The Act provides a mechanism for exempt-

ing from coverage for pregnancy centers that can

agree to supply all FDA-approved contraceptive meth-

ods and supplies—a category that includes abortifa-

cients and thus excludes pro-life centers.°

The following chart summarizes the relevant pro-

visions of these laws.

* Id. 4a; 70a; 81a; see also id. 37a-38a (applying only to

service providers who have “conscience-based objections” to

certain procedures, including abortion).

® Id. 11a (exempting centers that are enrolled in the Cal-

ifornia Family PACT program); see also Pet’rs’ Br. at 13-14

(explaining that such centers must provide abortifacients).

Gov't Compelled | False Application

speech advertising | expressly

depends on

whether

speaker re-

fers for

abortion

Austin / "4

Baltimore P J

California y

Hartford J

Hawai'i J J

Illinois J /

King Co

WA /

Mont’y

Co., MD v

New York

City /

Oakland J /

San / /

B. The Court can provide an important cor-

rection to First Amendment neutrality

doctrine.

Two doctrinal distortions related to neutrality test-

ing have arisen in the pregnancy center cases. First,

some courts have suggested that a law can be neutral

despite a governmental purpose to discriminate. Sec-

ond, some courts have suggested that an otherwise

content- or viewpoint-based law might nevertheless be

deemed neutral, depending on the speaker’s purpose

in engaging in speech.

Both errors are on full display in the decision be-

low. There, the panel found the law content-based, but

declined to apply strict scrutiny. Pet. App. 18a-19a.

Further, although the Act was carefully designed to

apply only to pregnancy centers that do not provide or

refer for abortions—and although the legislature’s ex-

press purpose was to target speakers who “discourage”

abortion—the court speculated about speaker motiva-

tions to find the law neutral. Jd. 7a, 20a, 40a.

The Ninth Circuit erred on both counts. “Content-

based laws” like the Act “are presumptively unconsti-

tutional and may be justified only if the government

proves that they” satisfy strict scrutiny. Reed v. Town

of Gilbert, 135 S. Ct. 2218, 2226 (2015). Further, even

a facially-neutral law is considered viewpoint-based if

its “justification or purpose” is to target a particular

viewpoint. Jd. at 2226-29; see also Sorrell v. IMS

Health Inc., 564 U.S. 552, 564-65 (2011) (applying

heightened scrutiny because the “legislature de-

signed” the law at issue “to target [certain] speakers

and their messages for disfavored treatment”). That

plainly is the case here: the Act exempts from coverage

pregnancy centers that provide or refer for abortion,

and the legislative history confirms that its purpose

was to target pregnancy centers that advocate against

abortion.

The Ninth Circuit’s errors are independent, but

they stem from a common source: confusion about to

what extent purpose matters in Speech Clause juris-

prudence, and if it does, whose. The court ignored the

legislature’s purpose to target centers that “discour-

age * * * women from seeking abortions.” Pet. App. 7a.

While ignoring the government’s purpose, the panel

based its neutrality finding on guesswork about the

speaker’s purpose. Jd. 20a (reutral because some

speakers may refuse to refer without having “objec-

tions” to abortion).

This reasoning gets this Court’s cases precisely

backward. One object of this Court’s Free Speech doc-

trines is “the discovery of improper governmental mo-

tives.” Elena Kagan, Private Speech, Public Purpose:

The Role of Governmental Motive in First Amendment

Doctrine, 63 U. Chi. L. Rev. 413, 414 (1996). Mean-

while, “[uJnder well-accepted First Amendment doc-

trine, a speaker’s motivation is entirely irrelevant to

the question of constitutional protection.” FEC v. Wis.

Right to Life, Inc., 551 U.S. 449, 468 (2007) (opinion of

Roberts, C.J., joined by Alito, J.) (emphasis added)

(quoting M. Redish, Money Talks: Speech, Economic

Power, and the Values of Democracy 91 (2001)); see

also id. at 492 (Scalia, J., concurring in part and con-

curring in the judgment, joined by Kennedy and

Thomas, JJ.) (“test[s] that [are] tied to * * * a court’s

perception” of the speaker’s “intent” are “ineffective to

vindicate *** fundamental First Amendment

rights”); Matal v. Tam, 137 S. Ct. 1744, 1766 (2017)

(Kennedy, J., concurring, joined by Ginsburg, So-

tomayor, and Kagan, JJ.) (rejecting the argument that

a law was viewpoint-neutral because it applied “re-

gardless of the [speaker]’s personal views or reasons

for” engaging in the speech). The Ninth Circuit’s rul-

ing to the contrary was both wrong and part of a dan-

gerous trend.

1. Content- and viewpoint-discriminatory

laws, including those enacted for the pur-

pose of discriminating on the basis of con-

tent or viewpoint, are subject to strict

scrutiny.

Before Reed, many lower courts—including the

Ninth Circuit—had held that a governmental motive

to censor particular subject matter or a particular

viewpoint was the sine qua non of content- or view-

point discrimination. For these courts, “it did not mat-

ter if a law regulated speakers based on what they

said”; “so long as the regulation of speech was not im-

posed because of government disagreement with the

message,” the law would be treated as content- and

viewpoint-neutral. Norton v. City of Springfield, 806

F.3d 411, 413 (7th Cir. 2015) (Manion, J., concurring);

see also McCullen v. Coakley, 571 F.3d 167, 176 (lst

Cir. 2009) (‘Our principal inquiry in this regard * * *

‘is whether the government has adopted a regulation

of speech because of disagreement with the message”’)

(quoting Ward v. Rock Against Racism, 491 U.S. 781,

791 (1989)).

In McCullen v. Coakley, 134 S. Ct. 2518 (2014),

however, this Court affirmed what should have been

obvious all along: that a speech regulation could also

be content- or viewpoint-based if its application de-

pended on the content or viewpoint of the regulated

speech, even absent a discriminatory purpose. A con-

tent-based law, the Court explained, “draw/|s] content-

based distinctions on its face.” Jd. at 2531. And a law

violates this test if “it require[s] enforcement authori-

ties to examine the content of the message that is con-

veyed to determine whether a violation has occurred.”

Id. (internal quotation marks omitted).

Reed then confirmed McCullen’s reorientation of

the content-neutrality inquiry to begin with the actual

text of the law. Reiterating McCullen, this Court ex-

plained in Reed that “the crucial first step in the con-

tent-neutrality analysis” is “determining whether the

law is content neutral on its face”—that is, whether it

“draws distinctions based on the message a speaker

conveys.” 135 S. Ct. at 2227. At the same time, how-

ever, the Reed Court made clear that the inquiry into

facial neutrality supplements, but does not replace, the

inquiry into whether a law has a content- or view-

point-discriminatory purpose. In other words, a “law

that is content based on its face is subject to strict

scrutiny regardless of the government’s benign mo-

tive, content-neutral justification, or lack of ‘animus

toward the ideas contained’ in the regulated speech.”

Id. at 2228 (quoting Cincinnati v. Discovery Network,

Inc., 507 U.S. 410, 429 (1 393)). But if a law is moti-

vated by an “illicit legislative intent’—for example, “to

suppress disfavored speech” or express “disagreement

with the message the [regulated] speech conveys’”—

then it, too, is subject to strict scrutiny, even if it is

facially content- and viewpoint-neutral. Jd. at 2227-29

(internal quotation marks omitted). Intent to suppress

speech is thus a sufficient but not necessary element

of a content or viewpoint discrimination claim.

This Court’s earlier decision in Sorrell illustrates

Reed's point. In Sorrell, the Court applied heightened

scrutiny for two reasons: facial discrimination and dis-

criminatory purpose. 564 U.S. at 563-65. The law at

issue prohibited “the sale, disclosure, and use of phar-

macy records that reveal the prescribing practices of

individual doctors”—activities that “essentially * * *

only” pharmaceutical manufacturers engaged in. /7.

at 557, 564 (internal quotation marks omitted). The

Court thus found that the inevitable effect of the law

was to burden the pro-brand-name-drug viewpoint. /d.

at 564-65. Further, “formal legislative findings”

demonstrated that the legislature had “designed [the

law] to target [pharmaceutical manufacturers] and

their messages for disfavored treatment.” Jd. This

combination of the law’s “practical operation” and ex-

press legislative purpose rendered the law viewpoint-

based, regardless of whether it was also facially view-

point-based. /d. at 565 (quoting R.A.V. v. St. Paul, 505

U.S. 377, 391 (1992)).

Finally, in Matal, this Court confirmed that while

the governments purpose may be relevant, the

speaker's purpose for speaking is not. In Matai, this

Court held unconstitutional a feder: | statute prohibit-

ing the registration of “disparag|ing]” trademarks. 137

S. Ct. at 1751. The government argued that the law

was viewpoint-neutral because “the disparagement

clause applies to trademarks regardless of the appli-

cant’s personal views or reasons for using the mark.”

Id. at 1766. But the Court unanimously rejected this

argument and found the law viewpoint-based. /d. at

1763 (opinion of Alito, J.); 1765-67 (opinion of Ken-

nedy, J.). As Justice Kennedy explained for four Jus-

tices, “[t}he danger of viewpoint discrimination is that

the government is attempting to remove certain ideas

or perspectives from a broader debate.” Jd. at 1767.

This danger is realized whenever the government “sin-

gle[s] out * * * for disfavor” a “subset of messages”

from some larger “subject category’—regardless of

why the speaker chooses to deliver the message. /d. at

1766 (citing Cornelius v. NAACP Legal Defense & Ed.

Fund, Inc., 473 U.S. 788, 806 (1985)).

2. The Act should be subject to strict scru-

tiny.

The Act is content- and viewpoint-discriminatory,

thus triggering strict scrutiny, for two independent

reasons.

First, the Act is a content-based regulation of core

protected speech. Pet. App. 18a. Under Reed, such a

law automatically triggers strict scrutiny. 135 S. Ct.

at 2227.

Second, the Act is viewpoint-based, because its

manifest purpose and effect is to discriminate against

speech by pro-life pregnancy centers. The express leg-

islative purpose of the Act is to target pregnancy cen-

ters that “discourage * * * women from seeking abor-

tions.” Pet. App. 6a-7a. Unsurprisingly, then, the Act

exempts from its coverage all pregnancy centers that

are enrolled in state programs and supply all FDA-ap-

proved contraceptive methods and supplies—a cate-

gory that includes abortifacients. App. 11a (exempting

centers that are enrolled in the California Family

PACT program); Pet’rs’ Br. at 13-14, 33. Thus, the “in-

evitable effect” and “practical operation” of the law is

to burden the speech only of pro-life pregnancy cen-

ters. Sorrell, 564 U.S. at 565 (internal quotation

marks omitted).

The Ninth Circuit nonetheless found the law view-

point-neutral, Pet. App. 19a-22a, because it wrongly

focused on the speaker’s purpose for speaking rather

than the government’s purpose for regulating. The

court refused to engage with Petitioners’ argument

that the Act’s exemptions rendered pro-life pregnancy

centers virtually the only speakers subject to the Act,

because, according to the court, the Act is “indifferent

to the basis for any objection” that pregnancy centers

who do not provide or refer for abortions may have to

abortion. Jd. 40a; see also id. 20a (the Act “applies * * *

regardless of what, if any, objections [regulated cen-

ters] may have to certain family-planning services”).

