Existing law, the Reproductive Privacy Act, provides that every individual possesses a fundamental right of privacy with respect to reproductive decisions. Existing law provides that the state shall not deny or interfere with a womans 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 under 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 immediate free or low-cost access to comprehensive family planning services, prenatal care, and abortion, for eligible women. The bill would also require an unlicensed covered facility, as defined, to disseminate a notice to all clients, as specified, stating, among other things, that the facility is not licensed as a medical facility by the State of California.

The bill would authorize the Attorney General, city attorney, or county counsel to bring an action to impose a specified civil penalty against covered facilities that fail to comply with these requirements.

Existing law, the Reproductive Privacy Act, provides that every individual possesses a fundamental right of privacy with respect to reproductive decisions. Existing law provides that the state shall not deny or interfere with a womans 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 under 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 immediate free or low-cost access to comprehensive family planning services, prenatal care, and abortion, for eligible women. The bill would also require an unlicensed covered facility, as defined, to disseminate a notice to all clients, as specified, stating, among other things, that the facility is not licensed as a medical facility by the State of California.

The bill would authorize the Attorney General, city attorney, or county counsel to bring an action to impose a specified civil penalty against covered facilities that fail to comply with these requirements.

Existing law, the Reproductive Privacy Act, provides that every individual possesses a fundamental right of privacy with respect to reproductive decisions. Existing law provides that the state shall not deny or interfere with a womans 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 under 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 immediate free or low-cost access to comprehensive family planning services, prenatal care, and abortion, for eligible women. The bill would also require an unlicensed covered facility, as defined, to disseminate a notice to all clients, as specified, stating, among other things, that the facility is not licensed as a medical facility by the State of California.

The bill would authorize the Attorney General, city attorney, or county counsel to bring an action to impose a specified civil penalty against covered facilities that fail to comply with these requirements. The bill would also require the Attorney General to post on the Department of Justices Internet Web site a list of the covered facilities upon which a civil penalty has been imposed.

Existing law, the Reproductive Privacy Act, provides that every individual possesses a fundamental right of privacy with respect to reproductive decisions. Existing law provides that the state shall not deny or interfere with a womans 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 under 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 immediate free or low-cost access to comprehensive family planning services, prenatal care, and abortion, for eligible women. The bill would also require an unlicensed covered facility, as defined, to disseminate a notice to all clients, as specified, stating, among other things, that the facility is not licensed as a medical facility by the State of California.

The bill would authorize the Attorney General, city attorney, or county counsel to bring an action to impose a specified civil penalty against covered facilities that fail to comply with these requirements. The bill would also require the Attorney General to post on the Department of Justices Internet Web site a list of the covered facilities upon which a civil penalty has been imposed.

Existing law, the Reproductive Privacy Act, provides that every individual possesses a fundamental right of privacy with respect to reproductive decisions. Existing law provides that the state shall not deny or interfere with a womans 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 under 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 every pregnant woman has the right to decide whether to have a child or to obtain abortion care. California has public programs that provide immediate free or low-cost access to comprehensive family planning services, prenatal care, and abortion, for eligible women. The bill would also require an unlicensed covered facility, as defined, to disseminate a notice to all clients, as specified, stating, among other things, that the facility is not licensed as a medical facility by the State of California.

The bill would authorize the Attorney General, city attorney, or county counsel to bring an action to impose a specified civil penalty against covered facilities that fail to comply with these requirements. The bill would also require the Attorney General to post on the Department of Justices Internet Web site a list of the covered facilities upon which a civil penalty has been imposed.

Existing law, with exceptions, prohibits a person from selling, offering for sale, giving away, distributing, or otherwise furnishing materials intended to determine the presence of pregnancy, unless that person has obtained a certificate of acceptability from the State Department of Public Health declaring that the materials have been approved as to efficacy and safety by the department.

This bill would make technical, nonsubstantive changes to that provision.

 THIRD READING 

Bill No: AB 775

Author: Chiu (D) and Burke (D), et al.

Amended 5/4/15 in Assembly

Vote: 21

SENATE HEALTH COMMITTEE: 6-2, 6/24/15

AYES: Hernandez, Mitchell, Monning, Pan, Roth, Wolk

NOES: Nguyen, Nielsen

NO VOTE RECORDED: Hall

ASSEMBLY FLOOR: 49-26, 5/26/15 - See last page for vote

SUBJECT: Reproductive FACT Act

SOURCE: Attorney General Kamala Harris

Black Women for Wellness

NARAL Pro-Choice California

DIGEST: This bill enacts the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act and requires clinics and other facilities that provide family planning or pregnancy-related services to provide specified notices to clients

ANALYSIS:

Existing law:

1. Requires the Department of Public Health (DPH) to inspect and license health facilities, including but not limited to clinics.

2. Provides for exemptions from licensing requirements for certain types of clinics, including federally operated clinics, local government primary care clinics, clinics affiliated with an institution of higher learning, clinics conducted as outpatient departments of hospitals, and community or free clinics. Provides for exemptions for community or free clinics that are operated on separate premises from the licensed clinic and are only open for limited services of no more than 20 hours per week (also known as intermittent clinics).

3. Authorizes DPH to take various types of enforcement actions against a primary care clinic that has violated state law or regulation, including imposing fines, sanctions, civil or criminal penalties, and suspension or revocation of the clinic's license.

4. Grants a specific right of privacy under the California Constitution and provides that the right to have an abortion may not be infringed upon without a compelling state interest.

This bill:

1. Enacts the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (Reproductive FACT Act).

2. Defines a “licensed covered facility,” for the purposes of the Reproductive FACT Act, as a licensed clinic or an intermittent clinic operating under a primary care clinic 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, obstetric sonograms, or prenatal care to pregnant women;

2. The facility provides, or offers counseling about, contraception or contraceptive methods;

3. The facility offers pregnancy testing or pregnancy 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; or,

6. The facility has staff or volunteers who collect health information from clients.

3. Defines an “unlicensed covered facility,” for the purposes of the Reproductive FACT Act, as a facility that is not licensed and does not have a licensed medical provider on staff or under contract who provides or directly supervises the provision of all of the services, whose primary purpose is providing pregnancy-related services, and that satisfies two or more of the following:

1. The facility offers obstetric ultrasounds, obstetric sonograms, or prenatal care to pregnant women;

2. The facility offers pregnancy testing or pregnancy diagnosis;

3. The facility advertises or solicits patrons with offers to provide prenatal sonography, pregnancy tests, or pregnancy options counseling; or,

4. The facility has staff or volunteers who collect health information from clients.

4. Specifies this bill does not apply to a clinic directly conducted, maintained, or operated by the United States or any of its departments, officers, or agencies; or, a licensed primary care clinic that is enrolled as a Medi-Cal provider and a provider in the Family Planning, Access, Care, and Treatment Program (FamilyPACT).

5. Requires a licensed covered facility to disseminate to clients on site the following notice in English and in the primary threshold languages for Medi-Cal beneficiaries as determined by DHCS for the county in which the facility is located:

“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 abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number].”

6. Permits the notice to be combined with other mandated disclosures, but requires it be disclosed through one of the following methods:

1. A public notice posted in a conspicuous place where individuals wait that may be easily read by those seeking services from the facility. Requires the notice to be at least 8.5 inches by 11 inches and written in no less than 22-point type;

2. A printed notice distributed to all clients in no less than 14-point type; or,

3. 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. Requires a printed notice be available for all clients who cannot or do not wish to receive the information in a digital format.

7. Requires an unlicensed covered facility to disseminate 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 determined DHCS for the county in which the facility is located:

“This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.”

8. Requires the onsite notice for unlicensed covered facilities to be a sign at least 8.5 inches by 11 inches and written in no less than 48-point type, and to be posted conspicuously in the entrance of the facility and at least one additional area where clients wait to receive services.

9. Requires the notice in the advertising material for unlicensed covered facilities to be clear and conspicuous. Defines “clear and conspicuous” to mean in larger point type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from the surrounding text of the same size by symbols or other marks that call attention to the language.
   
   

10. Makes covered facilities that fail to comply with the Reproductive FACT Act liable for a civil penalty of $500 for a first offense and $1,000 for each subsequent offense. Permits the Attorney General (AG), city attorney, or county counsel to bring an action to impose a civil penalty after:

1. Providing the covered facility with reasonable notice of noncompliance, which informs the facility that it is subject to a civil penalty if it does not correct the violation within 30 days from the date the notice is sent to the facility; and,

2. Verifying that the violation was not corrected within the 30-day period.

11. Requires any penalty resulting from an action brought by the AG to be deposited into the General Fund. Requires the penalty, if the action is brought by a city attorney, to be paid to the treasurer of the city in which the judgment is entered. Requires the penalty, if the action is brought by a county counsel, to be paid to the treasurer of the county in which the judgment is entered.

12. Makes the provisions of the Reproductive FACT Act severable, and prohibits, if any provision of the Act or its application is held invalid, that invalidity from affecting other provisions or applications that can be given effect without the invalid provision or application.

Comments

1. Author’s statement. According to the author, California has a proud legacy of respecting reproductive freedom and funding forward-thinking programs to provide reproductive health assistance to low income women. The power of the law is only fully realized when California’s women are fully informed of the rights and services available to them. Because family planning and pregnancy decisions are time sensitive, California women should receive information that helps them make decisions and access financial support at the sites where they seek care. It is in the best interest of the state, patients and providers that women are aware of available assistance for preventing, continuing or terminating a pregnancy. According to the Department of Health Care Services, the Affordable Care Act expansion has made millions of Californians, 53 percent of them women, newly eligible for Medi-Cal. It is also critical that women know whether they are receiving care from licensed medical professionals when they are making important reproductive health decisions. AB 775 ensures that women in California are fully informed of their options and are able to make their own healthcare and pregnancy-related decisions.

2. Unintended pregnancies. Almost half of all pregnancies in California are unintended. According to a 2014 Guttmacher Institute document titled “State Facts About Unintended Pregnancy: California,” an extensive body of research links births resulting from unintended or closely spaced pregnancies to adverse maternal and child health outcomes and myriad social and economic challenges. Economically disadvantaged women are disproportionately affected by unintended pregnancy and its consequences. In 2008, the unintended pregnancy rate among women with incomes lower than the federal poverty level, at 137 per 1,000, was more than five times as high as the rate among women with incomes greater than 200 percent of poverty (26 per 1,000).

3. Crisis pregnancy centers (CPCs). According to a 2011 report by the Public Law Research Institute of UC Hastings College of the Law, CPCs are pro-life (largely Christian belief-based) organizations that offer a limited range of free pregnancy options, counseling, and other services to individuals that visit a center. CPCs are local non-profit organizations, generally receiving substantial funding and resources from at least one large pro-life umbrella organizations such as: Care Net, International Heart Beat, and the National Institute of Family and Life Advocates. CPCs typically do not offer services that conflict with pro-life pregnancy options, like abortion referrals or procedures. In contrast, full-service organizations that provide pregnancy-related services offer a wider variety of services including administering medical tests, performing medical procedures (including abortions), and providing counseling in pregnancy options. At least 228 CPCs exist in California and approximately 2,500 exist nationwide. CPC networks claim that centers collectively extended pregnancy services to approximately 1.8 million women between 2008 and 2013.

4. University of California, Hastings College of Law research report. In the fall of 2009 the Assembly Business, Professions and Consumer Protection Committee, concerned that CPCs throughout California were disseminating medically inaccurate information about pregnancy options available in the state, requested a report by the University of California, Hastings College of Law regarding CPCs' practices and potential legislative options for regulating them. Issued in April 2011 and updated in June 2015, "Pregnancy Resource Centers: Ensuring Access and Accuracy of Information," discusses several options for regulation of CPCs, ranging from creating new regulations, leveraging existing regulations aimed specifically at medical services, as well as creating a new statute. Because approaches that have treated CPCs and full-service pregnancy centers differently have been challenged as violating the First Amendment, the report concludes that the best approach to a statutory change would regulate all pregnancy centers, not just CPCs, in a uniform manner.

