Pregnancy-Related Clinics May Be Required To Provide Notice About Family Planning

In an opinion published this morning in National Institute of Family and Life Advocates v. Harris (“NIFL“), the Ninth Circuit has held that California may require licensed pregnancy-related clinics to provide patients with notice about the existence of publicly-funded family-planning services without violating the First Amendment. California may also require unlicensed clinics to provide notice stating that they are not licensed.

This case may be of interest to IMLA members, particularly as the opinion notes that a city attorney may be a proper defendant in an action challenging a state-wide statute that gives a city attorney power to enforce the statute. In NIFL, three religiously-affiliated non-profits operating “pregnancy centers,” some licensed and some not, challenged California’s Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act. The Act requires licensed pregnancy-related clinics to provide notice to patients stating publicly-funded family-planning services are available, including contraception and abortion.  The Act also requires that unlicensed clinics provide notice stating they are not licensed by the State of California. Plaintiffs, who strongly oppose abortion, alleged the Act violated their fundamental rights, including their First Amendment right to free speech and free exercise of religion.

The action was brought against the California Attorney General, the Governor of California, County Counsel for San Diego County, and the City Attorney of El Cajon. It sought a preliminary injunction to enjoin enforcement of the Act, which was denied by the district court.

In upholding the district court’s decision to deny injunctive relief, the Ninth Circuit found the pre-enforcement challenge to the Act to be ripe for review, but rejected the Plaintiffs’ contention that the Act infringed on their rights.

The Court rejected Plaintiffs’ assertion that the Act was subject to strict-scrutiny review or that it engaged in viewpoint discrimination. Instead, the Court explained that the Act applied equally to all viewpoints and that it regulated professional speech, which was subject to only intermediate-level scrutiny. It found the Act survived intermediate scrutiny with regard to requirements imposed on licensed facilities, and that the Act could survive any level of scrutiny as applied to unlicensed facilities. The Court also found the act was facially and operationally neutral in relation to The Free Exercise Clause, and subject to rational basis review which it survived.

As an aside, the Court found the district court engaged in harmless error when it dismissed the City Attorney of El Cajon as an improper defendant. The Court explained that the Act granted the City Attorney enforcement power, and as such made the City Attorney a proper defendant in the action.