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Government, Constitutional Law, California Supreme Court, Administrative/Regulatory

Dec. 15, 2017

Justices should uphold state Reproductive FACT Act

Imagine that you're one of the more than 350,000 women in California who becomes unexpectedly pregnant every year. Maybe you feel ready to have a child and are focused on having a healthy pregnancy. Maybe you want to consider all the options, and understand the resources that are available to you.

OCTOBER 2017 TERM

Imagine that you're one of the more than 350,000 women in California who becomes unexpectedly pregnant every year. Maybe you feel ready to have a child and are focused on having a healthy pregnancy. Maybe you decide now is not the right time and want to end the pregnancy. Or maybe you want to consider all the options, and understand the resources that are available to you.

But what are those options? Figuring that out is complicated for women who visit a type of facility that has become increasingly prevalent in California and across the country. These facilities present themselves to the public as reproductive health care providers. They advertise pregnancy-related services. They may be licensed under state health care law, when licensing is required. But unlike the full-service reproductive health clinics that they resemble, these facilities provide only "pro-life" information and options to patients. These include pregnancy tests, ultrasounds, medical evaluations and information on prenatal care and development. They may also include prenatal vitamins, maternity clothes, baby supplies and pregnancy support groups. They do not include services or information about abortion or forms of contraception that staff oppose on religious or moral grounds.

Women who call or visit such facilities have no way to know what services they do and don't provide. Instead of informing women about the full range of healthcare options, staffers provide prospective patients an ideologically-edited spectrum that favors childbirth -- even when women come in to request abortion services or related information. As a result, women face delays in obtaining the care they seek. And the problem extends beyond access to abortion. Women searching for prenatal care may also face delays when clinics try to steer them toward programs that fail to address their medical needs.

The state of California responded to this problem by passing the Reproductive FACT (Freedom, Accountability, Comprehensive Care, and Transparency) Act in 2015. The act requires covered licensed medical facilities to provide a notice or post a sign stating 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]." Unlicensed facilities must provide notice to patients that they are unlicensed and do not have licensed medical personnel offering services.

But a number of California facilities are challenging the law. In a major case pending before the U.S. Supreme Court this term, these facilities are claiming that requiring them to disclose information about access to reproductive health services would violate their First Amendment free speech rights. NIFLA v. Becerra, 16-1140. Striking down the disclosure requirements on this ground would have the effect of creating a broad exemption from a public health regulation for facilities pushing an ideological agenda based on their belief that abortion and some forms of contraception are sinful.

Contrary to the plaintiff's claims, the public notice requirements do not favor an ideological agenda of their own. They are neutral regulations on professional and commercial activity that simply require providers to notify patients about types of treatment that may be available and licensing status in order to ensure women are informed about their options.

States indisputably have the power and responsibility to regulate professional and commercial services in order to genuinely promote public health. This would justify the requirements even if pregnancy clinics did not actively seek to mislead patients about the nature and scope of their services -- and compelling evidence in the record shows that they do, along with pregnancy clinics across the country that are involved in other lawsuits (including one pending in the 4th U.S. Circuit Court of Appeals in which the Center for Reproductive Rights and the city of Baltimore are defending a similar signage requirement, Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore). Regulations often require providers to disclose truthful, neutral information that educates patients about their options, in the abortion context and beyond. The notice requirements are no different from myriad other mandatory disclosures that help health care consumers avoid deception.

The facilities are correct that free speech is a foundational right that protects speakers against becoming mouthpieces for government-sanctioned ideology. But that right does not exempt professionals from complying with public health regulations that protect patients' right to true and accurate information about their options. The Supreme Court should side with disclosure, and reject special rules for clinics that place their anti-abortion agenda above women's health.

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Ben Armistead

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