5. Policies in other locales. The City of New York enacted regulations in 2011 and Montgomery County, Maryland adopted a resolution in 2010 requiring CPCs without medical staff to post signage indicating that they do not have a licensed medical professional on staff and that pregnant women are encouraged to consult with a licensed health care provider. The City of New York’s regulations also required CPCs to disclose whether or not it provides referrals for abortions, emergency contraception, and prenatal care. In 2014, an appeals court overturned those provisions and the requirement that CPCs tell clients that New York City health officials recommend that pregnant women consult a licensed healthcare provider, but upheld the medical staff notification piece. The City and County of San Francisco passed a false advertising ordinance aimed at CPCs, called the Pregnancy Information and Protection Ordinance, which was challenged by CPC owner in court as a violation of free speech. The ordinance was upheld by a federal court earlier this year. 

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 6/29/15)

Attorney General Kamala Harris (co-source)

Black Women for Wellness (co-source)

NARAL Pro-Choice California (co-source)

ACT for Women and Girls

Alameda County Board of Supervisors

Alameda County Public Health Department

American Congress of Obstetricians and Gynecologists District IX

American Nurses Association\California

Anti-Defamation League

California Association for Nurse Practitioners

California Church IMPACT

California Family Health Council

California Immigrant Policy Center

California Latinas for Reproductive Justice

California Nurses Association

California Pan-Ethnic Health Network

California Primary Care Association

California Religious Coalition for Reproductive Choice

California Women Lawyers

California Women’s Law Center

Center on Reproductive Rights and Justice, University of California, Berkeley School of Law

Citizens for Choice

City and County of San Francisco

City and County of San Francisco Department of Public Health

City of Berkeley

City of Los Angeles Mayor Eric Garcetti

City of West Hollywood

Feminist Majority

Forward Together

Fresno Barrios Unidos

League of Women Voters of California

Los Angeles County Supervisor Shelia Kuehl

Maternal and Child Health Access

National Center for Youth Law

National Council of Jewish Women California

National Health Law Program

Planned Parenthood Affiliates of California

San Francisco Women’s Political Committee

Unite for Reproductive and Gender Equity

Western Methodist Justice Movement

Women’s Community Clinic

OPPOSITION: (Verified 6/29/15)

Alliance for Defending Freedom

Alternatives Pregnancy Center

California Catholic Conference

California Right to Life Committee

California, Concerned Women for America

Capitol Resource Institute

Marin Pregnancy Clinic

National Institute of Family and Life Advocates

Open Arms Pregnancy Center

ASSEMBLY FLOOR: 49-26, 5/26/15

AYES: Alejo, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chau, Chiu, Chu, Cooper, Dababneh, Daly, Dodd, Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Roger Hernández, Holden, Irwin, Jones-Sawyer, Levine, Lopez, Low, McCarty, Medina, Mullin, Nazarian, O'Donnell, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Santiago, Mark Stone, Thurmond, Ting, Weber, Williams, Wood, Atkins

NOES: Achadjian, Travis Allen, Baker, Bigelow, Brough, Chang, Dahle, Beth Gaines, Gallagher, Grove, Hadley, Jones, Kim, Lackey, Linder, Maienschein, Mayes, Melendez, Obernolte, Olsen, Patterson, Salas, Steinorth, Wagner, Waldron, Wilk

NO VOTE RECORDED: Bloom, Chávez, Cooley, Harper, Mathis

Prepared by: Melanie Moreno / HEALTH /

7/2/15 13:48:10

**** END ****

 THIRD READING 

Bill No: AB 775

Author: Chiu (D) and Burke (D), et al.

Amended 5/4/15 in Assembly

Vote: 21

SENATE HEALTH COMMITTEE: 6-2, 6/24/15

AYES: Hernandez, Mitchell, Monning, Pan, Roth, Wolk

NOES: Nguyen, Nielsen

NO VOTE RECORDED: Hall

ASSEMBLY FLOOR: 49-26, 5/26/15 - See last page for vote

SUBJECT: Reproductive FACT Act

SOURCE: Attorney General Kamala Harris

Black Women for Wellness

NARAL Pro-Choice California

DIGEST: This bill enacts the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act and requires clinics and other facilities that provide family planning or pregnancy-related services to provide specified notices to clients

ANALYSIS:

Existing law:

1. Requires the Department of Public Health (DPH) to inspect and license health facilities, including but not limited to clinics.

2. Provides for exemptions from licensing requirements for certain types of clinics, including federally operated clinics, local government primary care clinics, clinics affiliated with an institution of higher learning, clinics conducted as outpatient departments of hospitals, and community or free clinics. Provides for exemptions for community or free clinics that are operated on separate premises from the licensed clinic and are only open for limited services of no more than 20 hours per week (also known as intermittent clinics).

3. Authorizes DPH to take various types of enforcement actions against a primary care clinic that has violated state law or regulation, including imposing fines, sanctions, civil or criminal penalties, and suspension or revocation of the clinic's license.

4. Grants a specific right of privacy under the California Constitution and provides that the right to have an abortion may not be infringed upon without a compelling state interest.

This bill:

1. Enacts the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (Reproductive FACT Act).

2. Defines a “licensed covered facility,” for the purposes of the Reproductive FACT Act, as a licensed clinic or an intermittent clinic operating under a primary care clinic 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, obstetric sonograms, or prenatal care to pregnant women;

2. The facility provides, or offers counseling about, contraception or contraceptive methods;

3. The facility offers pregnancy testing or pregnancy 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; or,

6. The facility has staff or volunteers who collect health information from clients.

3. Defines an “unlicensed covered facility,” for the purposes of the Reproductive FACT Act, as a facility that is not licensed and does not have a licensed medical provider on staff or under contract who provides or directly supervises the provision of all of the services, whose primary purpose is providing pregnancy-related services, and that satisfies two or more of the following:

1. The facility offers obstetric ultrasounds, obstetric sonograms, or prenatal care to pregnant women;

2. The facility offers pregnancy testing or pregnancy diagnosis;

3. The facility advertises or solicits patrons with offers to provide prenatal sonography, pregnancy tests, or pregnancy options counseling; or,

4. The facility has staff or volunteers who collect health information from clients.

4. Specifies this bill does not apply to a clinic directly conducted, maintained, or operated by the United States or any of its departments, officers, or agencies; or, a licensed primary care clinic that is enrolled as a Medi-Cal provider and a provider in the Family Planning, Access, Care, and Treatment Program (FamilyPACT).

5. Requires a licensed covered facility to disseminate to clients on site the following notice in English and in the primary threshold languages for Medi-Cal beneficiaries as determined by DHCS for the county in which the facility is located:

“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 abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number].”

6. Permits the notice to be combined with other mandated disclosures, but requires it be disclosed through one of the following methods:

1. A public notice posted in a conspicuous place where individuals wait that may be easily read by those seeking services from the facility. Requires the notice to be at least 8.5 inches by 11 inches and written in no less than 22-point type;

2. A printed notice distributed to all clients in no less than 14-point type; or,

3. 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. Requires a printed notice be available for all clients who cannot or do not wish to receive the information in a digital format.

7. Requires an unlicensed covered facility to disseminate 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 determined DHCS for the county in which the facility is located:

“This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.”

8. Requires the onsite notice for unlicensed covered facilities to be a sign at least 8.5 inches by 11 inches and written in no less than 48-point type, and to be posted conspicuously in the entrance of the facility and at least one additional area where clients wait to receive services.

9. Requires the notice in the advertising material for unlicensed covered facilities to be clear and conspicuous. Defines “clear and conspicuous” to mean in larger point type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from the surrounding text of the same size by symbols or other marks that call attention to the language.
   
   

10. Makes covered facilities that fail to comply with the Reproductive FACT Act liable for a civil penalty of $500 for a first offense and $1,000 for each subsequent offense. Permits the Attorney General (AG), city attorney, or county counsel to bring an action to impose a civil penalty after:

1. Providing the covered facility with reasonable notice of noncompliance, which informs the facility that it is subject to a civil penalty if it does not correct the violation within 30 days from the date the notice is sent to the facility; and,

2. Verifying that the violation was not corrected within the 30-day period.

11. Requires any penalty resulting from an action brought by the AG to be deposited into the General Fund. Requires the penalty, if the action is brought by a city attorney, to be paid to the treasurer of the city in which the judgment is entered. Requires the penalty, if the action is brought by a county counsel, to be paid to the treasurer of the county in which the judgment is entered.

12. Makes the provisions of the Reproductive FACT Act severable, and prohibits, if any provision of the Act or its application is held invalid, that invalidity from affecting other provisions or applications that can be given effect without the invalid provision or application.

Comments

1. Author’s statement. According to the author, California has a proud legacy of respecting reproductive freedom and funding forward-thinking programs to provide reproductive health assistance to low income women. The power of the law is only fully realized when California’s women are fully informed of the rights and services available to them. Because family planning and pregnancy decisions are time sensitive, California women should receive information that helps them make decisions and access financial support at the sites where they seek care. It is in the best interest of the state, patients and providers that women are aware of available assistance for preventing, continuing or terminating a pregnancy. According to the Department of Health Care Services, the Affordable Care Act expansion has made millions of Californians, 53 percent of them women, newly eligible for Medi-Cal. It is also critical that women know whether they are receiving care from licensed medical professionals when they are making important reproductive health decisions. AB 775 ensures that women in California are fully informed of their options and are able to make their own healthcare and pregnancy-related decisions.

2. Unintended pregnancies. Almost half of all pregnancies in California are unintended. According to a 2014 Guttmacher Institute document titled “State Facts About Unintended Pregnancy: California,” an extensive body of research links births resulting from unintended or closely spaced pregnancies to adverse maternal and child health outcomes and myriad social and economic challenges. Economically disadvantaged women are disproportionately affected by unintended pregnancy and its consequences. In 2008, the unintended pregnancy rate among women with incomes lower than the federal poverty level, at 137 per 1,000, was more than five times as high as the rate among women with incomes greater than 200 percent of poverty (26 per 1,000).

3. Crisis pregnancy centers (CPCs). According to a 2011 report by the Public Law Research Institute of UC Hastings College of the Law, CPCs are pro-life (largely Christian belief-based) organizations that offer a limited range of free pregnancy options, counseling, and other services to individuals that visit a center. CPCs are local non-profit organizations, generally receiving substantial funding and resources from at least one large pro-life umbrella organizations such as: Care Net, International Heart Beat, and the National Institute of Family and Life Advocates. CPCs typically do not offer services that conflict with pro-life pregnancy options, like abortion referrals or procedures. In contrast, full-service organizations that provide pregnancy-related services offer a wider variety of services including administering medical tests, performing medical procedures (including abortions), and providing counseling in pregnancy options. At least 228 CPCs exist in California and approximately 2,500 exist nationwide. CPC networks claim that centers collectively extended pregnancy services to approximately 1.8 million women between 2008 and 2013.

4. University of California, Hastings College of Law research report. In the fall of 2009 the Assembly Business, Professions and Consumer Protection Committee, concerned that CPCs throughout California were disseminating medically inaccurate information about pregnancy options available in the state, requested a report by the University of California, Hastings College of Law regarding CPCs' practices and potential legislative options for regulating them. Issued in April 2011 and updated in June 2015, "Pregnancy Resource Centers: Ensuring Access and Accuracy of Information," discusses several options for regulation of CPCs, ranging from creating new regulations, leveraging existing regulations aimed specifically at medical services, as well as creating a new statute. Because approaches that have treated CPCs and full-service pregnancy centers differently have been challenged as violating the First Amendment, the report concludes that the best approach to a statutory change would regulate all pregnancy centers, not just CPCs, in a uniform manner.

5. Policies in other locales. The City of New York enacted regulations in 2011 and Montgomery County, Maryland adopted a resolution in 2010 requiring CPCs without medical staff to post signage indicating that they do not have a licensed medical professional on staff and that pregnant women are encouraged to consult with a licensed health care provider. The City of New York’s regulations also required CPCs to disclose whether or not it provides referrals for abortions, emergency contraception, and prenatal care. In 2014, an appeals court overturned those provisions and the requirement that CPCs tell clients that New York City health officials recommend that pregnant women consult a licensed healthcare provider, but upheld the medical staff notification piece. The City and County of San Francisco passed a false advertising ordinance aimed at CPCs, called the Pregnancy Information and Protection Ordinance, which was challenged by CPC owner in court as a violation of free speech. The ordinance was upheld by a federal court earlier this year. 

