# Amicus Curiae Brief — Nat'l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 464 (2017) (No. 16-1140) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0737%3A34 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2017 ## Text No. 16-1140 In the Supreme Court of the Anited States NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES, DBA NIFLA, ET AL., Petitioners, V. 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. il 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 - 1] 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 v 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 vi 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., ee 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. ix 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 x 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. 2 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). 3 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. 4 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 5 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*% 6 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. 7 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 / / 9 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 10 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) 11 (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 12 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 13 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 14 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 15 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, 16 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 17 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. 18 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 19 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. 20 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. 21 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. 22 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. 23 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 24 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- 25 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. 26 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. 27 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- 28 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 29 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 30 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. 31 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 32 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 33 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 34 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. 35 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.” 36 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: © Facenda v. N.F.L. Films, Inc., 542 F.3d 1007, 1017 (3d 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); 37 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). 38 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 la 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. 2a (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, 3a and not less than $450 for a third or succeeding offense. (C) A culpable mental state is not required, and 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 4a 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. 5a (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”}. 6a (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 7a 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 8a 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. 9a (c) Because pregnancy decisions are time sensi- 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. (c) This article shall not apply to either of the fol- 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. (C) A digital notice distributed to all clients 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. (c) Prenatal care, abortion and emergency contracep- 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. (c) “Emergency contraception” shall mean one or 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. (c) Penalty. Covered facilities that fail to comply with 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. (c) Penalty. Covered facilities that fail to comply with 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. (c) Upon a finding by a court of competent jurisdic- 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. (c) Undertaking for the General Welfare. In adopting 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 (C) Provides family planning or pregnancy- 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. (c) The information required by subsection (b) 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. (c) The enforcement procedure and remedies pro- 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; (c) “Health care personnel” means any nurse, nurs- 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 Sponsors A RULE AND REGULATION relating to disclosure of information by limited service pregnancy centers; adding a new Title A to the BOH Code; enacted pur- suant to RCW 70.05.060, including the latest amendments or revisions thereto. BE IT ADOPTED BY THE KING COUNTY BOARD OF HEALTH: SECTION 1. Findings: A. The King County Board of Health finds that the Board of Health has a compelling interest in ensuring that women who might be pregnant are notified about whether or not the limited service pregnancy centers they visit for ultrasound, preg- nancy testing or pregnancy diagnosis or pregnan- cy options counseling are health care facilities. Lack of such a notification presents a threat to the public health because it might delay women from having the necessary information to seek compre- hensive family planning and reproductive health care services or obstetric health care available elsewhere, including information enabl [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0737%3A34. Public record. Not legal advice.