But what matters under this Court’s viewpoint-dis-

crimination precedents is simply whether a law sin-

gles out one position within a broader subject matter;

it is irrelevant if speakers may have different “views

or reasons for” speaking with that viewpoint. Matai,

137 U.S. at 1766; see also Air Line Pilots Ass’n, Int'l v.

Dep't of Aviation of Chi., 45 F.3d 1144, 1169 (7th Cir.

1995) (“[T]he same viewpoint can be endorsed by dif-

ferent speakers, for different purposes. Any analysis

of allegations of viewpoint discrimination must recog-

nize as much.”).

Here, within the larger category of pregnancy cen-

ters that speak about abortion, the Act singled out for

disfavored treatment centers that refuse to recom-

mend it. It no more matters why the regulated centers

took this position than it mattered why the Slants

chose their band name in Matal—or, for that matter,

than it would matter in a challenge to a law prohibit-

ing yard signs for Democratic (but not Republican)

candidates if it turned out that the plaintiff wanted to

display the sign in jest or only because he had lost a

bet. Regardless of the plaintiffs motivations, such a

law would patently be viewpoint-based.

3. The Ninth Circuit’s errors with respect to

content and viewpoint discrimination are

reflected in other pregnancy-center cases,

too.

The Ninth Circuit's errors reflect widespread con-

fusion in the lower courts regarding the application of

this Court’s modern Speech Clause jurisprudence to

various pregnancy center speech regulations that

have been enacted around the country.

For instance, in First Resort, the same Ninth Cir-

cuit panel that decided NIFLA considered a San Fran-

cisco ordinance that prohibits pregnancy centers that

do not provide or refer for abortions from making “un-

true or misleading” statements “concerning thfeir] ser-

vices.” 860 F.3d at 1270 (quoting S.F. Admin. Code, ch.

93 § 93.4). The First Resort court did not dispute that

the ordinance was content-based, id. at 1275-76—nor

could it, as the ordinance by its terms applies only to

advertisements that “concern” the services of a preg-

nancy center and are made by pregnancy centers that

do not provide or refer for abortion or emergency con-

traceptives. The ordinance is thus “content based [be-

cause] it require[s] enforcement authorities to exam-

ine the content of the message that is conveyed to de-

termine whether a violation has occurred.” See McCul-

len, 134 S. Ct. at 2531 (internal quotation marks omit-

ted). Nonetheless, the Ninth Circuit declined to apply

strict scrutiny because, in its view, the ordinance ap-

plied only to “false or misleading commercial speech,”

which is outside the protection of the First Amend-

ment. First Resort, 860 F.3d at 1271-74.

As explained below, the First Resort court erred in

determining that the regulated speech was “commer-

cial.” See Part II, infra. But even if the speech were

commercial, that still would not save it from strict

scrutiny.

Even in the context of commercial speech, view-

point discrimination is still forbidden. 44 Liquormart,

Inc. v. Rhode Island, 517 U.S. 484, 513 (1996) (“It is

perfectly clear that Rhode Island could not ban all ob-

scene liquor ads except those that advocated temper-

ance{[.]”); see also Matal, 137 S. Ct. at 1765 (Kennedy,

J., concurring) (explaining that commercial speech

regulations discriminating based on viewpoint are

egregious forms of content-based restrictions that are

almost per se unconstitutional); Wandering Dago, Inc.

v. Destito, __ F.3d __, 2018 WL 265383, at *14 (2d

Cir. Jan. 3, 2018) (“Matal instructs that viewpoint dis-

crimination is scrutinized closely whether or not it oc-

curs in the commercial speech context.”).!°

In finding the law viewpoint-neutral, the First Re-

sort court refused to consider the government’s pur-

pose. First Resort, 860 F.3d at 1278 (“To the extent

'0 The panel was wrong to think such discrimination irre]-

evant simply because the government claimed to be regu-

lating “false and misleading commercial speech.” Under

R.A.V., the government is barred from discriminating

within even categories of speech that are otherwise consid-

ered outside the First Amendment. 505 U.S. at 383.

First Resort argues that the Ordinance is a viewpoint-

based regulation of speech on the grounds that the

City had an illicit motive, that argument also fails.”

(citing United States v. O’Brien, 391 U.S. 367, 383

(1968)). Instead, it focused on the speaker’s purpose,

holding that speakers could have different reasons for

not providing or referring for abortions, which might

“have nothing to do with their views on abortion.” /d.

at 1277 (citing Greater Balt. Ctr. for Pregnancy Con-

cerns, Inc. v. Mayor & City Council of Balt., 721 F.3d

264, 288 (4th Cir. 2013) (Greater Baltimore II) (en

banc)).

This holding that speaker purpose controls, and

that governmental purpose is irrelevant, is rich with

irony; again, before Reed, the Ninth Circuit had held

that only a discriminatory governmental purpose

could trigger strict scrutiny. Reed v. Town of Gilbert,

707 F.3d 1057, 1071-72 (9th Cir. 2013), rev'd, 135 S.

Ct. 2218 (2015). Further, to hold that the govern-

ment’s purpose for regulating doesn’t matter while the

speaker's purpose for speaking does is, again, to turn

this Court’s cases on their head. Under Reed and Sor-

rell, the government’s purpose for regulating may be

relevant to determining if a law discriminates on the

basis of content or viewpoint. But in determining

whether a law discriminates on the basis of viewpoint,

the speaker’s purpose for speaking is not relevant: a

law that singles out one particular viewpoint for spe-

cial burdens impermissibly “distort[s] the market-

place of ideas,” even if different speakers might have

different “personal views or reasons for” adopting the

viewpoint. Matal, 137 S. Ct. at 1766 (Kennedy, J.).!!

'! Qutside of pregnancy-center cases, most courts have

correctly recognized that under Reed a law is subject to

strict scrutiny if it either is content- or viewpoint-discrimi-

natory on its face or it was passed for the purpose of dis-

criminating on the basis of content or viewpoint. See, e.g.,

March v. Mills, 867 F.3d 46, 54 (1st Cir. 2017) pet. for cert.

filed, Nov. 9, 2017 (No. 17-689) (under Reed, “|t]here are

two distinct ways in which a regulation may be deemed to

be content based,” facial content discrimination, and a con-

tent-discriminatory purpose); Time Warner Cable Inc. v.

F.C.C., 729 F.3d 137, 155 (2d Cir. 2013) (same) Free Speech

Coal., Inc. v. Att'y Gen. U.S., 825 F.3d 149, 160 (3d Cir.

2016) (same); Cahaly v. Larosa, 796 F.3d 399, 405 (4th Cir.

2015) (same) Pursuing Am.’s Greatness v. Fed. Election

Comm'n, 831 F.3d 500, 509 (D.C. Cir. 2016) (same).

But in Phelps-Roper v. City of Manchester, 867 F.3d 883

(8th Cir. 2017), the Eighth Circuit, echoing the Ninth Cir-

cuit in NIFLA and First Resort, held that “[rjegardless of

any evidence” that the legislature had a viewpoint-discrim-

inatory purpose in passing the law at issue, the law was

“neutral un its face” and thus not viewpoint discriminatory.

Id. at 892. This split of authority regarding whether Reed

recognizes two paths to strict scrutiny (facial discrimina-

tion or a discriminatory purpose) or just one (facial discrim-

ination only) is another reason for this Court to either

clearly reiterate that a law passed with a viewpoint-dis-

criminatory purpose is subject to strict scrutiny or else

agree to hear another case cleanly presenting the issue.

The Ninth Circuit is not alone in this error. In an-

other pregnancy center case, the en banc Fourth Cir-

cuit considered a regulation requiring pro-life preg-

nancy centers to post “disclaimer|[s]” in their waiting

rooms stating that they “do[ ] not provide or make re-

ferral for abortion or birth-control services,” Greater

Baltimore II, 721 F.3d at 271 (quoting Baltimore ordi-

nance at issue). Even though the law applied only to

pregnancy centers that do not provide or refer for abor-

tions, the en banc court reversed the district court’s

conclusion that the law was viewpoint-based, relying

on the court’s own speculation about speaker pur-

poses. In particular, the court thought there might be

pregnancy centers who do not refer for abortion but

have “no moral or religious qualms” about abortion.

721 F.3d at 288 (internal quotation marks omitted).

The court cited no authority for its proposition that the

viewpoint-neutrality inquiry requires the court to de-

termine whether a speaker has a moral or religious

motive for expressing a particular viewpoint. See id.

Yet this unsupported statement from Greater Balti-

more II became the sole basis for the First Resort court

to arrive at the same proposition four years later. First

Resort, 860 F.3d at 1277.'2

In contrast to this case, First Resort, and Greater

Baltimore II, the district court in Centro Tepeyac ap-

propriately applied strict scrutiny upon determining

'2 After years of discovery confirmed that the Greater Bal-

timore pregnancy center's “clearest motivation” was indeed

“moral, philosophical, and religious,” the Fourth Circuit ul-

timately recognized that the law at issue there discrimi-

nated on the basis of viewpoint. Greater Baltimore III, 2018

WL 298142, at *4, 6.

that a pregnancy center speech regulation was con-

tent-based. There, the court explained that because

the regulation at issue “require|d] [pregnancy centers]

to say something [they] might not otherwise say,” it

was content-based and triggered strict scrutiny. Cen-

tro Tepeyac v. Montgomery County, 779 F. Supp. 2d

456, 462 (D. Md. 2011), affd 722 F.3d 184 (4th Cir.

2013) (en banc). The court correctly found it “unneces-

sary to address” the pregnancy center’s additional con-

tention that the regulation also was viewpoint-based,

because content-based laws trigger strict scrutiny. 779

F. Supp. 2d at 461-62.

Finally, other district courts have had no trouble

concluding that a speech regulation whose applicabil-

ity turns on whether a speaker provides or refers for

abortions discriminates not just based on content, but

also on viewpoint. In National Institute of Family &

Life Advocates v. Rauner, the court considered an IIli-

nois law that compelled pregnancy centers with “con-

science-based objections” to abortion to either “inform

their patients about abortion and counsel them on [its]

risks and benefits” or lose the protection of a state law

protecting healthcare providers from having to pro-

vide abortions directly. Order, National Institute of

Family & Life Advocates v. Rauner, No. 16 C 50310,

ECF 65, at 2, 7 (N.D. Ill. July 19, 2017). The court held

that the law was both content- and viewpoint-based.

Id. at 6-&

Meanwhile, in Fulwilder v. Senior, the Northern

District of Florida considered the converse of the laws

at issue in the pregnancy-center cases discussed

above: a law that compelled speech by and required a

license for only organizations that do refer for abor-

tions. Prelim. Injunction, Fulwilder v. Senior, No.