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 6/29/15)

Attorney General Kamala Harris (co-source)

Black Women for Wellness (co-source)

NARAL Pro-Choice California (co-source)

ACT for Women and Girls

Alameda County Board of Supervisors

Alameda County Public Health Department

American Congress of Obstetricians and Gynecologists District IX

American Nurses Association\California

Anti-Defamation League

California Association for Nurse Practitioners

California Church IMPACT

California Family Health Council

California Immigrant Policy Center

California Latinas for Reproductive Justice

California Nurses Association

California Pan-Ethnic Health Network

California Primary Care Association

California Religious Coalition for Reproductive Choice

California Women Lawyers

California Women’s Law Center

Center on Reproductive Rights and Justice, University of California, Berkeley School of Law

Citizens for Choice

City and County of San Francisco

City and County of San Francisco Department of Public Health

City of Berkeley

City of Los Angeles Mayor Eric Garcetti

City of West Hollywood

Feminist Majority

Forward Together

Fresno Barrios Unidos

League of Women Voters of California

Maternal and Child Health Access

National Center for Youth Law

National Council of Jewish Women California

National Health Law Program

Planned Parenthood Affiliates of California

San Francisco Women’s Political Committee

Unite for Reproductive and Gender Equity

Western Methodist Justice Movement

Women’s Community Clinic

OPPOSITION: (Verified 6/29/15)

Alliance for Defending Freedom

Alternatives Pregnancy Center

California Catholic Conference

California Right to Life Committee

California, Concerned Women for America

Capitol Resource Institute

Marin Pregnancy Clinic

National Institute of Family and Life Advocates

Open Arms Pregnancy Center

ASSEMBLY FLOOR: 49-26, 5/26/15

AYES: Alejo, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chau, Chiu, Chu, Cooper, Dababneh, Daly, Dodd, Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Roger Hernández, Holden, Irwin, Jones-Sawyer, Levine, Lopez, Low, McCarty, Medina, Mullin, Nazarian, O'Donnell, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Santiago, Mark Stone, Thurmond, Ting, Weber, Williams, Wood, Atkins

NOES: Achadjian, Travis Allen, Baker, Bigelow, Brough, Chang, Dahle, Beth Gaines, Gallagher, Grove, Hadley, Jones, Kim, Lackey, Linder, Maienschein, Mayes, Melendez, Obernolte, Olsen, Patterson, Salas, Steinorth, Wagner, Waldron, Wilk

NO VOTE RECORDED: Bloom, Chávez, Cooley, Harper, Mathis

Prepared by: Melanie Moreno / HEALTH /

7/1/15 16:17:04

**** END ****

SENATE COMMITTEE ON HEALTH

Senator Ed Hernandez, O.D., Chair

BILL NO: AB 775

SUBJECT: Reproductive FACT Act.

SUMMARY:

1. Enacts the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act and requires clinics and other facilities that provide family planning or pregnancy-related services to provide specified notices to clients.

Existing law:

1. Requires the Department of Public Health (DPH) to inspect and license health facilities, including but not limited to clinics.

2. Provides for exemptions from licensing requirements for certain types of clinics, including federally operated clinics, local government primary care clinics, clinics affiliated with an institution of higher learning, clinics conducted as outpatient departments of hospitals, and community or free clinics. Provides for exemptions for community or free clinics that are operated on separate premises from the licensed clinic and are only open for limited services of no more than 20 hours per week (also known as intermittent clinics).

3. Authorizes DPH to take various types of enforcement actions against a primary care clinic that has violated state law or regulation, including imposing fines, sanctions, civil or criminal penalties, and suspension or revocation of the clinic's license.

4. Grants a specific right of privacy under the California Constitution and provides that the right to have an abortion may not be infringed upon without a compelling state interest.

This bill:

1. Enacts the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (Reproductive FACT Act).

2. Defines a “licensed covered facility,” for the purposes of the Reproductive FACT Act, as a licensed clinic or an intermittent clinic operating under a primary care clinic 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, obstetric sonograms, or prenatal care to pregnant women;

2. The facility provides, or offers counseling about, contraception or contraceptive methods;

3. The facility offers pregnancy testing or pregnancy 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; or,

6. The facility has staff or volunteers who collect health information from clients.

3. Defines an “unlicensed covered facility,” for the purposes of the Reproductive FACT Act, as a facility that is not licensed and does not have a licensed medical provider on staff or under contract who provides or directly supervises the provision of all of the services, whose primary purpose is providing pregnancy-related services, and that satisfies two or more of the following:

1. The facility offers obstetric ultrasounds, obstetric sonograms, or prenatal care to pregnant women;

2. The facility offers pregnancy testing or pregnancy diagnosis;

3. The facility advertises or solicits patrons with offers to provide prenatal sonography, pregnancy tests, or pregnancy options counseling; or,

4. The facility has staff or volunteers who collect health information from clients.

4. Specifies this bill does not apply to a clinic directly conducted, maintained, or operated by the United States or any of its departments, officers, or agencies; or, a licensed primary care clinic that is enrolled as a Medi-Cal provider and a provider in the Family Planning, Access, Care, and Treatment Program (FamilyPACT).

5. Requires a licensed covered facility to disseminate to clients on site the following notice in English and in the primary threshold languages for Medi-Cal beneficiaries as determined by DHCS for the county in which the facility is located:

“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 abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number].”

6. Permits the notice to be combined with other mandated disclosures, but requires it be disclosed through one of the following methods:

1. A public notice posted in a conspicuous place where individuals wait that may be easily read by those seeking services from the facility. Requires the notice to be at least 8.5 inches by 11 inches and written in no less than 22-point type;

2. A printed notice distributed to all clients in no less than 14-point type; or,

3. 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. Requires a printed notice be available for all clients who cannot or do not wish to receive the information in a digital format.

7. Requires an unlicensed covered facility to disseminate 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 determined DHCS for the county in which the facility is located:

“This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.”

8. Requires the onsite notice for unlicensed covered facilities to be a sign at least 8.5 inches by 11 inches and written in no less than 48-point type, and to be posted conspicuously in the entrance of the facility and at least one additional area where clients wait to receive services.

9. Requires the notice in the advertising material for unlicensed covered facilities to be clear and conspicuous. Defines “clear and conspicuous” to mean in larger point type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from the surrounding text of the same size by symbols or other marks that call attention to the language.

10. Makes covered facilities that fail to comply with the Reproductive FACT Act liable for a civil penalty of $500 for a first offense and $1,000 for each subsequent offense. Permits the Attorney General (AG), city attorney, or county counsel to bring an action to impose a civil penalty after:

1. Providing the covered facility with reasonable notice of noncompliance, which informs the facility that it is subject to a civil penalty if it does not correct the violation within 30 days from the date the notice is sent to the facility; and,

2. Verifying that the violation was not corrected within the 30-day period.

11. Requires any penalty resulting from an action brought by the AG to be deposited into the General Fund. Requires the penalty, if the action is brought by a city attorney, to be paid to the treasurer of the city in which the judgment is entered. Requires the penalty, if the action is brought by a county counsel, to be paid to the treasurer of the county in which the judgment is entered.

12. Makes the provisions of the Reproductive FACT Act severable, and prohibits, if any provision of the Act or its application is held invalid, that invalidity from affecting other provisions or applications that can be given effect without the invalid provision or application.

FISCAL EFFECT:

This bill is keyed non-fiscal

PRIOR VOTES:

COMMENTS:

1. Author’s statement. According to the author, California has a proud legacy of respecting reproductive freedom and funding forward-thinking programs to provide reproductive health assistance to low income women. The power of the law is only fully realized when California’s women are fully informed of the rights and services available to them. Because family planning and pregnancy decisions are time sensitive, California women should receive information that helps them make decisions and access financial support at the sites where they seek care. It is in the best interest of the state, patients and providers that women are aware of available assistance for preventing, continuing or terminating a pregnancy. According to the Department of Health Care Services, the Affordable Care Act expansion has made millions of Californians, 53 percent of them women, newly eligible for Medi-Cal. It is also critical that women know whether they are receiving care from licensed medical professionals when they are making important reproductive health decisions. AB 775 ensures that women in California are fully informed of their options and are able to make their own healthcare and pregnancy-related decisions.

2. Unintended pregnancies. Almost half of all pregnancies in California are unintended. According to a 2014 Guttmacher Institute document titled “State Facts About Unintended Pregnancy: California,” an extensive body of research links births resulting from unintended or closely spaced pregnancies to adverse maternal and child health outcomes and myriad social and economic challenges. Economically disadvantaged women are disproportionately affected by unintended pregnancy and its consequences. In 2008, the unintended pregnancy rate among women with incomes lower than the federal poverty level, at 137 per 1,000, was more than five times as high as the rate among women with incomes greater than 200 percent of poverty (26 per 1,000).

3. Crisis pregnancy centers. According to a 2011 report by the Public Law Research Institute of UC Hastings College of the Law, CPCs are pro-life (largely Christian belief-based) organizations that offer a limited range of free pregnancy options, counseling, and other services to individuals that visit a center. CPCs are local non-profit organizations, generally receiving substantial funding and resources from at least one large pro-life umbrella organizations such as: Care Net, International Heart Beat, and the National Institute of Family and Life Advocates. CPCs typically do not offer services that conflict with pro-life pregnancy options, like abortion referrals or procedures. In contrast, full-service organizations that provide pregnancy-related services offer a wider variety of services including administering medical tests, performing medical procedures (including abortions), and providing counseling in pregnancy options. At least 228 CPCs exist in California and approximately 2,500 exist nationwide. CPC networks claim that centers collectively extended pregnancy services to approximately 1.8 million women between 2008 and 2013.

4. University of California, Hastings College of Law research report. In the fall of 2009 the Assembly Business, Professions and Consumer Protection Committee, concerned that CPCs throughout California were disseminating medically inaccurate information about pregnancy options available in the state, requested a report by the University of California, Hastings College of Law regarding CPCs' practices and potential legislative options for regulating them. Issued in April 2011 and updated in June 2015, "Pregnancy Resource Centers: Ensuring Access and Accuracy of Information," discusses several options for regulation of CPCs, ranging from creating new regulations, leveraging existing regulations aimed specifically at medical services, as well as creating a new statute. Because approaches that have treated CPCs and full-service pregnancy centers differently have been challenged as violating the First Amendment, the report concludes that the best approach to a statutory change would regulate all pregnancy centers, not just CPCs, in a uniform manner.

5. Policies in other locales. The City of New York enacted regulations in 2011 and Montgomery County, Maryland adopted a resolution in 2010 requiring CPCs without medical staff to post signage indicating that they do not have a licensed medical professional on staff and that pregnant women are encouraged to consult with a licensed health care provider. The City of New York’s regulations also required CPCs to disclose whether or not it provides referrals for abortions, emergency contraception, and prenatal care. In 2014, an appeals court overturned those provisions and the requirement that CPCs tell clients that New York City health officials recommend that pregnant women consult a licensed healthcare provider, but upheld the medical staff notification piece. The City and County of San Francisco passed a false advertising ordinance aimed at CPCs, called the Pregnancy Information and Protection Ordinance, which was challenged by CPC owner in court as a violation of free speech. The ordinance was upheld by a federal court earlier this year. 

6. Support. Black Women for Wellness and NARAL Pro-Choice, California co-sponsors of this bill, and numerous other organizations, including, California Council of Churches IMPACT, California Latinas for Reproductive Justice, Maternal and Child Health Access, and Planned Parenthood, California, state that this bill will enable women to seek the care they wish to obtain and providing context for counseling given at unlicensed facilities. They also state that distributing a notice of reproductive health services would ensure that women in any reproductive health or pregnancy counseling facility know that California respects their rights and provides assistance. The California Primary Care Association (CPCA) states this bill will protect patients by allowing them to fully understand their rights when it comes to their reproductive freedom and to not be deceived by organizations whose sole purpose is to provide them with a biased view that does not allow them to make their own informed choice. CPCA notes that many of their community clinics and health centers grew out of the women's movement and their members believe a women's right to choose is a fundamental health right that must be protected. The American Nurses Association, California (ANA\C) writes that all California residents should have access to reproductive health services, and more than 700,000 California women become pregnant every year, approximately half of them unintentionally. ANA\C states thousands of women do not know the legal options they have, or the funding resources available to them, and this bill will help ensure that pregnant women receive the information they need to make an informed decision. Forward Together states that women in California face a threat from manipulative crisis pregnancy centers which pose as comprehensive reproductive health centers, but are, in fact, anti-choice organizations that target women with the goal of blocking them from considering abortion as an option and using proven contraceptive methods. Forward Together contends that CPCs use false and misleading advertising to appeal to women, who think they may be pregnant and are looking for comprehensive reproductive health care, and then manipulate and shame these women by peddling medically inaccurate information about abortion and contraception.
   
   

7. Opposition. The California Catholic Conference (CCC) states that on its surface, the bill proposes to regulate the state's pregnancy centers, but in actuality is aimed at discriminating against those pregnancy centers that hold a pro-life viewpoint. CCC contends that such unfair legislation may discourage women from getting the assistance that they need and deserve as well as expose many of these pregnancy centers to needless criminal or civil sanctions for failure to comply. CCC concludes that because they believe all life is sacred, they support programs which offer medical, economic and emotional support for pregnant women and children, so that they can make life-affirming choices. The California Right to Life Committee, Inc. (CRLC) states that, if enacted, it could set a precedent for many other businesses that are not like or appreciated by one group in society which could bring a law suit against another business, company, or agency. CRLC asks us to consider car dealerships: what if they were to be seen as anti-environmental with misleading advertising, selling too many cars, and making citizens not anxious to take high speed rail? CRLC asks: would it not be possible that the California High Speed Rail Authority require that car dealerships advertise High Speed Rail locations, schedules, and fees? CRLC argues the provisions of this bill would not be best practice for the car industry any more that it would be for pro-life pregnancy centers to have to promote services which they consider morally reprehensible.

SUPPORT AND OPPOSITION:

Support:

Attorney General Kamala Harris (co-sponsor)

Black Women for Wellness (co-sponsor)

NARAL Pro-Choice California (co-sponsor)

ACT for Women and Girls

Alameda County Board of Supervisors

Alameda County Public Health Department

American Congress of Obstetricians and Gynecologists District IX

American Nurses Association\California

Anti-Defamation League

California Association for Nurse Practitioners

California Church IMPACT

California Family Health Council

California Latinas for Reproductive Justice

California Nurses Association

California Pan-Ethnic Health Network

California Primary Care Association

California Religious Coalition for Reproductive Choice

California Women Lawyers

California Women’s Law Center

Center on Reproductive Rights and Justice, University of California, Berkeley School of Law

Citizens for Choice

City and County of San Francisco

City and County of San Francisco Department of Public Health

City of Berkeley

City of Los Angeles Mayor Eric Garcetti

City of West Hollywood

Feminist Majority

Forward Together

Fresno Barrios Unidos

League of Women Voters of California

Maternal and Child Health Access

National Center for Youth Law

National Council of Jewish Women California

National Health Law Program

Planned Parenthood Affiliates of California

San Francisco Women’s Political Committee

Unite for Reproductive and Gender Equity

Western Methodist Justice Movement

Women’s Community Clinic

Oppose:

Alternatives Pregnancy Center

California Catholic Conference

California Right to Life Committee

California, Concerned Women for America

Capitol Resource Institute

Marin Pregnancy Clinic

National Institute of Family and Life Advocates

Open Arms Pregnancy Center

Numerous individuals

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 775

Author:(Chiu and Burke)

As Amended Ver:May 4, 2015

Majority vote

SUMMARY: Requires licensed clinics that provide family planning or pregnancy-related services to provide a notice to consumers regarding their reproductive rights and the availability of services in California. Requires unlicensed facilities that provide pregnancy-related services to disseminate and post a notice informing consumers that they are not a licensed medical facility and to include the notice in their advertising materials.

FISCAL EFFECT: None

COMMENTS:

1. Purpose of this bill. According to the author, California has a proud legacy of respecting reproductive freedom and funding forward thinking programs to provide reproductive health assistance to low income women. The author notes that according to the Department of Health Care Services, the Patient Protection and Affordable Care Act expansion has made millions of Californians, 53% of them women, newly eligible for Medi-cal. The author states because pregnancy decisions are time sensitive, California women should receive information about their rights and available services at the sites where they obtain care.

The author contends that, unfortunately, there are nearly 200 licensed and unlicensed clinics known as crisis pregnancy centers (CPCs) in California whose goal is to interfere with a woman's ability to be fully informed and exercise their reproductive rights, and that CPCs pose as full-service women's health clinics, but aim to discourage and prevent women from seeking abortions. The author concludes that these intentionally deceptive advertising and counseling practices often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.

2. Background. CPCs are facilities, both licensed and unlicensed, which present themselves as comprehensive reproductive health centers, but are commonly affiliated with, or run by organizations whose stated goal is to prevent women from accessing abortions. A 2015 NARAL Pro-Choice America report on CPCs notes that the National Institute of Family and Life Advocates (an organization with over 1,300 CPC affiliates) states on its Web site that it is on the front line of the cultural battle over abortion, and its vision is to provide CPCs with legal resources and counsel, with the aim of developing a network of life-affirming ministries in every community across the nation in order to achieve an abortion-free America. The NARAL report also sent several researchers into CPCs to receive the counseling offered, and they widely reported that they were provided with inaccurate information, including only being given information regarding the risks of abortion, being told that many women commit suicide after having an abortion, and being told abortions can cause breast cancer.

In fall of 2009 the Assembly Business, Professions and Consumer Protection Committee, concerned that CPCs throughout California were disseminating medically inaccurate information about pregnancy options available in the state, requested a report by the University of California, Hastings College of Law regarding CPCs' practices and potential legislative options for regulating them. Completed in December of 2010, "Pregnancy Resource Centers: Ensuring Access and Accuracy of Information," discusses several options for regulation of CPCs, ranging from creating new regulations, leveraging existing regulations aimed specifically at medical services, as well as creating a new statute. Because approaches that have treated CPCs and full-service pregnancy centers differently have been challenged as violating the First Amendment, the report concludes that the best approach to a statutory change would regulate all pregnancy centers, not just CPCs, in a uniform manner, which is the approach that this bill adopts.

3. Support. Black Women for Wellness and NARAL Pro-Choice, California the co-sponsors of this bill as well as numerous other organizations, including, California Council of Churches IMPACT, California Latinas for Reproductive Justice, Maternal and Child Health Access, and Planned Parenthood, California, support this bill because it requires unlicensed facilities that provide pregnancy-related care to inform clients that they are not a licensed medical facility and do not have a licensed provider on staff, enabling women to seek the care they wish to obtain and providing context for counseling given at these unlicensed facilities. They also state that distributing a notice of reproductive health services would ensure that women in any reproductive health or pregnancy counseling facility know that California respects their rights and provides assistance.

4. Opposition. The California Catholic Conference (CCC) opposes this bill stating, on its surface, this bill proposes to regulate the state's pregnancy centers, but in actuality is aimed at discriminating against those pregnancy centers that hold a pro-life viewpoint. CCC contends that such unfair legislation may discourage women from getting the assistance that they need and deserve as well as expose many of these pregnancy centers to needless criminal or civil sanctions for failure to comply. CCC concludes that because they believe all life is sacred, they support programs which offer medical, economic and emotional support for pregnant women and children, so that they can make life-affirming choices.

Analysis Prepared by: Lara Flynn / HEALTH / (916) 319-2097 FN: 0000399

Date of Hearing: May 6, 2015

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Jimmy Gomez, Chair

ABPCA Bill Id:AB 775

Author:(Chiu) – As Amended Ver:May 4, 2015

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill:

1. Requires licensed clinics that provide family planning or pregnancy-related services to provide a specific notice to consumers regarding public programs whereby patients can access reproductive health services, but exempts federal government clinics and clinics participating in Medi-Cal and the Family Planning, Access, Care, and Treatment Program (FPACT) from notice requirements.

2. Requires unlicensed facilities that provide pregnancy-related services to disseminate and post a notice informing consumers that they are not a licensed medical facility.

3. Specifies penalties of $500 for the first instance of noncompliance, and $1,000 for subsequent noncompliance, and authorizes the Attorney General, city attorney, or county counsel to bring an action to impose penalties.

FISCAL EFFECT:

Minor potential enforcement costs to the Department of Justice, and minor potential penalty revenues, which would be GF revenues.

Any costs would be dependent on the scope of enforcement, which would be at the discretion of the Attorney General, and any revenues would be dependent on the number of instances of noncompliance.

COMMENTS:

1. Purpose. The purpose of this bill is to provide consumer protection and disclosure for women seeking pregnancy or family planning-related services. The author contends there are nearly 200 licensed and unlicensed clinics known as crisis pregnancy centers (CPCs) in California whose goal is to interfere with women's ability to be fully informed and exercise their reproductive rights, and that CPCs pose as full-service women's health clinics, but aim to discourage and prevent women from seeking abortions. The author concludes that these intentionally deceptive advertising and counseling practices often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.
   
   

2. Crisis Pregnancy Centers. CPCs are facilities, both licensed and unlicensed, that are commonly affiliated with, or run by organizations whose stated goal is to prevent women from accessing abortions.

Issues related to constitutionality and free speech are addressed in the Judiciary Committee policy analysis.

3. Support. This bill is supported by reproductive health professionals, various women's groups, Planned Parenthood, and Maternal And Child Health Access, among others, and is sponsored by Black Women for Wellness and NARAL Pro-Choice California. These groups believe this bill will protect patients by allowing them to fully understand their reproductive rights, and will protect them from deception by organizations whose sole purpose is to provide them with a biased view that does not allow them to make their own informed choice.

4. Opposition. This bill is opposed by groups who oppose abortion. The California Catholic Conference (CCC) opposes this bill stating, on its surface, the bill proposes to regulate the state's pregnancy centers, but in actuality is aimed at discriminating against those pregnancy centers that hold a pro-life viewpoint. The California Right to Life Committee, Inc. (CRLC) also opposes this bill and states it forces pro-life pregnancy centers to promote services which they consider morally reprehensible.

Analysis Prepared by: Lisa Murawski / APPR. / (916) 319-2081

Date of Hearing: April 28, 2015

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 775

Author:(Chiu) – As Amended Ver:April 16, 2015

SUBJECT: REPRODUCTIVE FACT ACT

KEY ISSUES:

1. SHOULD LICENSED PRIMARY CARE CLINICS THAT PROVIDE FAMILY PLANNING OR PREGNANCY-RELATED SERVICES BE REQUIRED TO PROVIDE A SPECIFIED NOTICE INFORMING CONSUMERS ABOUT THE EXISTENCE OF A CONTINUUM OF FREE OR LOW-COST HEALTH CARE SERVICES?

2. SHOULD AN UNLICENSED FACILITY THAT PROVIDES PREGNANCY-RELATED SERVICES BE REQUIRED TO PROVIDE A SPECIFIED NOTICE INFORMING CONSUMERS THAT IT IS NOT A LICENSED MEDICAL FACILITY?

SYNOPSIS

This bill, co-sponsored by NARAL Pro-Choice America and Black Women for Wellness, seeks to that ensure that women who are pregnant are fully notified about the continuum of health care services available in the state. With respect to licensed health care facilities, the bill requires each client at the time of her visit to be advised of the various publicly funded family planning and pregnancy-related resources available in California, and how to directly access these resources. Proponents of the bill contend that this notice is needed to ensure that women in California are fully informed of their options and are able to make their own healthcare and pregnancy-related decisions. Opponents of the bill, representing operators of pregnancy clinics impacted by this bill and other concerned citizens holding pro-life views, strongly object to this requirement and assert that it unfairly targets pro-life pregnancy clinics because of their anti-abortion viewpoint, forcing them to disseminate a message with which they do not agree, in violation of free speech protections. The Committee's analysis of the free speech issues indicates that the licensed facility notice is content-based and would likely be considered viewpoint-neutral commercial speech. As such, it would be subject to intermediate scrutiny. Furthermore, even if the licensed facility notice were subjected to strict scrutiny, it would likely be found to be constitutional if the court agreed with the proponents' argument that the most effective way to ensure that women timely obtain the information and services they need during pregnancy is to require licensed health facilities to provide the notice.