4:16-cv-00765, ECF 43, at 2 (N.D. Fla. Sept. 29, 2017)

(citing Fla. Stat. § 390.025). The court held that be-

cause the law “requir|jed] a person to register and pay

a fee when providing advice or help in favor of abortion

but not in opposition,” the law was “plainly viewpoint-

based.” Jd. at 20; see also id. at 21 (law was a “naked

effort to impede speech * * * promoting a disfavored

but legal viewpoint”). Precisely the same reasoning

should apply to laws, like the FACT Act and the others

described above, that impose burdensome speech reg-

ulations on persons when providing advice or help in

opposition to abortion but not in favor of it.

* * a

This Court should craft its disposition in this case

so as to resolve the confusion about how Reed, Sorrell,

and Matal apply to the various pregnancy center

speech regulations that have been enacted around the

country. When a speech regulation regulates core pro-

tected speech on the basis of content or viewpoint, it is

subject to strict scrutiny. In determining whether a

law regulates on the basis of viewpoint, the govern-

ment’s purpose for regulating is relevant, but the

speaker's purpose for speaking is not. These rules—

fundamental to ensuring that the government does

not impermissibly put a thumb on the scale in the

hotly contested and deeply important societal debate

over abortion—should apply to abortion-related

speech just as they do to any other type of speech.

Il. This case presents an important oppor-

tunity to clarify that the “commercial” and

“professional” speech categories cannot be

used to shield ideological speech _ re-

strictions from strict scrutiny.

In the lower court, Respondents attempted to avoid

the ineluctable result of the Act’s content- and view-

point-based discrimination—strict scrutiny—by

claiming that the Act regulates only “professional” and

“commercial” speech subject to lower tiers of constitu-

tional protection. The Ninth Circuit summarily re-

jected the commercial speech argument, reasoning in

a footnote that while “[clommercial speech does no

more than propose a commercial transaction,” the Act

“primarily regulates the speech that occurs within the

clinic,” where pregnancy centers propose no commer-

cial transactions but rather provide their counseling

services on a pro bono basis. Pet. App. 18a-19a n.5 (in-

ternal quotation marks omitted). But the court ac-

cepted the professional speech argument as to the

Act’s Licensed Notice, holding that because that notice

applies only to licensed pregnancy centers, all the

speech regulated under that provision of the Act “oc-

curs between professionals and their clients in the

context of their professional relationship” and can ac-

cordingly be regulated subject only to intermediate

scrutiny. Jd. 28a-33a.

The court was right about commercial speech and

wrong about professional speech, largely for the same

reason: neither doctrine applies to morally and relli-

giously-motivated counseling services offered for free.

Regarding professional speech, this Court has “never

formally endorsed the professional speech doctrine” in

the first place. Serafine v. Branaman, 810 F.3d 354,

359 (5th Cir. 2016). But this Court has rejected argu-

ments to subject pro bono speech offered by a licensed

professional to a lower tier of constitutional scrutiny.

In re Primus, 436 U.S. 412 (1978); NAACP v. Button,

371 U.S. 415 (1963).

As for commercial speech, the very reason the doc-

trine exists is that this Court has presumed that

speech in which the speaker offers to sell something to

the listener is “more durable than other kinds” of

speech. Virginia State Bd. of Pharm. v. Va. Citizens

Consumer Council, Inc., 425 U.S. 748, 771 n.24 (1976).

And the Court’s cases have closely tracked this ra-

tionale. “[T]he test” for whether speech is commercial,

this Court has explained, is whether it is a “proposal

of a commercial transaction,” Discovery Network, 507

U.S. at 423 (quoting Bd. of Trustees of State Univ. of

New York v. Fox, 492 U.S. 469, 473-74 (1989)) (empha-

sis in Discovery Network). This test plainly is noc sat-

isfied when the speaker doesn’t sell anything at all.

Nonetheless, courts around the country have

struggled to apply this Court's commercial speech

precedents to the principles-driven, nonpecuniary

speech engaged in by pro-life pregnancy centers. Two

courts—the Ninth Circuit in First Resort and the en

banc Fourth Circuit in Greater Baltimore Il—have dis-

pensed with the requirement that commercial speech

“propose a commercial transaction,” instead suggest-

ing that if a pregnancy center offers commercially val-

uable services, or if it could at some point have greater

success in raising funds for its mission by virtue of the

success of its counseling services, its speech may be

treated as commercial. First Resort, 860 F.3d at 1271-

74; Greater Baltimore II, 721 F.3d at 284-87.'* This

novel approach replaces this Court’s “propose a com-

mercial transaction” test with an amorphous multi-

factor test under which no one element is either nec-

essary or sufficient. First Resort, 860 F.3d at 1273-74;

Greater Baltimore II, 721 F.3d at 285-86. It ignores

that “the solicitation of charitable contributions is” it-

self “protected speech.” Riley v. Nat'l Fed’n of the Blind

of N.C., Inc., 487 U.S. 781, 789 (1988). And it also ef-

fects a sweeping expansion of the commercial speech

doctrine, subjecting a vast swath of speech by ideolog-

ically-oriented nonprofit organizations to lower levels

of constitutional protection, and higher levels of gov-

ernment control.

In addition to addressing professional speech,

then, this Court could use this case as an opportunity

to resolve the distortions in the commercial speech

doctrine that have arisen in the lower courts’ preg-

nancy-center cases. Alternatively, if the Court does

not address the commercial speech doctrine here, it

should agree to hear another pregnancy-center case

presenting the issue more fully, such as First Resort.

A. Under this Court’s cases, pro-life advocacy

by pregnancy centers is not commercial

speech.

This Court has held that speech regulations may

sometimes be subject to lower tiers of constitutional

‘8 After several years of additional discovery, the trial

court found, and a Fourth Circuit panel recently affirmed,

that the particular pregnancy center at issue in Greater

Baltimore was not engaged in commercial speech. Greater

Baltimore ITI, 2018 WL 298142, at *3-4.

scrutiny if the speech regulated can be characterized

as “commercial.” See Cent. Hudson Gas & Elec. Corp.

v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 566 (1980).

But this doctrine cannot apply to the moral and reli-

gious advocacy at issue in this and other pregnancy-

center cases. Indeed, this Court has long accepted that

religious groups can solicit funds or even invite pur-

chases without their speech becoming “commercial.”

Murdock v. Pennsylvania, 319 U.S. 105, 111 (1943)

(speech was not commercial “merely because the

handbills invite the purchase of books for the im-

proved understanding of the religion or because the

handbills seek in a lawful fashion to promote the rais-

ing of funds for religious purposes”). Otherwise, “the

passing of the collection plate in church would make

the church service a commercial project.” /d.

Between pregnancy centers and the women who

come to them for help, there is not even a passing of

the plate. And this Court has never held that speech

by entities who provide all their services for free and

in furtherance of a moral or religious mission can be

regulated as “commercial.”

This Court has explained the “commonsense differ-

ences” between commercial speech and other speech,

providing “a different degree of protection” to commer-

cial speech because “commercial speech may be more

durable than other kinds.” Va. State Bd., 425 U.S. at

771 n.24. “Since advertising is the [s]line qua non of

commercial profits, there is little likelihood of its being

chilled by proper regulation and forgone entirely.” /d.

This logic, centered on the power of profits to make

speech more durable, plainly dissolves when the

speaker merely wants to render her listener free ser-

vices.

No wonder, then, that since Virginia State Board,

this Court has repeatedly held that “the test” for com-

mercial speech is whether it is a “proposal of a com-

mercial transaction.” Discovery Network, 507 U.S. at

429 (quoting Fox, 492 U.S. at 473-74). And it has ar-

ticulated the archetypical example of such speech as

“T will sell you the X [product] at the Y price.” Va. State

Bd., 425 U.S. at 761. This type of speech—speech that

proposes a commercial transaction and thus relates

“to the economic interests of [both] the speaker and its

audience,” Cent. Hudson, 447 U.S. at 561—is a mini-

mum requirement for speech to be characterized as

“commercial” for purposes of the commercial speech

doctrine.

Contrary to the assertion of some courts in preg-

nancy-center cases discussed below, this Court did not

waver from this principle in Bolger v. Youngs Drug

Prods. Corp., 463 U.S. 60 (1983). There, the Court con-

sidered whether informational pamphlets that did not

just propose a commercial transaction but also “con-

tain[ed] discussions of important public issues” could

be characterized as commercial. Jd. at 67-68. The

Court held that when evaluating speech that “cannot

be characterized merely as proposals to engage in com-

mercial transactions,” courts should look to three fac-

tors to determine whether the speech as a whole

should be treated as commercial: whether the speech

constitutes an “advertisement|]”; whether it “refer-

ence[s] a specific product’; and whether the speaker

“has an economic motivation for” speaking. Id. at 66-

67 (emphasis added). In other words, under Bolger,

the mere addition of noncommercial elements cannot

transform otherwise commercial proposals into non-

commercial speech; courts must apply the Bolger fac-

tors to determine whether speech mixing the two

should be treated as ultimately “commercial” or not.

Id.; cf. Murdock, 319 U.S. at 111 (appending “moral

platitudes” not enough). But nothing in Bolger dis-

penses with the bedrock requirement that for speech

to be considered commercial, the speaker must pro-

pose a commercial transaction in the first place. And

indeed, since Bolger, this Court has repeatedly reaf-

firmed in no uncertain terms that “the difference be-

tween commercial and noncommercial speech” is that

commercial speech is “define[d]” as “speech that pro-

poses a commercial transaction.” Fox, 492 U.S. at 482;

Discovery Network, 507 U.S. at 423.

Here, under this Court’s longstanding test, the

Ninth Circuit was correct to conclude that the speech

by licensed pregnancy clinics who provide all of their

services for free is not “commercial.” Pet. App. 18a-19a

n.5. Observing that commercial speech “propose|s] a

commercial transaction,” the Ninth Circuit easily dis-

posed, in a footnote, of California’s claim that the clinic

speech was commercial. Jd. There are obviously no

commercial transactions being proposed in a clinic

that offers its services for free.

B. The Ninth Circuit’s “professional speech”

holding is in clear conflict with this

Court’s cases.

Although the so-called “professional speech” doc-

trine has different origins than the commercial speech

doctrine, it, too, is rooted in the notion that a speaker's

interest in obtaining money from a listener can poten-

tially justify higher levels of regulation. Lower courts

have traced the doctrine back to a concurring opinion

in Thomas v. Collins, 323 U.S. 516 (1945), in which

Justice Jackson articulated the justification for profes-

sional-licensing schemes as being based on “[t]}he mod-

ern state['s] * * * duty to protect the public from those

who seek for one purpose or another to obtain its

money.” Id. at 545 (emphasis added). As with commer-

cial speech, this justification obviously dissolves when

the speaker is not attempting to obtain money from

his listener.

And as with commercial speech, this Court’s deci-

sions demonstrate that nonremunerative speech re-

ceives full constitutional protection—even when it is

offered by a professional. In Primus, a lawyer was dis-

ciplined for the ethical violation of soliciting a poten-

tial client for the ACLU. Primus, 436 U.S. at 418-21.