With respect to unlicensed facilities, the bill simply requires each client to be advised at the time of her visit that the facility is not licensed as a medical facility. Proponents of the bill contend that this notice is needed to ensure that pregnant women in California know when they are (and are not) getting medical care from licensed professionals. Opponents generally do not allege this notice violates free speech protections, but some contend that this provision requires unlicensed clinics to post language that is untrue. They contend that many of the non-licensed clinics do have licensed medical staff on site as the clinics seek to become licensed. The Committee's analysis of the unlicensed facility notice concludes that it is content-based and would most likely be considered viewpoint-neutral commercial speech. As such, the required notice would be subject to rational basis scrutiny and would likely be found permissible under that standard. Even if the notice were to be subject to strict scrutiny, it would likely withstand strict scrutiny, especially in light of two recent court decisions from other states which have upheld, after applying strict scrutiny, requirements for unlicensed facilities to provide similar notices.

Finally, the bill authorizes modest civil penalties to be imposed if, after having been given notice of non-compliance and 30 days in which to correct a violation, the facility still fails to comply with these provisions. This bill previously passed the Health Committee by a 12-5 vote, and will be referred to Appropriations should it be approved in this Committee.

SUMMARY: Requires licensed facilities and unlicensed facilities whose purpose is to provide pregnancy-related services to provide specified notices to clients. Specifically, this bill:

1. Defines a licensed covered facility to mean a licensed, or intermittent, clinic 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, obstetric sonograms, or prenatal care to pregnant women;

   2. The facility provides, or offers counseling about contraception, or contraceptive methods;

   3. The facility offers pregnancy testing or pregnancy diagnosis;

   4. The facility advertises or solicits patrons with offers to provide prenatal sonography, pregnancy tests, or pregnancy options counseling; and,

   5. The facility has staff or volunteers who collect health information from clients.
      
      
      

2. Clarifies that the following types of clinics are not considered covered facilities for the purposes of this bill:
   
   
   

   1. A clinic directly conducted, maintained, or operated by the United States or any of its departments, officers, or agencies; and,

   2. A licensed primary care clinic that is enrolled as a Medi-Cal provider and a provider in the Family Planning, Access, Care, and Treatment Program.
      
      
      

3. Defines an unlicensed covered facility to mean a facility that is not licensed by the State of California and does not have a licensed medical provider on staff, whose primary purpose is providing pregnancy-related services and that satisfies two or more of the following:
   
   
   

   1. The facility offers obstetric ultrasounds, obstetric sonograms, or prenatal care to pregnant women;

   2. The facility offers pregnancy testing or pregnancy diagnosis;

   3. The facility advertises or solicits patrons with offers to provide prenatal sonography, pregnancy tests, or pregnancy options counseling; and,

   4. The facility has staff or volunteers who collect health information from clients.
      
      
      

4. Requires licensed covered facilities to disseminate the following notice in English and in minority languages pursuant to the federal Voting Rights Act, that states the following:

"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 abortion, for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number]. "

5. Requires the notice to be posted in a conspicuous place in the licensed clinic, specifies the size of the type on the notice, and requires a printed copy be given directly to the client, either in written or digital form. Allows the notice to be combined with other mandated disclosures.

6. Requires an unlicensed facility to disseminate a notice to clients in English and in minority languages pursuant to the federal Voting Rights Act that states the following:

"This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services."

7. Specifies the size of the notice, the size type the notice is printed in, and that the notice is to be posted conspicuously in the entrance to the unlicensed facility and in at least one other area where clients wait to receive services. Requires that the notice shall be given to clients onsite, and included in any print and digital advertising materials.
   
   
   

8. Establishes civil penalties for failure to comply with these provisions, enforceable by the Attorney General (AG), a city attorney, or county counsel if they have provided the facility with reasonable notice of noncompliance and verified that the violation was not corrected within 30 days from the date of the notice.
   
   
   

9. Specifies that any civil penalties be deposited into the General Fund if an action is brought by the AG, paid to the treasurer of the city if an action is brought by a city attorney, and paid to the county treasurer if an action is brought by a county counsel.
   
   
   

10. Requires the AG to post and maintain on the Department of Justice's (DOJ) Internet Web site a list of the covered facilities upon which a penalty for violation of these requirements has been imposed.
    
    
    

11. Provides that if any provisions of this bill or its application is held invalid, that invalidity will not affect other provisions or applications that can be given effect without the invalid provision or application.
    
    
    

12. Makes various findings and declarations, including, among other things:

1. Because pregnancy decisions are time sensitive, and care early in pregnancy is important, California must supplement its own efforts to advise women of its reproductive health programs.

2. 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 ensure licensed health care facilities that are unable to immediately enroll patients into the Family PACT and Medi-Cal programs advise each patient at the time of her visit 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.

3. The purpose of the Act is to ensure that California residents make their personal reproductive health care decisions by knowing their rights and health care services available to them.

EXISTING LAW:

1. Licenses and regulates clinics, including primary care clinics and specialty clinics such as surgical clinics, by the Department of Public Health (DPH). (Health and Safety Code Section 1200 et seq.)

2. Provides for exemptions from licensing requirements for certain types of clinics, including federally operated clinics, local government primary care clinics, clinics affiliated with an institution of higher learning, clinics conducted as outpatient departments of hospitals, and community or free clinics. (Health and Safety Code Section 1206.)

3. Prohibits any government body from making any law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. (U.S. Constitution, Amendment I, made applicable to the states by Amendment XIV.)

4. Provides that every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right, and that no law shall restrain or abridge liberty of speech or press. (Cal. Const., Art. I, Section 2.)

5. Holds that the government is “free to prevent the dissemination to commercial speech that is false, deceptive, or misleading” without violating the First Amendment. (Zauderer v. Office of Disciplinary Counsel of the Supreme Ct. (1985) 471 U.S. 638.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: This bill, co-sponsored by NARAL Pro-Choice America and Black Women for Wellness, seeks to ensure that women who are pregnant are fully notified about the continuum of health care services available in the state. With respect to licensed health care facilities, the bill requires each client at the time of her visit to be advised of the various publicly funded family planning and pregnancy-related resources available in California, and how to directly access these resources. With respect to unlicensed facilities, the bill simply requires each client to be advised at the time of her visit that the facility is not licensed to provide medical care. The bill authorizes modest civil penalties to be imposed if, after having been given notice of noncompliance and 30 days in which to correct a violation, the facility still fails to comply with these provisions.

Author's Statement. According to the author:

California has a proud legacy of respecting reproductive freedom and funding forward-thinking programs to provide reproductive health assistance to low income women. The power of the law is only fully realized when California’s women are fully informed of the rights and services available to them. Because family planning and pregnancy decisions are time sensitive, California women should receive information about their rights and available services at the sites where they obtain care.

Millions of California women are in need of publicly funded family planning services, contraception services and education, abortion services, and prenatal care and delivery. More than 700,000 California women become pregnant every year and one-half of these pregnancies are unintended. Yet, at the moment they learn they are pregnant, thousands of women remain unaware of the public programs available to them, including contraception, health education and counseling, family planning, prenatal care, abortion or delivery.

It is in the best interest of the state, patients and providers that women are aware of available assistance to them – whether it is for preventing, continuing, or terminating a pregnancy. AB 775 ensures that women in California are fully informed of their options and are able to make their own healthcare and pregnancy-related decisions.

Background on Community Clinics. Community clinics and health centers are nonprofit, tax-exempt clinics that are licensed as community or free clinics, and provide services to patients on a sliding fee scale basis or, in the case of free clinics, at no charge to the patients. These include federally designated community health centers, migrant health centers, rural health centers, and frontier health centers. California is home to nearly 1,000 community clinics serving more than 5.6 million patients (or one in seven Californians) annually through over 17 million patient encounters. More than 50% of these patients are Hispanic and 43% speak a primary language other than English.

The non-statutory term "crisis pregnancy center" (CPC) refers to a subset of facilities that offer pregnancy-related services and are commonly affiliated with or operated by organizations whose stated goal is to prevent women from accessing abortions. Depending on factors like the personnel who are employed and the types of clinical or medical services offered, a CPC may operate as a licensed facility or, if exempted under Health and Safety Code Section 1206, an unlicensed facility. For the purpose of analyzing the free speech issues raised by this bill, however, the only distinction that matters is whether a facility is considered a licensed covered facility or an unlicensed covered facility because the bill regulates all members within each category equally and each category contains both CPCs and non-CPCs.

I. FIRST AMENDMENT DOCTRINE: COMPELLED SPEECH. It is well-established that the First Amendment generally prohibits the government from compelling speech. “[T]he right of freedom of thought protected by the First Amendment … includes both the right to speak freely and the right to refrain from speaking at all.” (Wooley v. Maynard, 430 U.S. 705, 714; see R.J. Reynolds Tobacco Co. v. Shewry (9th Cir. 2005) 423 F.3d 906, 915.) However, the First Amendment’s protections—including the right to not be compelled to speak—are not absolute. (See Schenck v. United States (1919) 249 U.S. 47, 52, “The most stringent protection of free speech would not protect a man [from] falsely shouting fire in a theatre and causing panic.”)

In a compelled speech analysis, a court will uphold a law that compels speech if the law is tailored and the government’s reasoning behind the law survives the applicable level of scrutiny. A court applies different levels of scrutiny depending on how the speech is classified. The higher the scrutiny, the more tailored the law must be, and the more compelling the government’s interest must be. (See Riley v. National Federation of the Blind of North Carolina (1988) 487 U.S. 781, 796, “Our lodestars in deciding what level of scrutiny to apply to a compelled statement must be the nature of the speech taken as a whole and the effect of the compelled statement thereon.”)

A. Content-Based or Content-Neutral. The first classification of any regulation of speech is whether the regulation is “content-based” or “content-neutral.” However, the Supreme Court has stated that “[m]andating speech that a speaker would not otherwise make necessarily alters the content of the speech.” (Riley v. National Federation of the Blind of North Carolina, Inc. (1988) 487 U.S. 781, 795.) Accordingly, any compelled speech is viewed as a content-based regulation (i.e. a law proscribing certain content). (Ibid.)

Subject-Matter Discrimination vs. Viewpoint Discrimination. If the speech is a “content-based” regulation, a court will distinguish whether the law is “subject-matter discrimination” or “viewpoint discrimination.” For example, a regulation prohibiting discussion of abortion in general would be “subject-matter discrimination,” whereas a regulation prohibiting someone from speaking out against abortion would be “viewpoint discrimination.” While both forms of discrimination are content-based, the courts have held that “viewpoint discrimination” is an especially suspect and “egregious form of content discrimination [and] . . . the government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.” (Rosenberger v. Rector and Visitors of the Univ. of Va. (1995) 515 U.S. 819, 829.)

B. Commercial Speech (including Professional Speech) or Noncommercial Speech. The second level of analysis for a speech regulation is whether the speech being regulated is commercial or noncommercial speech. If the regulation is content-based and the speech is noncommercial, a court will likely apply the strict scrutiny. Conversely, a similar regulation that is content-based but where the speech is commercial, a court will apply a more lenient standard. (See Dex Media West, Inc. v. City of Seattle (9th Cir. 2012) 696 F.3d 952, 956-957.) Indeed, regulations targeting misleading commercial speech need only survive rational basis scrutiny. (See Zauderer v. Office of Disciplinary Counsel of the Supreme Ct. (1985) 471 U.S. 626.)

Sometimes, the line between commercial speech and noncommercial speech is not clear. For example, in Bolger v. Youngs Drug Products Corp., the Court struck down a federal law that prohibited unsolicited advertisements on contraception. There, a manufacturer and distributor of contraceptives—who challenged the law—distributed pamphlets which advertised its contraceptives and discussed in its pamphlets issues like venereal disease and family planning. Although the Court ultimately struck down the law, the Court held that the pamphlet was commercial speech. (Bolger v. Youngs Drug Prods. Corp. (1983) 463 U.S. 60, 75.)

Courts have established a test to help identify whether speech is more like commercial or noncommercial speech. In a close case where the regulation involves both commercial and noncommercial speech, a reviewing court looks at (i) the advertising format of the speech, (ii) the speech’s reference to a specific product, and (iii) the underlying economic motive of the speaker (collectively known as the “Bolger” factors). (Ass'n of Nat. Advertisers, Inc. v. Lungren (9th Cir. 1994) 44 F.3d 726, 728.)