But because the lawyer’s solicitation had consisted of

offering the ACLU’s pro bono services, the Court held

that the lawyer’s solicitation “c[a]me[] within the gen-

erous zone of First Amendment protection.” Jd. at 422,

431. In so holding, the Primus Court distinguished the

case from another decided the same day, Ohralik «

Ohio State Bar Assn., 436 U.S. 447 (1978), in which

the Court upheld disciplinary action against an attor-

ney for solicitation. The distinguishing factor: unlike

in Ohralik, the solicitation in Primus was not “for pe-

cuniary gain.” Primus, 436 U.S. at 422; see also Eu-

gene Volokh, The Trouble with “Public Discourse” as a

Limitation on Free Speech Rights, 97 Va. L. Rev. 567,

575 n.20 (2011) (Primus distinguished Ohralik by “ex-

pressly stress[ing] the commercial nature of the trans-

action” at issue in Ohralik).

Here, the Ninth Circuit concluded that any “speech

within [the clinics’] walls related to their professional

services is professional speech” “[bjecause licensed

clinics offer medical and clinical services in a profes-

sional context.” Pet. App. 30a. But this analysis is ir-

reconcilable with Primus, given that in Primus, too,

the speech “related to [the lawyer's] professional ser-

vices,” id.: it was an offer of such services to a potential

client.

Failing to distinguish Primus, the Ninth Circuit ef-

fectively conceded that it was rejecting it, stating: “We

do not think a necessary element of professional

speech is for the client to be a paying client. A lawyer

who offers her services to a client pro bono, for exam-

ple, nonetheless engages in professional speech.” /d.

32a n.8. But this flatly disregards this Court’s holding

in Primus that a “lawyer who offers her services to a

client pro bono” engages in fully protected speech.

C. Other pregnancy-center cases demon-

strate confusion over commercial speech

doctrine, which should be considered in

this Court’s disposition of this case.

As with the NIFLA court’s errors with respect to

this Court’s content- and viewpoint-discrimination ju-

risprudence, the NIFLA court’s error with respect to

professional speech reflects widespread confusion in

the lower courts regarding the application of this

Court’s commercial- and professional-speech prece-

dents to pregnancy center speech regulations. This

Court’s commercial speech precedents make clear that

the sine qua non of commercial speech is that the

speech proposes a commercial transaction. Yet the

Ninth Circuit has held, and the Fourth Circuit has

suggested, that proposing a commercial transaction is

not a necessary element of a commercial speech de-

fense.

In First Resort, the same Ninth Circuit panel that

decided NIFLA held that the regulated pregnancy-

center speech was “commercial,” even though the

pregnancy center provided all of its services for free

and proposed no commercial transactions to its cli-

ents. The speech regulated by the San Francisco ordi-

nance was “statement|s] * * * concerning services pro-

vided by” pregnancy centers that do not provide or re-

fer for abortions—that is, advertisements for such

pregnancy centers’ counseling services. 860 F.3d at

1272 (internal quotation marks omitted). But First

Resort’s advertisements were not proposals for a com-

mercial transaction; they were efforts to attract listen-

ers for the center’s free counseling services, during

which the center, for moral and religious reasons,

would provide women with information about preg-

nancy in the hope that they would choose a non-abor-

tion option. Jd. at 1267-68, 1276.

The court nonetheless applied the commercial

speech doctrine. It first recognized that “commercial

speech is defined as speech that does no more than

propose a commercial transaction,” but it held that

speech that satisfies the Bolger factors could also be

considered commercial. /d. at 1272 (internal quotation

marks omitted). It then held that the regulated speech

satisfied the Bolger factors. Regardirg the third factor,

the court concluded that First Resort engaged in ad-

vertising for the “economic motive” of “solicit[ing] a pa-

tient base.” Jd. Even though First Resort “dofes] not

* * * receive payments from patients for services ren-

dered,” the court reasoned, its “ability to fundraise” is

improved the more women it serves, because it can use

“client stories” in fundraising. Jd. at 1273. Further,

the court concluded, even if First Resort did not have

an economic motive for its speech—and thus even if

the third Bolger factor was not satisfied—its speech

could still be considered commercial, because the ser-

vices it offers are “commercially valuable.” Jd. at 1273-

74.

This Court’s cases provide no support for the First

Resort court’s sweeping view of commercial speech.

First, as explained above, the Bolger factors are useful

only for evaluating speech that in addition to propos-

ing a commercial transaction, also includes speech on

political, religious, moral, or other noncommercial

subjects. The Bolger factors cannot be used to render

speech “commercial” that does not propose a commer-

cial transaction at all. “[T]he test for identifying com-

mercial speech,” this Court has repeatedly held, looks

for whether there has been a “proposal of a commercial

transaction.” Discovery Network, 507 U.S. at 423

(quoting Fox, 492 U.S. at 473-74). Because the First

Resort court held the regulated speech to be “commer-

cial” even though the pregnancy center did not propose

a commercial transaction, the court clearly erred.

But the court also erred in its breathtakingly broad

reading of the Bolger factors themselves. Under the

First Resort court’s view of Bolger—under which the

mere possibility of improved fundraising provides the

requisite “economic motive,” First Resort, 860 F.3d at

1272—broad swaths of core political, religious, and

moral advocacy could be regulated as commercial. To

take one example, a church’s advertisements for its

worship services would qualify as commercial under

the First Resort court’s reasoning. A church, too, im-

proves its fundraising opportunities by attracting

more people to its services; the more congregants there

are, the more likely it is that the offering plate will be

filled. And churches, too, often give away for free

things of “commercial value,” like musical perfor-

mances, moral and spiritual instruction, and even

“sacramental wine, communion wafers, [and] prayer

beads.” Greater Balt. Ctr. for Pregnancy Concerns, Inc.

v. Mayor & City Council of Balt., 683 F.3d 539, 554

(4th Cir. 2012) (Greater Baltimore J) (internal quota-

tion marks omitted). But advertisements for worship

services were precisely the kind of speech this Court

held to be fully protected in Reed. 135 S. Ct. at 2225.

And indeed, this Court more than seventy years ago

rejected as absurd the notion that “the passing of the

collection plate in church would make the church ser-

vice a commercial project.” Murdock, 319 U.S. at 111.

Strikingly, First Resort's commercial speech rea-

soning rested entirely on other pregnancy-center

cases. First, the First Resort court found “persuasive”

(860 F.3d at 1273) the North Dakota Supreme Court’s

decision in Fargo Women’s Health Org., Inc. v. Larson,

381 N.W.2d 176 (N.D. 1985). There, the court upheld

as a regulation of “commercial speech” an injunction

preventing pro-life pregnancy centers from falsely or

misleadingly indicating in their advertisements that

they performed abortions. Jd. at 177, 179. The Larson

court pioneered the unbounded view of commercial

speech later adopted in First Resort, holding that be-

cause the pregnancy center’s advertisements were

placed “in a commercial context,” the advertisements

were commercial, even though the center argued that

its advertisements constituted “advocacy of the pro-

life position” and that it charged nothing for the ad-

vertised services. Jd. at 180-81.

First Resort also relied on the Fourth Circuit’s en

banc decision in Greater Baltimore II. Unlike the :aws

in First Resort and Larson, the Greater Baltimore law

did not regulate advertising; indeed, it “applie[d] to

all” pregnancy centers that do not provide or refer for

abortions “regardless of whether they advertise at all.”

Greater Baltimore I, 683 F.3d at 558. For this reason,

the district court rejected the government’s argument

that the ordinance regulated commercial speech, and

the Fourth Circuit panel—correctly finding it “dispos-

itive” that the ordinance “target[ed] speech regarding

the provision of ‘free services” and that the regulated

center did not “proposie] any commercial transac-

tion” —affirmed. /d. at 553-54.

The en banc Fourth Circuit, however, held that the

government's “commercial speech theory should not

have been so easily dismissed.” Greater Baltimore II,

721 F.3d at 284. As relied upon by the First Resort

court, the Greater Baltimore II court held that even if

the speech regulated by the ordinance did not “sat-

isfly] the ‘propose a commercial transaction’ test,” it

could nonetheless be treated as commercial under Bol-

ger. Id. at 284-85. And as in First Resort, the Greater

Baltimore II court suggested that speech may be com-

mercial if it is “directed at the providing of services”

that are commercially valuable, even though the ser-

vices were in fact provided for free. Jd. at 284-86 (in-

ternal quotation marks omitted). The court therefore

remanded for further discovery into whether the

plaintiff center “possesse[d] economic interests apart

from its ideological motivations.” Jd. at 285. Unsur-

prisingly, that discovery ultimately revealed that the

center’s “clearest motivation [was] not economic” and

that th. purported link between the center’s advocacy

and its fundraising was “speculative at best.” Greater

Baltimore ITT, 2018 WL 298142, at *4.

Meanwhile, at least two courts have recognized

that because pregnancy centers that provide all of

their services for free to advance a moral and religious

mission do not propose a commercial transaction, their

speech cannot be regulated as commercial. For in-

stance, in a decision issued before Greater Baltimore

II, the court in Centro Tepeyac held that a pregnancy

center that was “motivated by social concerns” and

provided its services “free of charge” could by defini-

tion not be held to be proposing “a commercial trans-

action.” 779 F. Supp. 2d at 463-64. It thus held that

the commercial speech doctrine did not apply. Jd.; see

also 5 F. Supp. 3d at 756-60 (again rejecting commer-

cial speech argument after Greater Baltimore II).

Likewise, the district court in Evergreen Ass’n, Inc.

v. City of New York held that because pregnancy cen-

ters’ “missions—and by extension their charitable

work—are grounded in their opposition to abortion

and emergency contraception,” their communications

with women are not regulable as commercial speech.

801 F. Supp. 2d 197, 205 (S.D.N.Y. 2011), affd in part,

vacated in part on other grounds, 740 F.3d 233 (2d Cir.

2014). The government offered the same workaround

to this obstacle that the defendants would later offer

in First Resort and Greater Baltimore I]—that even if

pregnancy centers do not charge for their services,

their “fundraising prowess” is increased the better

they are at “attracting clients.” /d. (internal quotation

marks omitted). But the court correctly rejected this

argument, because pregnancy centers “do not adver-

tise ‘solely’ for that purpose,” and in any event, “the

Supreme Court has never viewed ‘charitable solicita-

tion * * * as a variety of purely commercial speech.”

Id. at 205-06 (quoting Village of Schaumburg v. Citi-

zens for a Better Env’t, 444 U.S. 620, 632 (1980)).

a + 7”

Whatever the wisdom of the commercial- and pro-

fessional-speech doctrines as a matter of first princi-

ples, these doctrines are stretched beyond recognition

when they are applied to pro-life pregnancy centers

that render all of their services for free and in further-

ance of their moral and religious missions. Further,

although this Court has been clear that the sine qua

non of commercial speech is speech that proposes a

commercial transaction, some courts even outside the

pregnancy-center context have, like the courts in First

Resort and Greater Baltimore II, incorrectly viewed

the Bolger factors as a substitute for the propose-a-

commercial-transaction test, rather than a test ap-

plied to speech that both proposes a commercial trans-

action and speaks to noncommercial matters.'* The

4 See:

Cir. 2008) (applying only the Bolger test to determine

whether speech is commercial);

e Adventure Commce'ns, Inc. v. Ky. Registry of Election

Fin., 191 F.3d 429, 440-41 (4th Cir. 1999) (same);

e Proctor & Gamble Co. v. Amway Corp., 242 F.3d 539,

552 (5th Cir. 2001) (same), abrogated on other grounds by

Lexmark Int'l, Inc. v. Static Control Components, Inc., 134

S. Ct. 1377 (2014);

Court should thus use this case as an opportunity to

reaffirm the limitations on the commercial- and pro-

fessional-speech doctrines, or otherwise agree to hear

an additional case more squarely presenting the issue.