(1) Commercial Speech. It is well-settled law that the government is “free to prevent the dissemination to commercial speech that is false, deceptive, or misleading” without violating the First Amendment. (Zauderer v. Office of Disciplinary Counsel of the Supreme Ct. (1985) 471 U.S. 638.) Specifically, “disclosure requirements trench much more narrowly on an advertiser’s interests [because] warnings or disclaimers might be appropriately required in order to dissipate the possibility of consumer confusion or deception.” (Id. at 651 [internal quotations omitted]). Accordingly, misleading commercial speech only needs to survive rational basis scrutiny. (Ibid.)

Indeed, “laws requiring a commercial speaker to make purely factual disclosures relating to its business affairs, whether to prevent deception or simply to promote informational transparency, have a purpose consistent with the reasons for according constitutional protection to commercial speech.” (Beeman v. Anthem Prescription Management, LLC (2013) 58 Cal.4th 329, 356 [citations omitted].) Similarly, “[m]andated disclosure of accurate, factual, commercial information does not offend the core First Amendment values of promoting efficient exchange of information or protecting individual liberty interests. Such disclosure furthers, rather than hinders, the First Amendment goal of the discovery of truth and contributes to the efficiency of the ‘marketplace of ideas.’” (National Electric Manufacturers Assn. v. Sorrell (2d Cir. 2001) 272 F.3d 104, 113-114.)

(2) Professional Speech. Courts have established a doctrine, like the commercial speech doctrine, that applies when government regulates professional speech. Justice Jackson provided the following explanation for why a professional speech doctrine exists:

The modern state owes and attempts to perform a duty to protect the public from those who seek for one purpose or another to obtain its money. When one does so through the practice of a calling, the state may have an interest in shielding the public against the untrustworthy, the incompetent, or the irresponsible, or against unauthorized representation of agency. A usual method of performing this function is through a licensing system….Very many are the interests which the state may protect against the practice of an occupation, very few are those it may assume to protect against the practice of propagandizing by speech or press. (Thomas v. Collins (1945) 323 U.S. 516, 545 (Jackson, J., concurring).)

In other words, a state or federal government may regulate professional speech because “[i]t is the State’s imprimatur (and the regulatory oversight that accompanies it) that provide clients with the confidence … to put their health or their livelihood in the hands of those [professionals] who utilize knowledge and methods with which the clients ordinarily have little or no familiarity. (King v. Governor of the State of New Jersey (3d Cir. 2014) 767 F.3d 216, 232.)

Professional speech, similar to commercial speech, is subject to lower level of scrutiny. The Ninth Circuit Court of Appeals, in Pickup v. Brown, explains this principle:

The First Amendment tolerates a substantial amount of speech regulation within the professional-client relationship that it would not tolerate outside of it. And that toleration makes sense: When professionals, by means of their state-issued licenses, form relationships with clients, the purpose of those relationships is to advance the welfare of the clients, rather than to contribute to public debate. (Pickup v. Brown (9th Cir. 2014) 740 F.3d 1208, 1228.)

To determine whether speech is professional speech, the inquiry is whether the “speaker takes the affairs of a client personally in hand and purports to exercise judgment on behalf of the client in the light of the client's individual needs and circumstances.” (Moore-King v. County of Chesterfield, Va. (4th Cir. 2013) 708 F.3d 560, 569 [citations omitted].)

II. APPLYING FREE SPEECH ANALYSIS TO THE REQUIRED NOTICE FOR LICENSED HEALTH CARE FACILITIES. This bill requires a licensed covered facility, as defined, to disseminate to all clients on site the following notice ("licensed facility notice"):

"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 abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number]."

Proponents of the bill contend that this notice is needed to ensure that women in California are fully informed of their options and are able to make their own healthcare and pregnancy-related decisions. Opponents of the bill, however, strongly object to this requirement and assert that it unfairly targets operators of CPCs because of their anti-abortion viewpoint, forcing them to disseminate a message with which they do not agree, in violation of free speech protections.

As detailed below, the Committee's analysis of the free speech issues indicates that the licensed facility notice is content-based, and would likely be considered viewpoint-neutral commercial speech that would be subject to intermediate scrutiny. Even if the notice were subjected to strict scrutiny, the notice may very well be held constitutional if a court accepted proponents' argument that the most effective way to ensure that women timely obtain the information about services they need during pregnancy is to require licensed health facilities to provide the notice on site.

A. The Licensed Facility Notice will Likely be Construed as a Content-Based Regulation. Because the licensed facility notice relates to pregnancy-related services, the speech regulated will likely be considered content-based, and not content-neutral. Moreover, any compelled speech regulation is generally analyzed as a content-based restriction. (See Riley, supra, at p. 795.) Accordingly, the level of scrutiny a court would apply depends on whether the notice triggers viewpoint discrimination, or is commercial speech.

B. The Licensed Facility Notice Does Not Create Viewpoint Discrimination, and is Viewpoint Neutral. Viewpoint discrimination occurs when the government not only targets a certain subject matter, but also targets a particular point of view on that specific subject matter. (See Rosenberger, supra, at p. 829.) Here, the government’s compelling interest is consistent with the licensed facility notice, which does not convey a particular viewpoint about the services it mentions. The stated purpose of the bill is to ensure that women who are pregnant are fully notified about the full spectrum of health care services available in the state. The notice in this bill is likely to be construed as viewpoint-neutral because the notice speaks to the entire continuum of pregnancy-related health care services, like family planning services, contraception, prenatal care, and abortion. Moreover, the regulation applies to all primary care clinics whose primary purpose is providing family planning or pregnancy-related services, and provides at least two of the following: ultrasounds, contraceptives, pregnancy testing, advertising, or data collection. This means that the notice requirement will apply to different types of health care facilities represented on the spectrum (as described in the notice).

C. Exemption of Certain Facilities Under this Bill Does Not Create Viewpoint Discrimination. Similar to the disputed exemption in McCullen, discussed above, the exemption provided under this bill does not demonstrate viewpoint discrimination. The first exemption is provided to clinics operated by the federal government, which is aimed at addressing preemption concerns. The second exemption is provided to a licensed primary care clinic that is enrolled as a Medi-Cal provider and enrolled as a provider in the Family Planning, Access, Care, and Treatment Program (Family PACT).

According to the author, a licensed primary care clinic that is both a Medi-Cal provider and a Family PACT provider offers the full continuum of health care services as described in the Notice above (i.e. comprehensive family planning services, contraception, prenatal care, and abortion). Under Medi-Cal, a patient is covered for pregnancy-related services, maternity and new born care, prenatal care, and emergency and abortion services. Under Family PACT, a patient is covered for comprehensive clinical family planning services, including but not limited to methods and services to limit or enhance fertility (including contraceptives); natural family planning; abstinence methods; limited fertility management; preconception counseling; maternal and fetal health counseling; general reproductive health care (including diagnosis and treatment of infections and conditions, including cancer, that threaten reproductive capability); medical family planning treatment; and family planning procedures.

Thus, the entire spectrum of services, as specified in the notice, will be provided by a Medi-Cal and Family PACT provider. Accordingly, there is appropriate justification for those clinics to be exempted from the requirement to provide the licensed facility notice.

D. The Licensed Facility Notice Will Likely be Construed as Commercial or Professional Speech. As previously stated, the speech being regulated is professional speech if “the speaker takes the affairs of a client personally in hand and purports to exercise judgment on behalf of the client in the light of the client's individual needs and circumstances.” (Moore-King v. County of Chesterfield, Va. (4th Cir. 2013) 708 F.3d 560, 569 [citations omitted].)

Under this bill, a licensed facility means a facility licensed under Section 1204, or an intermittent clinic operating under a primary care clinic pursuant to subdivision (h) of Section 1206 of the Health and Safety Code. This class of primary care clinics generally includes a community clinic, a free clinic, a surgical clinic, a chronic dialysis clinic, a rehabilitation clinic, and an alternative birth center (collectively “primary care clinics”).

In order to be licensed as a primary care clinic, an applicant must apply to the California Department of Public Health and comply with a series of licensing requirements to provide care. A clinic must provide “diagnostic, therapeutic, radiological, laboratory and other services for the care and treatment of patients for whom the clinic accepts responsibility.” (22 Cal. Code Regs. Section 75026.) Moreover, “[e]very medical clinic shall have a licensed physician designated as the professional director” and “[a] physician, physician’s assistant, or a registered nurse shall be present whenever medical services are provided.” (22 Cal. Code Regs. Section 75027.)

Given that a primary care clinic accepts to provide treatment for patients whom the clinic accepts responsibility, and provides medically-supervised care, a notice requirement for primary care clinic is likely to be construed a professional speech. (See Moore-King, supra, at p. 569.) Accordingly, a court would likely apply intermediate scrutiny.

E. The Licensed Facility Notice Will Likely Survive Intermediate Scrutiny. Because the licensed family notice will likely be construed as professional speech, a reviewing court will probably subject the notice to intermediate scrutiny. To survive intermediate scrutiny, the law must directly advance a substantial governmental interest. (See Association of National Advertisers, Inc. v. Lungren (9th Cir. 1994) 44 F.3d 726, 729.)

Here, the interest is to ensure that women who are pregnant are fully notified about the continuum of health care options available in the state. (Indeed, public health has always been viewed as a compelling governmental interest.) The government’s interest here in ensuring that pregnant women are informed about their health care options is directly advanced by a notice provided by primary care facilities, especially if the facility does not provide the full spectrum of health care services. Thus, the licensed facility notice will survive intermediate scrutiny.

F. Even if a Court were to Apply Strict Scrutiny, the Licensed Facility Notice Will Likely Pass Constitutional Muster. To survive strict scrutiny, the law must be narrowly tailored to satisfy a compelling government interest. As previously stated, the interest is to ensure that women who are pregnant are fully notified about the continuum of health care options available in the state. The interest is compelling and narrowly tailored because the time-sensitive nature of any pregnancy affects the policy options that this Legislature can enact. As this author has stated, the most effective way to ensure that women obtain information and services they need during pregnancy in a timely way is to require a licensed health care facility to provide the notice.

An alternative, like a statewide campaign, would not achieve the compelling interest because it would not sufficiently provide information to the consumer about the services provided available at a particular primary care facility, especially if that facility does not provide the full spectrum of medical options. (See Evergreen Ass’n, Inc., supra, at p. 247.) Thus, the licensed facility notice will likely pass constitutional muster, whether a court reviews the law under intermediate or strict scrutiny.

III. APPLYING FREE SPEECH ANALYSIS TO THE REQUIRED NOTICE FOR UNLICENSED FACILITIES. The bill requires an unlicensed covered facility, as defined, to disseminate to clients on site the following notice ("unlicensed facility notice"):

"This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services."

Proponents of the bill contend that this notice is needed to ensure that pregnant women in California know when they are getting medical care from licensed professionals. According to the author, the bill is intended to ensure that unlicensed facilities that advertise and provide pregnancy testing and care must advise clients, at the time they are seeking or obtaining care, that these facilities are not licensed to provide medical care.

Most of the opposition letters received by the Committee object to the licensed facility notice as violation of free speech rights, but the letters make no allegation that the unlicensed facility notice is in similar violation of those rights. Some opponents, however, object that this provision requires non-licensed clinics to post language that is untrue because, they contend, many of the non-licensed clinics have licensed medical staff on site as the clinics prepare to obtain their licenses.

As detailed below, the Committee's analysis of the free speech issues indicates that the unlicensed facility notice is content-based and would likely be considered viewpoint-neutral commercial speech. As such, the required notice would be subject to rational basis scrutiny and would likely be found to be permissible under that standard. Even if the notice were subjected to strict scrutiny, the notice may very well be held constitutional in light of two recent court decisions, described below, that upheld similar notices required for unlicensed facilities after applying strict scrutiny.

A. The Unlicensed Facility Notice will be Construed a Content-Based Regulation. Since the unlicensed facility notice relates to a specific subject matter, the notice will be construed as a content-based regulation. Moreover, any compelled speech regulation is generally analyzed as a content-based restriction. (See Riley, supra, at p. 795.) Accordingly, the level of scrutiny a court applied would depend on whether this bill were found to trigger viewpoint discrimination, or to be targeting commercial speech.

B. The Unlicensed Facility Notice is Viewpoint Neutral. As stated above, viewpoint discrimination occurs when the government not only targets a certain subject matter, but also targets a particular point of view taken by speakers on that a specific subject matter. (See Rosenberger, supra, at p. 829.)

Here, the notice required of an unlicensed facility does not take a particular point of view. The notice simply requires an unlicensed facility to state uncontrovertibly that it is not a medical facility (if it is not licensed). Accordingly, the notice is viewpoint neutral.

C. The Unlicensed Facility Notice Will be Likely be Construed as Commercial Speech. As previously mentioned, the line between commercial and noncommercial speech is not always clear. To determine whether the speech that is being regulated is commercial or noncommercial, a reviewing court looks at the Bolger factors: (i) the advertising format of the speech, (ii) the speech’s reference to a specific product, and (iii) the underlying economic motive of the speaker. (Lungren, supra, at p. 728.)

Here, the speech and notice likely meets the Bolger factors. First, the format of the notice is required to be in advertising materials, and onsite in areas where there is an initial contact between the client and the facility. (See American Academy of Pain Management v. Joseph (9th Cir. 2004) 353 F.3d 1099, 1106, finding that “advertising” was sufficient for the first Bolger “format” factor.) Second, the speech here is related to a pregnancy-related health service, which is considered a product. (See Joseph, supra, at p. 1106, finding that “medical services” was a specific product for the second Bolger factor.)

While the third Bolger factor for the unlicensed facilities notice may be a closer question, a court would likely find that the unlicensed facility has an economic motive. If the facility charges a fee, that is generally sufficient to establish an economic motive. However, a facility that does not charge a fee may still be construed as having an economic motive because it attracts clients and patients in order to perform health services, rather than to exchange ideas. (See Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore (4th Cir. 2013) 721 F.3d 264, 286, citing Fargo Women’s Health Organization, Inc. v. Larson (1986) 381 N.W.2d 176, 180-81, “the degree, if any, that monies are received by the [nonprofit] from its clients is not dispositive of the commercial speech issue” [internal citations omitted].)

Accordingly, it seems likely that the speech required under this bill would be construed as commercial speech, and a reviewing court would likely apply rational basis scrutiny. (Zauderer, supra, at p. 638.)

D. The Unlicensed Facility Notice Will Likely Survive Rational Basis Scrutiny. As previously stated, the author has stated that the government’s compelling interest is to ensure that women who are pregnant are fully notified about the continuum of health care services available in the state.

Given that the notice required of unlicensed facilities is about promoting transparency and avoiding consumer confusion, a court is likely to apply rational basis scrutiny. Here, the notice required of unlicensed facilities is reasonably related to the state’s interest in ensuring that pregnant women are fully notified about the continuum of health care services available in the state. The notice is a fact-specific, incontrovertible statement aimed at informing a patient about the kinds of services a facility provides. (See Sorrell, supra, at pp. 113-114.)

Additionally, because the state wants to ensure that a woman knows about all of her health care options, a notice informing the woman about the lack of a health care professional informs her that certain health care services are unavailable. Understanding that certain health care services are not available assists a consumer of health-related services to avoid confusion or deception about the kind of care that an unlicensed facility may provide. (See Zauderer, supra, at p. 638.) Thus, the unlicensed facility notice will likely survive rational basis scrutiny.

E. Even If A Court Were to Apply Strict Scrutiny, The Unlicensed Facility Notice Will Likely Pass Constitutional Muster. Similar notices—like the notice that is required of an unlicensed facility under this bill—were upheld in two Circuit Courts of Appeals that applied strict scrutiny.

In Centro Tepayac v. Montgomery County, the Fourth Circuit reviewed a 2010 resolution passed by the Montgomery County Council that regulated pregnancy service centers. (Centro Tepayac v. Montgomery County. (4th Cir. 2013) 722 F.3d 184, 189.) The Montgomery Resolution required a pregnancy service center that did not have a licensed medical professional on staff to post a sign stating that “the Center does not have a licensed medical professional on staff.” (Id. at p. 189.) The Centro Tepayac, a nonprofit organization that operated a limited pregnancy resource center, challenged the law. The Fourth Circuit upheld the law and the lower court’s application of strict scrutiny. The court found that the government had a compelling interest to ensure that women were able to obtain needed medical care, and that women did not forgo medical treatment. The notice was narrowly tailored because it notified patients “in neutral language [stating] the truth that a licensed medical professional is not on staff, [and the notice] does not require any other specific message.” (Id. at p. 190 [internal quotations omitted.) Accordingly, the Resolution was constitutional.

In Evergreen Ass’n, Inc. v. City of New York, the Second Circuit reviewed a 2011 City of New York ordinance that regulated pregnancy service centers. (Evergreen Ass’n, Inc. v. City of New York (2nd Cir. 2014) 740 F.3d 233, 238.) Among other things, the New York Ordinance required a pregnancy service center to disclose whether the center had “a licensed medical provider on staff who provides or directly supervises the provision of all of the services at such pregnancy service center.” (Ibid.) Evergreen Association, Inc. challenged the law on several arguments, including on First Amendment grounds. Similar to the Fourth Circuit, the Second Circuit applied strict scrutiny to the notice and upheld the law. The court held that “striking down the [disclosure] would deprive the City of its ability to protect the health of its citizens and combat consumer deception in even the most minimal way.” (Id, at p. 247.)

Specifically, the Evergreen court stated that the government had a compelling interest “to ensure that women have prompt access to the type of care they seek” and “to prevent [women] from mistakenly concluding that pregnancy services centers, which look like medical facilities, are medical facilities, whether or not the centers engage in deception.” (Evergreen Ass’n, Inc., supra, at p. 247.) The law was narrowly tailored because alternatives like city-sponsored advertisements and prosecuting fraud, false advertising, or the unauthorized practice of medicine would not achieve the City’s interest. (Ibid.) Specifically, the alternatives would not alert consumers “as to whether a particular pregnancy services center employs a licensed medical provider, because, among other things, this is discrete factual information known only to the particular center.” (Ibid [original emphasis].) Moreover, “[e]nforcement of fraud or other laws occurs only after the fact, at which point the reproductive service sought may be ineffectual or unobtainable.” (Ibid.) Thus, the notice required of unlicensed facilities will likely pass constitutional muster, whether a court reviews the law under rational basis or strict scrutiny.

ENFORCEMENT PROVISIONS. The bill authorizes modest civil penalties to be imposed if, after having been given notice of noncompliance and 30 days in which to correct a violation, the facility still fails to comply with these provisions. This bill also requires the Attorney General (AG) to post and maintain on the DOJ Internet Web site a list of the covered facilities upon which a penalty has been imposed for noncompliance. Because the bill allows an enforcement action against a covered facility to be brought by a city attorney or county counsel, in addition to the AG, the author may wish to consider clarifying how the list of previous violators will be maintained and kept current to reflect actions brought by an entity other than the AG.

ARGUMENTS IN SUPPORT: In support of the bill, NARAL Pro-Choice California writes:

As a national leader for reproductive freedom, the state of California has numerous laws on the books supporting women and providing assistance for low-income residents. However, many women are unaware of the truly comprehensive support the state has to offer. This legislation ensures California women receive the information they need to access affordable health care and make the best decisions regarding family planning.

Distributing a notice of reproductive health services would ensure that women in any reproductive health or pregnancy counseling facility know that California respects their rights and provides assistance. Disclosing the unlicensed status of a facility allows women to make fully informed decisions. AB 775, the Reproductive FACT Act, will help ensure that the intent of California’s strong laws that protect reproductive freedom is fully realized.

In support of the bill, the League of Women Voters of California writes:

AB 775 requires licensed and unlicensed facilities to provide their parents information they need to understand their rights and the full range of medical care available to them so as to make the best decisions regarding family planning. It also ensures that women are informed that the facility they use is a licensed medical facility that provides actual medical services or is an unlicensed facility that cannot provide the full range of services…

[A] woman’s constitutional right of privacy to make reproductive choices and to have access to a basic level of health care includes all aspects of family planning. The right to make reproductive choices is empty of content if a woman lacks the ability to obtain the services she chooses because she lacks information about her rights, the services available, and the ability of the facility she is in to provide them.

ARGUMENTS IN OPPOSITION: The California Catholic Conference (CCC) opposes this bill, stating:

The bill proposes to regulate the state's pregnancy centers, but in actuality is aimed at discriminating against those pregnancy centers that hold a pro-life viewpoint. Such unfair legislation may discourage women from getting the assistance that they need and deserve as well as expose many of these pregnancy centers to needless criminal or civil sanctions for failure to comply. Because we believe all life is sacred, we support programs which offer medical, economic and emotional support for pregnant women and children, so that they can make life-affirming choices.

The Committee has received hundreds of letters expressing opposition to the bill from operators of pregnancy centers and their supporters. For example, Pregnancy Counseling Center writes:

Women are smart and they know that they have options regarding their pregnancy. Not all pregnant women want a referral to a government agency that funds abortions. Pregnant women seek out abortion-alternative organizations because they do not want to go to an abortion-provider to discuss their options.

The National Institute of Family & Life Advocates writes in opposition:

AB 775 basically requires non-profit organizations that lawfully promote a woman’s right to make a fully informed decision about her pregnancy to announce what services they do not provide and force them to refer in violation of their conscience. A law such as this, while targeted at pro-women groups, would set a terrible precedent and its rational could be used against many other forms of speech… There are alternative methods to spread the word about public healthcare programs other than to force one type of organization, targeted for their religious and philosophical beliefs, to advertise them. There are other laws that are in effect, such as laws against fraud and deceptive practices, which are available to remedy a situation where deceptive practices are in fact occurring. Forcing speech is not the solution.

REGISTERED SUPPORT / OPPOSITION:

Support

Black Women for Wellness (co-sponsor)

NARAL Pro Choice California (co-sponsor)

ACT for Women and Girls
American Congress of Obstetricians and Gynecologists

American Nurses Association, California
California Association for Nurse Practitioners
California Council of Churches IMPACT
California Latinas for Reproductive Justice

California Pan-Ethnic Health Network
California Primary Care Association
California Women's Law Center
California Women Lawyers

The Center on Reproductive Rights and Justice
Forward Together

Fresno Barrios Unidos
League of Women Voters of California
Maternal And Child Health Access
National Abortion Federation

National Council of Jewish Women, California
Planned Parenthood Affiliates of California
Religious Coalition for Reproductive Choice, California
Western Methodist Justice Movement
Women's Community Clinic
Women's Health Specialists

Opposition

Alliance Defending Freedom

Birth Choice

California Catholic Conference

California Right to Life Committees, Inc.

Caring for Women Pregnancy Resource Center

Conejo Pregnancy Center

Fallbrook Pregnancy Resource Center

Horizon Pregnancy Clinic

Life Choices

Network Medical Women’s Center

Pacific Justice Institute Center for Public Policy

Pregnancy Care Center

Pregnancy Care Clinic

Pregnancy Counseling Center

Whittier Life Centers, Inc.

Women’s Pregnancy Care Clinic

Hundreds of Individuals

Analysis Prepared by: Eric Dang and Anthony Lew / JUD. / (916) 319-2334

Date of Hearing: April 14, 2015

ASSEMBLY COMMITTEE ON HEALTH

Rob Bonta, Chair

ABPCA Bill Id:AB 775

Author:(Chiu) – As Amended Ver:April 8, 2015

SUBJECT: Reproductive FACT Act.

SUMMARY: Requires licensed clinics that provide family planning or pregnancy-related services to provide a notice to consumers regarding their reproductive rights. Requires unlicensed facilities that provide pregnancy-related services to disseminate and post a notice informing consumers that they are not a licensed medical facility. Specifically, this bill:

1. Enacts the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act).
   
   
   

2. Defines, for purposes of the FACT Act, a licensed covered facility as a licensed, or intermittent, clinic 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, obstetric sonograms, or prenatal care to pregnant women;

   2. The facility provides, or offers counseling about contraception, or contraceptive methods;

   3. The facility offers pregnancy testing or pregnancy diagnosis;

   4. The facility advertises or solicits patrons with offers to provide prenatal sonography, pregnancy tests, or pregnancy options counseling; and,

   5. The facility has staff or volunteers who collect health information from clients.
      
      
      

3. Clarifies that the following types of clinics are not considered covered facilities for the purposes of this bill:
   
   
   

   1. A clinic directly conducted, maintained, or operated by the United States or any of its departments, officers, or agencies; and,

   2. A licensed primary care clinic that is enrolled as a Medi-Cal provider and a provider in the Family Planning, Access, Care, and Treatment Program.
      