CONCLUSION

The Court should reverse the decision below.

Respectfully submitted.

KELLY S. BIGGINS MARK L. RIENZI

LOCKE LORD LLP Counsel of Record

300 S. Grand Avenue, Eric C. RASSBACH

Suite 2600 JOSEPH C. DAVIS

Los Angeles, California THE BECKET FUND FOR

90071 RELIGIOUS LIBERTY

1200 New Hampshire

W. Scott HASTINGS Ave. NW, Suite 700

CARL SCHERZ Washington, D.C. 20036

e Dryer v. Natl Football League, 814 F.3d 938, 943 (8th

Cir. 2016) (declaring that the Bolger factors determine

whether speech is commercial).

Meanwhile, six circuits correctly recognize that Bolger ap-

plies only to “non-core” commercial speech—i.e., speech

that does not just propose a commercial transaction but

also includes speech on other topics. See Bad Frog Brewery,

Inc. v. N.Y. State Liquor Auth., 134 F.3d 87, 97 (2d Cir.

1998); Semco, Inc. v. Amcast, Inc., 52 F.3d 108, 112 (6th Cir.

1995); Jordan v. Jewel Food Stores, Inc., 743 F.3d 509, 516-

17 & n.6 (7th Cir. 2014); Proctor & Gamble Co. v. Haugen,

222 F.3d 1262, 1274-75 (10th Cir. 2000); Edward Lewis To-

binick, MD vy. Novella, 848 F.3d 935, 950 (11th Cir. 2017);

Spirit Airlines, Inc. v. U.S. Dep't of Transp., 687 F.3d 403,

412 (D.C. Cir. 2012).

ANDREW BUTTARO (202) 955-0095

LOCKE LORD LLP mrienzi@becketlaw.org

2200 Ross Avenue,

Suite 2800

Dallas, Texas 75201

Counsel for Amicus Curiae

JANUARY 2018

APPENDIX

AUSTIN ORDINANCE

ORDINANCE NO. 20120126-045

AN ORDINANCE AMENDING THE CITY CODE

TO ADD CHAPTER 10-10 TO REQUIRE SIGNS

AT UNLICENSED PREGNANCY SERVICE

CENTERS; CREATING AN OFFENSE AND IM-

POSING A PENALTY.

BE IT ORDAINED BY THE CITY COUNCIL OF

THE CITY OF AUSTIN:

PART 1. The City Code is amended by adding a

new Chapter I 0-10 to read as follows:

CHAPTER 10-10 UNLICENSED PREGNANCY

SERVICE CENTERS.

§ 10-10-1 DEFINITIONS.

In this chapter:

(1) UNLICENSED PREGNANCY SERVICE

CENTER or CENTER means an organization

or facility that:

(a) as its primary purpose, provides pregnancy

related services, including pregnancy testing

and options counseling; and

(b) does not have a health care provider that

is licensed by a state or federal regulatory en-

tity maintaining a full time practice on site.

(2) MEDICAL SERVICE includes, without limi-

tation, diagnosing pregnancy or performing a

sonogram.

(3) OWNER OR OPERATOR means a person who

owns, operates, or manages an unlicensed pregnan-

cy service center.

§ 10-10-2 NOTICE REQUIRED.

(A) The owner or operator of an unlicensed preg-

nancy service center shall prominently display a

black and white sign, in English and in Spanish,

affixed to the entrance of the center so that the

sign is conspicuously visible to a person enter-

ing the center, that accurately discloses the fol-

lowing information:

(1) whether the center provides medical ser-

vices.

(2) if the center provides medical services,

whether all medical services are provided

under direction and supervision of a | icensed

health care provider; and

(3) if the center provides medical services,

whether the center is licensed by a state or

federal regulatory entity to provide those ser-

vices.

(B) Each sign must be at least eight and one-half

inches by eleven inches and the text must be in

a font size of at least 36 point.

§ 10-10-38 PENALTY.

(A) An owner or operator commits an offense if

the owner or operator violates this chapter.

(B) An offense under this article shall be pun-

ished by a fine of not less than $250 for the first

offense, not less than $350 for a second offense,

and not less than $450 for a third or succeeding

offense.

need not be proved; for an offense under this

chapter.

PART 2. This ordinance takes effect on February 6,

201 2.

PASSED AND APPROVED

January 26, 2012 /s/ Lee Leffingwell

Mayor

APPROVED: ATTEST:

/s/ Karen M. Kennard /s/ Shirley A. Gentry

City Attorney City Clerk

BALTIMORE CITY REVISED CODE

HEALTH HE § 3-501

SUBTITLE 5

LIMITED-SERVICE PREGNANCY CENTERS

§ 3-501. “Limited-service pregnancy center” de-

fined.

In this subtitle, “limited-service pregnancy center”

means any person:

(1) whose primary purpose is to provide preg-

nancy-related services; and

(2) who:

(i) for a fee or as a free service, provides in-

formation about pregnancy-related services;

but

(ii) does not provide or refer for:

(A) abortions; or

(B) nondirective and comprehensive

birth-control services.

(Ord. 09-252.)

§ 3-502. Disclaimer required.

(a) In general.

A limited-service pregnancy center must provide

its clients and potential clients with a disclaimer

substantially to the effect that the center does not

provide or make referral for abortion or birth-

control services.

(b) How given.

The disclaimer required by this section must be

given through 1 or more signs that are:

(1) written in English and Spanish;

(2) easily readable; and

(3) conspicuously posted in the center’s waiting

room or other area where individuals await

service.

(Ord. 09-252.)

§ 3-503. Violation notice.

If the Health Commissioner learns that a preg-

nancy center is in violation of this subtitle, the

Commissioner shall issue a written notice order-

ing the center to correct the violation within 10

days of the notice or within any longer period that

the Commissioner specifies in the notice.

(Ord. 09-252.)

§§ 3-504 to 3-505. {Reserved}

§ 3-506. Enforcement by citation.

(a) In general.

The failure to comply with an order issued under

§ 3-503 {Violation notice”} of this subtitle may be

enforced by issuance of:

(1) an environmental citation under City Code

Article 1, Subtitle 40 {“Environmental! Control

Board”’}; or

(2) a civil citation under City Code Article 1,

Subtitle 41 {“Civil Citations”}.

(b) Process not exclusive.

The issuance of a citation to enforce this subtitle

does not preclude pursuing any other civil or crim-

inal remedy or enforcement action authorized by

law.

(Ord. 09-252.)

12/31/09

CALIFORNIA FACT ACT

Assembly Bill No. 775

CHAPTER 700

An act to add Article 2.7 (commencing with Sec-

tion 123470) to Chapter 2 of Part 2 of Division 106 of

the Health and Safety Code, relating to public health.

[Approved by Governor October 9, 2015. Filed with

Secretary of State October 9, 2015.]

LEGISLATIVE COUNSEL’S DIGEST

AB 775, Chiu. Reproductive FACT Act.

Existing law, the Reproductive Privacy Act, pro-

vides that every individual possesses a fundamental

right of privacy with respect to reproductive deci-

sions. Existing law provides that the state shall not

deny or interfere with a woman’s right to choose or

obtain an abortion prior to viability of the fetus, as

defined or when necessary to protect her life or

health. Existing law specifies the circumstances un-

der which the performance of an abortion is deemed

unauthorized.

This bill would enact the Reproductive FACT

(Freedom, Accountability, Comprehensive Care, and

Transparency) Act, which would require a licensed

covered facility, as defined, to disseminate a notice to

all clients, as specified, stating, among other things,

that California has public programs that provide im-

mediate free or low-cost access to comprehensive fam-

ily planning services, prenatal care, and abortion, for

eligible women. The bill would also require an unli-

censed covered facility, as defined, to disseminate a

notice to all clients, as specified stating, among other

things, that the facility is not licensed as a medical

facility by the State of California.

The bill would authorize the Attorney General,

city attorney, or county counsel to bring an action to

impose a specified civil penalty against covered facili-

ties that fail to comply with these requirements.

The people of the State of California do enact as fol-

lows:

SECTION 1. The Legislature finds and declares that:

(a) All California women, regardless of income,

should have access to reproductive health services.

The state provides insurance coverage of reproductive

health care and counseling to eligible, low-income

women. Some of these programs have been recently

established or expanded as a result of the federal Pa-

tient Protection and Affordable Care Act.

(b) Millions of California women are in need of

publicly funded family planning services, contracep-

tion services and education, abortion services, and

prenatal care and delivery. In 2012, more than 2.6

million California women were in need of publicly

funded family planning services. More than 700,000

California women become pregnant every year and

one-half of these pregnancies are unintended. In

2010, 64.3 percent of unplanned births in California

were publicly funded. Yet, at the moment they learn

that they are pregnant, thousands of women remain

unaware of the public programs available to provide

them with contraception, health education and coun-

seling, family planning, prenatal care, abortion, or

delivery.

tive, and care early in pregnancy is important, Cali-

fornia must supplement its own efforts to advise

women of its reproductive health programs. In Cali-

fornia, low-income women can receive immediate ac-

cess to free or low-cost comprehensive family plan-

ning services and pregnancy-related care through the

Medi-Cal and the Family PACT programs. However,

only Medi-Cal providers who are enrolled in the Fam-

ily PACT program are authorized to enroll patients

immediately at their health centers.

(d) The most effective way to ensure that women

quickly obtain the information and services they need

to make and implement timely reproductive decisions

is to require licensed health care facilities that are

unable to immediately enroll patients into the Family

PACT or Presumptive Eligibility for Pregnant Wom-

en Medi-Cal programs to advise each patient at the

time of her visit of the various publicly funded family

planning and pregnancy-related resources available

in California, and the manner in which to directly

and efficiently access those resources.

(e) It is also vital that pregnant women in Califor-

nia know when they are getting medical care from

licensed professionals. Unlicensed facilities that ad-

vertise and provide pregnancy testing and care must

advise clients, at the time they are seeking or obtain-

ing care, that these facilities are not licensed to pro-

vide medical care.

SEC. 2. The purpose of this act is to ensure that

California residents make their personal reproduc-

tive health care decisions knowing their rights and

the health care services available to them.

10a

SEC. 3. Article 2.7 (commencing with Section

123470) is added to Chapter 2 of Part 2 of Division

106 of the Health and Safety Code, to read:

Article 2.7. Reproductive FACT Act

123470. This article shall be known and may be

cited as the Reproductive FACT (Freedom, Accounta-

bility, Comprehensive Care, and Transparency) Act

or Reproductive FACT Act.

123471. (a) For purposes of this article, and except

as provided in subdivision (c), “licensed covered facili-

ty” means a facility licensed under Section 1204 or an

intermittent clinic operating under a primary care

clinic pursuant to subdivision (h) of Section 1206,

whose primary purpose is providing family planning

or pregnancy-related services, and that satisfies two

or more of the following:

(1) The facility offers obstetric ultrasounds, ob-

stetric sonograms, or prenatal care to pregnant wom-

en.