      
      

4. Defines, for purposes of the FACT Act, an unlicensed covered facility as a facility that is not licensed by the State of California and does not have a licensed medical provider on staff, whose primary purpose is providing pregnancy-related services and that satisfies two or more of the following:
   
   
   

   1. The facility offers obstetric ultrasounds, obstetric sonograms, or prenatal care to pregnant women;

   2. The facility offers pregnancy testing or pregnancy diagnosis;

   3. The facility advertises or solicits patrons with offers to provide prenatal sonography, pregnancy tests, or pregnancy options counseling; and,

   4. The facility has staff or volunteers who collect health information from clients.
      
      
      

5. Requires licensed covered facilities to disseminate the following notice in English and in minority languages pursuant to the federal Voting Rights Act, that states the following:

"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 abortion, for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number]. "

6. Requires the notice to be posted in a conspicuous place in the licensed clinic, specifies the size of the type on the notice, and requires a printed copy be given directly to the client, either in written or digital form. Allows the notice to be combined with other mandated disclosures.
   
   
   

7. Requires an unlicensed facility to disseminate a notice to clients in English and in minority languages pursuant to the federal Voting Rights Act that states the following:

"This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services."

8. Specifies the size of the notice, the size type the notice is printed in, and that the notice is to be posted conspicuously in the entrance to the unlicensed facility and in at least one other area where clients wait to receive services. Requires that the notice shall be given to clients onsite, and included in any print and digital advertising materials.
   
   
   

9. Establishes civil penalties for failure to comply with these provisions, enforceable by the Attorney General (AG), a city attorney, or county counsel if they have provided the facility with reasonable notice of noncompliance and verified that the violation was not corrected within 30 days from the date of the notice.
   
   
   

10. Specifies that any civil penalties be deposited into the General Fund if an action is brought by the AG, paid to the treasurer of the city if an action is brought by a city attorney, and paid to the county treasurer if an action is brought by a county counsel.
    
    
    

11. Requires the AG to post and maintain of the Department of Justice's (DOJ) Internet Web site a list of the covered facilities upon which a penalty has been imposed.
    
    
    

12. Provides that if any provisions of this bill or its application is held invalid, that invalidity will not affect other provisions or applications that can be given effect without the invalid provision or application.
    
    
    

13. Makes various findings and declarations regarding Californian residents' rights to privacy and access to reproductive health services.

EXISTING LAW:

1. Licenses and regulates clinics, including primary care clinics and specialty clinics such as surgical clinics, by the Department of Public Health (DPH).
   
   
   

2. Provides for exemptions from licensing requirements for certain types of clinics, including federally operated clinics, local government primary care clinics, clinics affiliated with an institution of higher learning, clinics conducted as outpatient departments of hospitals, and community or free clinics. Also provides for exemptions for community or free clinics that are operated on separate premises from the licensed clinic and are only open for limited services of no more than 20 hours a week (also known as intermittent clinics).

3. Authorizes DPH to take various types of enforcement actions against a primary care clinic that has violated state law or regulation, including imposing fines, sanctions, civil or criminal penalties, and suspension or revocation of the clinic's license.
   
   
   

4. Grants a specific right of privacy under the California Constitution and provides that the right to have an abortion may not be infringed upon without a compelling state interest.
   
   
   

5. Requires, under the federal Voting Rights Act, voting materials be translated in localities where there are more than 10,000 or over 5% of the total voting age citizens in a single political subdivision (usually a county, but a township or municipality in some states) who are members of a single minority language group, have depressed literacy rates, and do not speak English very well. The Census Bureau identifies specific language groups for specific jurisdictions.

FISCAL EFFECT: This bill has not been analyzed by a fiscal committee

COMMENTS:

1. PURPOSE OF THIS BILL. According to the author, California has a proud legacy of respecting reproductive freedom and funding forward thinking programs to provide reproductive health assistance to low income women. The author notes that according to the Department of Health Care Services, the Patient Protection and Affordable Care Act expansion has made millions of Californians, 53% of them women, newly eligible for Medi-cal. The author states because pregnancy decisions are time sensitive, California women should receive information about their rights and available services at the sites where they obtain care.
   
   The author contends that, unfortunately, there are nearly 200 licensed and unlicensed clinics known as crisis pregnancy centers (CPCs) in California whose goal is to interfere with women's ability to be fully informed and exercise their reproductive rights, and that CPCs pose as full-service women's health clinics, but aim to discourage and prevent women from seeking abortions. The author concludes that these intentionally deceptive advertising and counseling practices often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.
   
   

2. BACKGROUND.
   
   
   

   1. Crisis Pregnancy Centers. CPCs are facilities, both licensed and unlicensed, which present themselves as comprehensive reproductive health centers, but are commonly affiliated with, or run by organizations whose stated goal is to prevent women from accessing abortions. A 2015 NARAL Pro-Choice America report on CPCs notes that the National Institute of Family and Life Advocates (an organization with over 1,300 CPC affiliates) states on its website that it is on the front line of the cultural battle over abortion, and its vision is to provide [CPCs] with legal resources and counsel, with the aim of developing a network of life-affirming ministries in every community across the nation in order to achieve an abortion-free America. The NARAL report also sent several researchers into CPCs to receive the counseling offered, and they widely reported that they were provided with inaccurate information, including only being given information regarding the risks of abortion, being told that many women commit suicide after having an abortion, and being told abortions can cause breast cancer.
      
      
      

   2. University of California, Hastings College of Law research report. In fall of 2009 the Assembly Business, Professions and Consumer ProtectionCommittee, concerned that CPCs throughout California were disseminating medically inaccurate information about pregnancy options available in the state, requested a report by the University of California, Hastings College of Law regarding CPCs' practices and potential legislative options for regulating them. Completed in December of 2010, "Pregnancy Resource Centers: Ensuring Access and Accuracy of Information," discusses several options for regulation CPCs, ranging from creating new regulations, leveraging existing regulations aimed specifically at medical services, as well as creating a new statute. Because approaches that have treated CPCs and full-service pregnancy centers differently have been challenged as violating the First Amendment, the report concludes that the best approach to a statutory change would regulate all pregnancy centers, not just CPCs, in a uniform manner, which is the approach that this bill adopts.
      
      
      

   3. Legal challenges to CPC regulation. In November 2014, the Supreme Court rejected an appeal from several CPCs over a 2011 New York City law that requires CPCs to inform clients whether or not they have medical personnel on site. New York City officials argued that the law is meant to protect consumers from false advertising.
      
      In February of this year, a federal judge upheld the City of San Francisco's regulation of CPCs, which prohibits clinics from engaging in false or misleading advertising. The law allows a judge to order clinics to post notices saying whether they offer abortions or abortion referrals. The ordinance was challenged by First Resort, a nonprofit clinic owner, as a violation of free speech. First Resort's print and online advertisements stated that the clinic offers "abortion information, resources and compassionate support for women facing the crucial decisions that surround unintended pregnancies and are considering abortion." In First Resort, Inc., v. Board of Supervisors of the City and County of San Francisco, the judges' ruling said the San Francisco law "only restricts false and misleading commercial speech, which is not protected by the First Amendment."
      
      
      

3. SUPPORT. Black Women for Wellness and NARAL Pro-Choice, California the co-sponsors of this bill as well as numerous other organizations, including, California Council of Churches IMPACT, California Latinas for Reproductive Justice, Maternal and Child Health Access, and Planned Parenthood, California, support this bill because it requires unlicensed facilities that provide pregnancy-related care to inform clients that they are not a licensed medical facility and do not have a licensed provider on staff, enabling women to seek the care they wish to obtain and providing context for counseling given at these unlicensed facilities. They also state that distributing a notice of reproductive health services would ensure that women in any reproductive health or pregnancy counseling facility know that California respects their rights and provides assistance.
   
   The California Primary Care Association (CPCA) states this bill will protect patients by allowing them to fully understand their rights when it comes to their reproductive freedom and to not be deceived by organizations whose sole purpose is to provide them with a biased view that does not allow them to make their own informed choice. CPCA notes that many of their community clinics and health centers grew out of the women's movement and their members believe a women's right to choose is a fundamental health right that must be protected.
   
   The American Nurses Association, California (ANA\C) writes that all California residents should have access to reproductive health services, and more than 700,000 California women become pregnant every year, approximately half of them unintentionally. ANA\C states thousands of women do not know the legal options they have, or the funding resources available to them, and this bill will help ensure that pregnant women receive the information they need to make an informed decision.
   
   Forward Together supports this bill, opining; women in California face a threat from manipulative crisis pregnancy centers which pose as comprehensive reproductive health centers, but are, in fact, anti-choice organizations that target women with the goal of blocking them from considering abortion as an option and using proven contraceptive methods. Forward Together contends that CPCs use false and misleading advertising to appeal to women, who think they may be pregnant and are looking for comprehensive reproductive health care, and then manipulate and shame these women by peddling medically inaccurate information about abortion and contraception.
   
   
   

4. OPPOSITION. The California Catholic Conference (CCC) opposes this bill stating, on its surface, the bill proposes to regulate the state's pregnancy centers, but in actuality is aimed at discriminating against those pregnancy centers that hold a pro-life viewpoint. CCC contents that such unfair legislation may discourage women from getting the assistance that they need and deserve as well as expose many of these pregnancy centers to needless criminal or civil sanctions for failure to comply. CCC concludes that because they believe all life is sacred, they support programs which offer medical, economic and emotional support for pregnant women and children, so that they can make life-affirming choices.
   
   The California Right to Life Committee, Inc. (CRLC) opposes this bill and states that, if enacted, it could set a precedent for many other businesses that are not like or appreciated by one group in society which could bring a law suit against another business, company, or agency. CRLC asks us to consider car dealerships: what if they were to be seen as anti-environmental with misleading advertising, selling too many cars, and making citizens not anxious to take high speed rail? CRLC asks; would it not be possible that the California High Speed Rail Authority require that car dealerships advertise High Speed Rail locations, schedules, and fees? CRLC argues the provisions of this bill would not be best practice for the car industry any more that it would be for pro-life pregnancy centers to have to promote services which they consider morally reprehensible.
   
   
   

5. DOUBLE REFERRAL. This bill is double referred; upon passage in this committee, this bill will be referred to the Assembly Judiciary Committee.
   
   
   

6. SUGGESTED AMENDMENT. As noted in existing law above, the federal Voting Act applies to political subdivisions (usually a county, but sometimes a township or municipality) and refers to populations that, "don't speak English very well." Because the covered facilities subject to the provisions of this bill are not likely to be familiar with federal Voting Act requirements, and state law already contains language that provides more specific guidance on which languages health related information should be translated into in each county, the Committee may wish to amend the bill to strike the references to federal law and instead require covered facilities to translate the notices required by this bill into the primary threshold languages for Medi-Cal beneficiaries as determined by the Department of Health Care Services for the county in which the covered facility is located.
   
   
   

7. POLICY COMMENT. This bill requires the AG to post and maintain on the DOJ Internet Web site a list of the covered facilities upon which a penalty has been imposed for noncompliance. Because an action against a covered facility may be brought by a city attorney or county counsel, as well as the AG, should this bill pass this committee, the author may wish to consider working with the Judiciary Committee to clarify how the AG will know a covered facility was cited when the action was brought by an agency other than the DOJ.

REGISTERED SUPPORT / OPPOSITION:

Support
Black Women for Wellness (cosponsor)
NARAL Pro-Choice California (cosponsor)
Act for Women and Girls
American Congress of Obstetricians and Gynecologists
California Association for Nurse Practitioners
California Council of Churches IMPACT
California Latinas for Reproductive Justice
California Primary Care Association
California Women's Law Center
California Women Lawyers
Forward Together
League of Women Voters of California
Maternal And Child Health Access
National Abortion Federation
Planned Parenthood Affiliates of California
Religious Coalition for Reproductive Choice, California
Western Methodist Justice Movement
Women's Community Clinic
Women's Health Specialists

Opposition

Sacramento Life Center
The California Catholic Conference
The California Right to Life Committee, Inc.

Analysis Prepared by: Lara Flynn / HEALTH / (916) 319-2097