(2) The facility provides, or offers counseling

about, contraception or contraceptive methods.

(3) The facility offers pregnancy testing or preg-

nancy 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.

(b) For purposes of this article, subject to subdiv:-

sion (c), “unlicensed covered facility” is a facility that

lla

is not licensed by the State of California and does not

have a licensed medical provider on staff or under

contract who provides or directly supervises the pro-

vision of all of the services, whose primary purpose is

providing pregnancy-related services, and that satis-

fies two or more of the following:

(1) The facility offers obstetric ultrasounds, ob-

stetric sonograms, or prenatal care to pregnant wom-

en.

(2) The facility offers pregnancy testing or

pregnancy diagnosis.

(3) The facility advertises or solicits patrons

with offers to provide prenatal sonography, pregnan-

cy tests, or pregnancy options counseling.

(4) The facility has staff or volunteers who col-

lect health information from clients.

lowing:

(1) A clinic directly conducted, maintained, or

operated by the United States or any of its depart-

ments, officers, or agencies.

(2) A licensed primary care clinic that is en-

rolled as a Medi-Cal provider and a provider in the

Family Planning, Access, Care, and Treatment Pro-

gram.

123472. (a) A licensed covered facility shall dis-

seminate to clients on site the following notice in

English and in the primary threshold languages for

Medi-Cal beneficiaries as determined by the State

Department of Health Care Services for the county in

which the facility is located.

12a

(1) The notice shall state:

“California has public programs that provide

immediate free or low-cost access to comprehensive

family planning services (including all FDA-approved

methods of contraception), prenatal care, and abor-

tion for eligible women. To determine whether you

qualify, contact the county social services office at

[insert the telephone number].”

(2) The information shall be disclosed in one of

the following ways:

(A) A public notice posted in a conspicuous

place where individuals wait that may be easily read

by those seeking services from the facility. The notice

shall be at least 8.5 inches by 11 inches and written

in no less than 22-point type.

(B) A printed notice distributed to all cli-

ents in no less than 14-point type.

that can be read at the time of check-in or arrival, in

the same point type as other digital disclosures. A

printed notice as described in subparagraph (B) shall

be available for all clients who cannot or do not wish

to receive the information in a digital format.

(3) The notice may be combined with other

mandated disclosures.

(b) An unlicensed covered facility shall dissemi-

nate to clients on site and in any print and digital

advertising materials including Internet Web sites,

the following notice in English and in the primary

threshold languages for Medi-Cal beneficiaries as de-

termined by the State Department of Health Care

l3a

Services for the county in which the facility is locat-

ed.

(1) The notice shall state: “This facility is not

licensed as a medical facility by the State of Califor-

nia and has no licensed medical provider who pro-

vides or directly supervises the provision of services.”

(2) The onsite notice shall be a sign at least 8.5

inches by 11 inches and written in no less than 48-

point type, and shall be posted conspicuously in the

entrance of the facility and at least one additional ar-

ea where clients wait to receive services.

(3) The notice in the advertising material shall

be clear and conspicuous. “Clear and conspicuous”

means in larger point type than the surrounding text,

or in contrasting type, font, or color to the surround-

ing text of the same size, or set off from the surround-

ing text of the same size by symbols or other marks

that call attention to the language.

123473. (a) Covered facilities that fail to comply

with the requirements of this article are liable for a

civil penalty of five hundred dollars ($500) for a fi of-

fense and one thousand dollars ($1,000) for each sub-

sequent offense. The Attorney General, city attorney,

or county counsel may bring an action to impose a

civil penalty pursuant to this section after doing both

of the following:

(1) Providing the covered facility with reasona-

ble notice of noncompliance, which informs the facili-

ty that it is subject to a civil penalty if it does not cor-

rect the violation within 30 days from the date the

notice is sent to the facility.

l4a

(2) Verifying that the violation was not cor-

rected within the 30-day period described in para-

graph (1).

(b) The civil penalty shall be deposited into the

General Fund if the action is brought by the Attorney

General. If the action is brought by a city attorney,

the civil penalty shall be paid to the treasurer of the

city in which the judgment is entered. If the action is

brought by a county counsel, the civil penalty shall be

paid to the treasurer of the county in which the

judgment is entered.

SEC. 4. The provisions of this act are severable. If

any provision of this act or its application is held in-

valid, that invalidity shall not affect other provisions

or applications that can be given effect without the

invalid provision or application.

l5a

HARTFORD ORDINANCE

Introduced by: Mayor Luke A. Bronin

SUBSTITUTE FOR ITEM #15

HEADING AND PURPOSE:

AN ORDINANCE AMENDING CHAPTER 17 OF

THE HARTFORD MUNICIPAL CODE TO ADD

ARTICLE VI -PREGNANCY INFORMATION

DISCLOSURE AND PROTECTION

COURT OF COMMON COUNCIL,

CITY OF HARTFORD

December 11, 2017

Be it ordained by the Court of Common Council of the

City of Hartford that Chapter 17 of the Municipal

Code be amended to add Article VI. — Pregnancy In-

formation Disclosure and Protection as follows.

ARTICLE VI. - PREGNANCY INFORMATION

DISCLOSURE AND PROTECTION

Section 17-138. Findings

(a) The Council's intention is to ensure that individu-

als in Hartford have access to comprehensive infor-

mation about, and timely access to, all types of repro-

ductive health services including, but not limited to,

pregnancy, prenatal care, emergency contraception,

and abortion.

(b) Pregnancy decisions are time sensitive, and care

early in pregnancy is important, whether a woman

chooses to continue her pregnancy and needs prena-

tal care or wants to end her pregnancy and needs an

abortion. Connecticut prioritizes the health of women

16a

and families, and low-income women can receive im-

mediate access to free or low-cost comprehensive fam-

ily planning services and pregnancy-related care

through Connecticut's Medicaid program.

tion are all time sensitive services. Increasing the

proportion of women receiving adequate and early

prenatal earn is a pronounced objective of the United

States Department of Health and Human Services.

The federal Centers for Disease Control and Preven-

tion urges that comprehensive prenatal care begin as

soon as a woman decides to become Pregnant. Simi-

larly to prenatal care, delayed access to abortion and

emergency contraception poses a threat to public

health. Delay in accessing abortion or emergency con-

traception creates increased health risks and finan-

cial burdens and may eliminate a women's ability to

obtain these services altogether, severely limiting her

reproductive health options. Delays in deciding to

terminate a pregnancy, in particular, may mean that

a less invasive method is no longer available or that

the woman is prevented from choosing an abortion

altogether.

(d) A woman's right to choose whether to terminate a

pregnancy is protected by both the federal and state

Constitutions, and is protected from interference by

third parties and the government.

(e) Many people have deeply held religious and moral

beliefs both supporting and opposing abortion, and

the City respects the right of individuals to express

and promote such beliefs.

(f) In recent years, clinics that seek to counsel clients

against abortion have become common throughout

17a

Connecticut, with more than 20 such clinics in the

state. These clinics are often referred to as crisis

pregnancy centers (“CPCs”). Although some CPCs are

licensed to provide various medical services to preg-

nant women, most CPCs are not licensed medical

clinics.

(g) While some CPCs openly acknowledge, in their

advertising and their facilities, that they do not pro-

vide abortions or emergency contraception or refer

clients to other providers of such services, many

CPCs, through their appearance and services offered,

appear to offer abortion services and unbiased and

comprehensive counseling. Moreover, some CPCs

have engaged in conduct that intentionally leads cli-

ents to believe that they are in a reproductive health

care facility and/or have received reproductive health

care and counseling from a licensed medical provider

when, in fact, they have nct.

(h) The Council finds that there are CPCs in Hartford

that advertise as medical facilities and use signage

similar to actual medical facilities.

(i) It is vital that pregnant women in Connecticut

know whether they are getting medical care from li-

censed professionals. Facilities that advertise and

provide pregnancy testing and care must ad vise cli-

ents, at the time they are seeking or obtaining care,

whether or not these facilities have licensed medical

professionals on staff who rrovide or directly super-

vise that care.

(j) Many CPCs advertise on billboards, mass-transit

facilities, and through websites, and some CPCs uti-

lize a technology that allows them to target social

18a

media advertisements to women when they approach

or enter an abortion clinic.

(k) Most clients do not come to CPCs as a result of a

referral from a medical professional. Clients with an

unplanned pregnancy or at risk of an unplanned

pregnancy are often experiencing emotional and

physical stress and are therefore especially suscepti-

ble to false or misleading elements in advertising by

CPCs. These circumstances raise the need for regula-

tion that is more protective of consumers of pregnan-

cy center services.

(1) Because of the time-sensitive and constitutionally

protected nature of the decision to terminate a preg-

nancy, false and misleading advertising by clinics

that do not offer or refer clients for abortion or emer-

gency contraception is of special concern to the City.

When a woman is misled into believing that a clinic

offers services that it does not in fact offer, she loses

time crucial to the decision whether to terminate a

pregnaucy. Under these circumstances a client may

also lose the option to choose a less invasive method,

or to terminate the pregnancy at all.

(m) The City respects the right of pregnancy services

centers to counsel against abortions, if the centers

are otherwise operating in compliance with this

Chapter, and the City does not intend by this Chap-

ter to regulate, limit, or curtail advocacy. However,

women seeking medical care or those who have cho-

sen to terminate a pregnancy should not be misled

and delayed by the actions or false advertising of

CPCs.

(n) After carefully balancing the constitutionally pro-

tected right of a woman to choose to terminate her

19a

pregnancy. the right of individuals to express their

religious and ethical beliefs about abortion, and the

harm to women effected by even slight delays that

can be caused by false advertising for pregnancy

and/or abortion services, the City has determined

that there exists a need to regulate false and mislead-

ing advertising by pregnancy services centers and to

require that pregnancy centers make certain disclo-

sures to ensure that patients are adequately in-

formed when they seek services at a pregnancy ser-

vices center.

Section 17-139. Definitions

For the purposes of this Chapter, the following

terms shall have the following meanings:

(a) “Abortion” shall mean the termination of a preg-

nancy for purposes other than producing a live birth.

“Abortion” includes, but is not limited to, a termina-

tion using pharmacological agents.

(b) “Client” shall mean an individual who is inquiring

about or seeking services at a pregnancy services cen-

ter.

more prescription drugs (1) used separately or in

combination, to prevent pregnancy, when adminis-

tered to or self-administered by a patient, within a

medically-recommended amount of time after sexual

intercourse, (2) dispensed for that purpose in accord-

ance with professional standards of practice, and (3)

determined by the United States Food and Drug Ad-

ministration to be safe for that purpose.

(d) “Health information” shall mean any oral or writ-

ten information in any form or medium that relates

20a

to health insurance and/or the past, present, or fu-

ture physical or mental health or condition of a client.

(e) “Licensed medical provider” shall mean a person

licensed or otherwise authorized under the provisions

of federal, state, or !ocal law to provide medical ser-

vices.

(f) “Pregnancy services center” shall mean a facility,

including mobile facilities, the primary purpose of

which is to provide services to women who are or may

be pregnant, that either (1) offers to provide or does

provide obstetric ultrasounds, obstetric sonograms or

prenatal care to pregnant women, or (2) has the ap-

pearance of a medical facility. A pregnancy service

center has the appearance of a medical facility if two

or more of the following factors are present:

(1) The facility offers pregnancy testing and/or

pregnancy diagnosis;

(2) The facility bas staff or volunteers who wear

medical attire and uniforms

(3) The facility contains one or more examination

tables;

(4) The facility contains a private or semi-private

room or area containing medical supplies and/or med-

ical instruments;

(5) The facility has staff or volunteers who collect

health information from clients; or

(6) The facility is located on the same premises as

a state-licensed medical facility or provider or shares

facility space with a state-licensed medical provider.

It shall be prima facie evidence that a facility has

the appearance of a medical facility if it has two or

2la

more of the characteristics listed above, “Pregnancy

service center” does not include or mean any facility

or office that is licensed by the state of Connecticut or

the United States government to provide medical or

pharmaceutical services or where a licensed medical

provider is present to directly provide or directly su-

pervise the provision of all medicai services men-

tioned in this section at all times during which these

services are being provided at the facility, including

abortion, emergency contraception, prenatal care,

pregnancy diagnosis and testing, obstetric ultra-

sounds or sonograms.

(g) “Premises” shall mean land and improvements or

appurtenances or any part thereof.

(h) “Prenatal care” shall mean services consisting of

physical examination, pelvic examination, or clinic

laboratory services provided to a woman during

pregnancy. Clinic laboratory services refers to the

microbiological, serological, chemical, hematological,

biophysical, cytological, or pathological examination

of materials derived from the human body, for the

purposes of obtaining information, for the diagnosis,

prevention, or treatment of disease or the assessment

of health condition.

Section 17-140. Required Disclosures

(a) A pregnancy services center shall disclose if it

does not have a licensed medical provider on the

premises who provides or directly supervises the pro-

vision of all medical services provided at such preg-

nancy services center at all times during which these

services are being provided.

(b) The disclosures required by this section must be

provided:

22a

(1) in writing, in English and Spanish in a size

and style as determined in accordance with rules

promulgated by the City Department of Health and

Human Services on (A) at least one sign conspicuous-

ly posted in the entrance of the pregnancy services

center; (B) at least one additional sign posted in any

area where clients wait to receive services; and (C) on

any website of the pregnancy services center; and

(2) orally, whether in person or by telephone

communication, whenever a client or prospective cli-

ent requests any of the following services: (A) abor-

tion, (B) emergency contraception, or (C) prenatal

care.

the requirements of this Section (Required Disclo-

sures) of this Chapter are liable for a civil penalty of

one hundred dollars ($100) per offense. Each day any

such violations continue shall constitute a separate

offense.

Section 17-141. Prohibition of false, misleading,

or deceptive advertising

(a) It is unlawful for any pregnancy services center,

with intent directly or indirectly to perform pregnan-

cy-related services (professional or otherwise), to

make or disseminate or cause to be made or dissemi-

nated any statement concerning those services, pro-

fessional or otherwise, or concerning any circum-

stance or matter of fact connected with the proposed

performance or disposition thereof, which is untrue,

misleading, or deceptive, whether by statement or

omission, that the pregnancy services center knows,

or which by the exercise or reasonable care should

know, to be untrue or misleading. This prohibition

23a

applies to statement s made before the public in the

city or statements that are made, disseminated or

caused to be disseminated from the city before the

public anywhere, in any newspaper or other publica-

tion, or in any other manner or means whatsoever,

including over the Internet.

(b) It is unlawful for any pregnancy services center,

with intent directly or indirectly to perform pregnan-

cy-related services (professional or otherwise), to

make or disseminate or cause to be so made or dis-

seminated any such statement identified in subsec-

tion (a) as part of a plan or scheme with the intent

not to perform the services expressly or impliedly of-

fered, as advertised.

the requirements of this Section (Prohibition of False,

Misleading. or Deceptive Advertising) of this Chapter

are liable for a civil penalty of one hundred dollars

($100) per offense. Each day any such violations con-

tinue shall constitute a separate offense.

Section 17-142. Enforcement and opportunities

to cure

(a) The City Department of Health and Human Ser-

vices may enforce the provisions of Section 3 (Re-

quired Disclosures) and Section 4 (Prohibition of

False, Misleading, or Deceptive Advertising) of this

Chapter through a civil action in any court of compe-

tent jurisdiction, following exhaustion of administra-

tive remedies. Prior to initiating a civil action, the

City shall:

(1) Provide the covered facility with written notice

of noncompliance, which informs the facility that it is

subject to a civil penalty if it does not correct the vio-

24a

lation within ten (10) days from the date the notice is

sent to the facility.

(2) Verify that the violation was not connected

within the ten-day period described in paragraph (1).

(b) Any civil penalties imposed by the court pursuant

to Sections 3(e) or 4(c) of this Chapter shall be paid to

the City of Hartford.

tion that a pregnancy services center has violated

Section 3 or 4 of this Chapter, the City shall be enti-

tled to recover penalties from each and every party

responsible for the violation. In addition, if the City

prevails it shall be entitled to reasonable attorney's

fees and costs pursuant to order of the court.

(d) Nothing in this Chapter shall be interpreted as

restricting or otherwise limiting the enforcement au-

thority that state law or the Charter or Municipal

Code vest in the City, its agencies, officers or employ-

ees or any state agency.

(e) Nothing in this Chapter shall be interpreted as

creating a right of action for any patty other than the

City.

(f) Nothing in this Chapter shall be interpreted as re-

stricting, precluding or otherwise limiting a separate

or concurrent criminal prosecution under the Munic-

ipal Code or state law. Jeopardy shall not attach as a

result of any court action to enforce the provisions of

this Chapter.

Section 1 7-143. General provisions.

(a) Severability. If any section, subjection, sentence,

clause, or phrase of this ordinance is for any reason

25a

held to be invalid or unconstitutional by a decision of

any court of competent jurisdiction, such decision

shall not affect the validity of the remaining portions

of the ordinance.

(b) No Conflict with State or Federal Law. Nothing in

this ordinance shall be interpreted or applied so as to

create any requirement, power, or duty in conflict

with any federal or state law.

and implementing this ordinance, the City of Hart-

ford is assuming an undertaking only to promote the

general welfare. It is not assuming, nor is it imposing

in its officers and employees, an obligation for breach

of which it is liable in money damages to any person

who claims that such breach proximately caused in-

jury.

This ordinance shall become effective July 1, 2018

26a

HAWAI'I STATUTE

Approved by the Governor

on July 11. 2017

The Senate

Twenty-Ninth Legislature, 2017

State of Hawaii

Act 200, S.B. No. 501, S.D. 1, H.D. 2, C.D. 1

A BILL FOR AN ACT

RELATING TO HEALTH

BE IT ENACTED BY THE LEGISLATURE OF

THE STATE OF HAWAII:

SECTION 1. The legislature finds that all women

in Hawaii, regardless of income, should have mean-

ingful access to effective reproductive health services.

Public programs providing insurance coverage and

direct services for reproductive health care and coun-

seling to eligible, low-income women are currently

available through the department of health and de-

partment of human services.

Thousands of women in Hawaii are in need of

publicly-funded family planning services, contracep-

tion services and education, pregnancy-related ser-

vices, prenatal care, and birth-related services. In

2010, sixteen thousand women in Hawaii experienced

an unintended pregnancy, which can carry enormous

social and economic costs to both individual families

and to the State. Many women in Hawaii, however,

remain unaware of the public programs available to

provide them with contraception, health education

and counseling, family planning, prenatal care, preg-

nancy-related, and birth-related services.

27a

Because family planning decisions are time sensi-

tive and care early in pregnancy is important, Hawaii

must make every possible effort to advise women of

all available reproductive health programs. In Ha-

waii, low-income women can receive immediate ac-

cess to free or low-cost comprehensive family plan-

ning services and pregnancy-related care through

Med-QUEST and the department of health's family

planning program. Providers who contract with these

programs are able to immediately enroll patients in

these programs at the time of a health center visit.

Requiring facilities that provide pregnancy- or

family planning-related services to provide accurate

health information arid to inform clients of the avail-

ability of and enrollment procedures for reproductive

health programs will help ensure that all women in

the State can quickly obtain the information and ser-

vices that they need to make and implement in-

formed, timely, and personally appropriate reproduc-

tive health decisions.

The purpose of this Act is to ensure that women in

Hawaii are able to make personal reproductive

health decisions with services that are available.

SECTION 2. Chapter 321, Hawaii Revised Stat-

utes, is amended by adding two new sections to be

appropriately designated and to read as follows:

“§321-A Limited service pregnancy centers;

notice of reproductive health services.

(a) For purposes of this section, “limited service

pregnancy center” or “center”:

(1) Means a facility that:

28a

(A) Advertises or solicits clients or patients

with offers to provide prenatal sonography, pregnan-

cy tests, or pregnancy options counseling;

(B) Collects health information from clients or

patients; and

related services, including but not limited to obstetric

ultrasound, obstetric sonogram, pregnancy testing,

pregnancy diagnosis, reproductive health counseling,

or prenatal care; and

(2) Shall not include a health care facility. For the

purposes of this paragraph, a “health care facility”

means any facility designed to provide comprehensive

health care, including but not limited to hospitals li-

censed pursuant to chapter 321, intermediate care

facilities, organized ambulatory health care facilities,

emergency care facilities and centers, health mainte-

nance organizations, federally qualified health cen-

ters, and other facilities providing similarly orga-

nized comprehensive health care services.

(b) Every limited service pregnancy center in the

State shall disseminate on-site to clients or patients

the following written notice in English or another

language requested by a client or patient:

“Hawaii has public programs that provide imme-

diate free or low-cost access to comprehensive family

planning services, including, but not limited to, all

FDA-approved methods of contraception and preg-

nancy-related services for eligible women.

To apply online for medical insurance coverage,

that will cover the full range of family planning and

prenatal care services, go to mybenefits. hawaii.gov.

29a

Only ultrasounds’ performed by qualified

healthcare professionals and read by licensed clini-

cians should be considered medically accurate. “

The notice shall contain the internet address for

online medical assistance applications and the

statewide phone number for medical assistance ap-

plications.

shall be disclosed in at least one of the following

ways:

(1) A public notice on a sign sized at least eight

and one-half inches by eleven inches, written in no

less than twenty-two point type, and posted in a clear

and conspicuous place within the center’ s waiting

area so that it may be easily read by individuals

seeking services from the center; or

(2) A printed or digital notice written or rendered

in no less than fourteen point type that is distributed

individually to each patient or client at the time of

check-in for services; provided that a printed notice

shall be available to all individuals who cannot or do

not wish to receive the notice in a digital format.

(d) No limited service pregnancy center that col-

lects health information from any individual seeking

or receiving its services shall disclose any individual-

ly identifiable health information to any other per-

son, entity, or organization without express written

authorization from the subject individual. Any disclo-

sure made under this section shall be limited by the

express terms of the written authorization and all

applicable state and federal laws and regulations, in-

cluding the federal Health Insurance Portability and

30a

Accountability Act of 1996 and title 45 Code of Fed-

eral Regulations part 164.

(e) A limited service pregnancy center that pro-

vides or assists in the provision of pregnancy testing

shall provide the individual tested with a free written

statement of the results of the pregnancy test in Eng-

lish or another language requested by a client or pa-

tient immediately after the test is completed.

(f) Upon receipt of a written request from an indi-

vidual to examine or copy all or part of the individu-

al's recorded health information or other information

retained by a limited service pregnancy center, the

center shall, promptly as required under the circum-

stances but in no case later than fifteen working days

after receiving the request:

(1) Make the information available for examina-

tion by the individual during regular business hours;

(2) Provide a free copy to the individual, if re-

quested;

(3) Inform the individual if the information does

not exist or cannot be found; and

(4) If the center does not maintain the record or

information, inform the individual of that fact and

provide the name and address of the entity that

maintains the record or information.

§321-B Limited service pregnancy centers;

enforcement; private right of action.

(a) A limited service pregnancy center that vio-

lates section 321-A shall be liable for a civil penalty of

$500 for a first offense and $1,000 for each subse-

quent offense. If the center is provided with reasona-

3la

ble notice of noncompliance, which informs the center

that it is subject to a civil penalty if it does not cor-

rect the violation within thirty days from the date the

notice is sent to the center, and the violation is not

corrected as of the expiration of the thirty-day notice

period, the attorney general may bring an action in

the district court of the district in which the center is

located to enforce this section.

A civil penalty imposed pursuant to this subsec-

tion shall be deposited to the credit of the general

fund.

(b) Any person who is aggrieved by a limited ser-

vice pregnancy center's violation of section 321-A

may bring a civil action against the limited service

pregnancy center in the district court of the district

in which the center is located to enjoin further viola-

tions and to recover actual damages sustained to-

gether with the costs of the suit including reasonable

attorneys’ fees. The court may, in its discretion, in-

crease the award of damages to an amount not to ex-

ceed three times the actual damages sustained. If

damages are awarded pursuant to this subsection,

the court may, in its discretion, impose on a liable

center a civil fine of not more than $1,000 to be paid

to the plaintiff.

A party seeking civil damages under this subsec-

tion may recover upon proof of a violation by a pre-

ponderance of the evidence.

For the purposes of this subsection, “person” in-

cludes a natural or legal person.

vided by this section shall be in addition to any other

procedure o remedy that may be available to the

32a

State or a person aggrieved by a violation of this

chapter.

(d) This section and section 321-A are not intend-

ed to require regulation or oversight of limited ser-

vice pregnancy centers by the department of health.”

SECTION 3. In codifying the new sections added

by section 2 of this Act, the revisor of statutes shall

substitute appropriate section numbers for the letters

used in designating the new sections in this Act.

SECTION 4. If any provision of this Act, or the

application thereof to any person or circumstance, is

held invalid, the invalidity does not affect other pro-

visions or applications of the Act that can be given

effect without the invalid provision or application,

and to this end the provisions of this Act are severa-

ble.

SECTION 5. New statutory material is under-

scored.

SECTION 6. This Act shall take effect upon its

approval.

APPROVED this 11TH day of July 2017

/s/ David Y. Ige

Governor of the State of Hawaii

THE SENATE OF THE STATE OF HAWAII

Date: May 2, 2017

Honolulu, Hawaii 96813

We hereby certify that the foregoing Bill this day

passed Final Reading in the

Senate of the Twenty-ninth Legislature of the State

of Hawaii, Regular Session of 2017.

33a

/s/ Ronald D. Kouchi, President of the Senate

/s/ Clerk of the Senate

THE HOUSE OF REPRESENTATIVES OF THE

STATE OF HAWAII

Date: May 2, 2017

Honolulu, Hawaii

We hereby certify that the above-referenced Bill on

this day passed Final Reading in the House of Repre-

sentatives of the Twenty-Ninth Legislature of the

State of Hawaii, Regular Session of 2017.

/s/ Joseph M. Souki

Speaker

House of Representatives

/s/ Brian L. Takeshita

Chief Clerk

House of Representatives

34a

ILLINOIS ACT

Public Act 099-0690 LRB099 05684 HEP 25727 b

SB1564 Enrolled

AN ACT concerning civil law.

Be it enacted by the People of the State of

Illinois, represented in the General Assembly:

Section 5. The Health Care Right of Con-

science Act is amended by changing Sections 2, 3,

6, and 9 and by adding

Sections6.1 and 6.2 as follows:

(745 ILCS 70/2) (from Ch. 111 1/2, par. 5302)

Sec. 2. Findings and policy. The General Assembly

finds and declares that people and organizations hold

different beliefs about whether certain health

care services are morally acceptable. It is the public

policy of the State of Illinois to respect and proter: she

right of conscience of all persons who refuse to obiain,

receive or accept, or who are engaged in, the delivery

of, arrangement for, or payment of health care

services and medical care whether acting individual-

ly, corporately, or in association with other per-

sons; and to prohibit all forms of discrimination,

disqualification, coercion, disability or imposition

of liability upon such personsor entities by reason of

their refusing to act contrary to their conscience or con-

scientious convictions in providing, paying for, or re-

fusing to obtain, receive, accept, deliver, pay for, or

arrange for the payment of health care services and

medical care. It is also the public policy of the

State of Illinois to ensure that patients receive

35a

timely access to information and medically appropri-

atecare.

(Source: P.A. 90-246, eff. 1-1-98.)

(745 ILCS 70/3) (from Ch. 111 1/2, par. 5303)

Sec. 3. Definitions. As used in this Act, un-

less the contextclearly otherwiserequires:

(a) “Health care” means any phase of pa-

tient care, including but not limited to, testing; di-

agnosis; prognosis; ancillary research; instructions;

family planning, counselling, referrals, or any other

advice in connection with the use or procurement of

contraceptives and sterilization or abortion proce-

dures; medication; or surgery or other care or treat-

ment rendered by a physician or physicians,

nurses, paraprofessionals or health care facility, in-

tended for the physical, emotional, and mental well-

beingof persons;

(b) “Physician” means any person who is licensed

by the State of Illinois underthe Medical Practice Act of

1987;

es’ aide, medical school student, professional,

paraprofessional or any other person who furnishes,

or assists in the furnishing of, healthcare services;

(d) “Health care facility’ means any public or

private hospital, clinic, center, medical school,

medical training institution, laboratory or diagnos-

tic facility, physician’s office, infirmary, dispensary,

ambulatory surgical treatment center or other insti-

tution or location wherein health care services are

provided to any person, including physician or-

ganizations and associations, networks, joint ven-

36a

tures, and all other combinations of those organiza-

tions;

(e) “Conscience” means a sincerely held set of

moral convictions arising from belief in and rela-

tion to God, or which, though not so derived, arises

from a place in the life of its possessor parallel to that

filled by God among adherents to religious faiths;

(f) “Health care payer” means a health

maintenance organization, insurance company,

management services organization, or any other entity

that pays for or arranges for the payment of any

health care or medical care service, procedure, or

product; and

(g) “Undue delay” means unreasonable delay

that causes impairmentofthe patient’s health.

The above definitions include not only the tra-

ditional combinations and forms of these persons and

organizations but also all new and emerging forms

and combinations of these persons and organiza-

tions.

(Source: P.A. 90-246, eff. 1-1-98.)

(745 ILCS 70/6) (from Ch. 111 1/2, par. 5306)

Sec. 6. Duty of physicians and other health care per-

sonnel. Nothing in this Act shall relieve a physician

from any duty, which may exist under any laws con-

cerning current standards of medical practice or care,

to inform his or her patient of the patient's

condition, prognosis, legal treatment options, and

risks and benefits of treatment options, provided,

however, that such physician shall be under no

duty to perform, assist, counsel, suggest, recom-

mend, refer or participate in any way in any form

37a

of medical practice or health care service that is contra-

ry to his or herconscience.

Nothing in this Act shall be construed so as to re-

lieve a physician or other health care personnel from

obligations under the law of providing emergency medi-

calcare.

(Source: P.A. 90-246, eff. 1-1-98.)

(745 1LCS 70/6. 1 new)

Sec. 6.1. Access to care and information proto-

cols. All health care facilities shall adopt written ac-

cess to care and information protocols that are

designed to ensure’ that conscience-based objec-

tions do not cause impairment of patients’ health

and that explain how conscience-based objections

will be addressed in a timely manner to facilitate pa-

tient health care services. The protections of Sections 4,

5, 7, 8, 9, 10, and 11 of this Act only apply if con-

science-based refusals occur in accordance with

these protocols. These protocols must, ata minimum,

address the following:

(1) The health care facility, physician, or

health care personnel shall inform a patient of the

patient’s condition, prognosis, legal treatment op-

tions, and risks and benefits of the treatment options

in a timely manner, consistent with current stand-

ards of medical practice or care.

(2) When a health care facility, physician, or

health care personnel is unable to permit, perform, or

participate in a health care service that is a diagnostic

or treatment option requested by a patient be-

cause the health care service is contrary to the

conscience of the health care facility, physician, or

38a

health care personnel, then the patient shall either

be provided the requested health care service by oth-

ers in the facility or be notified that the health care

will not be provided and _ be referred, trans-

ferred, or given information in accordance with

paragraph(3).

(3) If requested by the patient or the legal

representative of the patient, the health care facili-

ty, physician, or health care personnel shall: (i) refer

the patient to, or (ii) transfer the patient to, or

(iii) provide in writing information to the patient

about other health care providers who they reasonably

believe may offer the health care service the health

care facility, physician, or health personnel refuses to

permit, perform, or participate in because of a con-

science-basedobjection.

(4) If requested by the patient or the legal

representative of the patient, the health care facili-

ty, physician, or healthcare personnel shall provide cop-

ies of medical records to the patient or to another

health care professional or health care facility des-

ignated by the patient in accordance with [Illinois

law, without undue delay.

(745 1LCS 70/6.2 new)

Sec. 6.2. Permissible acts related to access to care

and information protocols. Nothing in this Act shall

be construed to prevent a health care facility

from requiring that physicians or health care per-

sonnel working in the facility comply with access

to care and information protocols that comply with

the provisionsof this Act.

39a

(745 [LCS 70/9) (from Ch. 111 1/2, par. 5309)

Sec. 9. Liability. No person, association, or corpora-

tion, which owns, operates, supervises, or manages

a health care facility shall be civilly or criminally li-

able to any person, estate, or public or private entity by

reason of refusal of the health care facility to permit or

provide any particular form of health care service

which violates the facility's conscience as documented

in its ethical guidelines, mission statement, consti-

tution, bylaws, articles of incorporation, regulations,

or other governing documents.

Nothing in this Act shall be construed so as to re-

lieve a physician, health care personnel, or a health

care facility from obligations under the law of provid-

ingemergency medicalcare.

(Source: P.A. 90-246, eff. 1- 1-98.)

40a

KING COUNTY, WASHINGTON, REGULATION

KING COUNTY

Signature Report

July 21, 2017

R&R BOH17-04

Proposed No. BOH17-0.42