Nonprofit medical clinics that exist to provide life-affirming alternatives to abortion in the state of California will be forced to promote abortion or face severe financial consequences, after the 9th Circuit Court of Appeals upheld the state’s so-called “Reproductive FACT Act” Friday.
Signed into law Oct. 9, 2015 by Gov. Jerry Brown, the act went into effect Jan. 1, 2016, but has been largely unenforced while municipalities waited out a series of lawsuits challenging the law’s alleged infringement on free speech rights guaranteed by the Constitution’s First Amendment. This is the fifth time a challenge has been turned away by the courts, starting last December.
The law specifies that 75 pro-life pregnancy centers offering ultrasounds—all of which are state-licensed entities that operate completely free of taxpayer funds—post or disseminate a state-mandated disclaimer notifying women in unexpected pregnancies of state-covered abortions and contraception offered through Medi-Cal.
Most urgently, the clinics are required to violate their deeply held religious beliefs by giving their patients the phone number of a county social services agency where they can obtain an abortion—a requirement the centers say amounts to an abortion referral.
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Meanwhile, as many as 100 community-funded pregnancy centers that do not offer free ultrasound services will be compelled to post and disseminate a statement notifying clients and even website visitors that they do not offer medical services—a stipulation similar to a 2009 Baltimore law that was struck down as unconstitutional.
So far, the only known instances of the law’s enforcement have occurred in Los Angeles, where city attorney Mike Feuer has leveraged an obscure law that mandates current signage for local business to force pregnancy medical clinics to comply.
“It’s bad enough if the government tells you what you can’t say, but a law that tells you what you must say—under threat of severe punishment—is even more unjust and dangerous,” Matt Bowman, senior counsel for Alliance Defending Freedom, which argued the case before the 9th Circuit Court of Appeals via National Institute of Family and Life Advocates v. Harris this June and successfully defended nonprofit pregnancy help organizations in Baltimore, as well as Montgomery County (Md.), Austin (Texas), and New York City.
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Bowman had expressed hope for the California law to be overturned after a summary judgment effectively spelled the end of Baltimore’s attempt to force pregnancy centers in its city to post signage in late September.
A similar law is on the books in Illinois, where it is slated to go into effect Jan. 1, 2017. In the case of the Illinois law, pro-life medical professionals of every stripe will be required not only to counsel as to the “benefits” of abortion, but be prepared to provide each client with an updated list of abortion providers.
Heartbeat International, a network of 2,000 pregnancy help locations, has affiliates in both California and Illinois, the latter of which president Jor-El Godsey has urged to refuse to comply with the state’s demands.
In California, where the state law requires pregnancy clinics to refer to the county social services agency rather than directly to an abortion provider, there is slightly more room for pregnancy help organizations to comply with the law. Several local pro-life efforts have said they will refuse to post the signage, despite pressure from the state. The penalty for refusing to comply with the law is $500 for the first offense, and $1,000 per subsequent offense.
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Regardless of how each local organization plans to move forward in California, the intent of chilling free speech and free exercise of religion is just as blatant as it is in Illinois, says Godsey.
“It is a devastating reality that lawmakers in California are so beholden to the abortion industry they would be willing to trample on the constitutional rights of their own citizens to promote a culture of death over a culture of choice and life,” Godsey said. “The refusal of the 9th Circuit Court of Appeals to overturn this wicked law sets a dangerous precedent for anyone who would speak an unpopular message in our society.”
Thomas Glessner, who serves as president of the Institute for Family and Life Advocates (NIFLA), the named plaintiff in the lawsuit against the state’s attorney general, Kamala Harris, said that even in spite of the loss in the 9th Circuit, legal remedies still exist to keep the state from imposing its will on pro-life centers.
“It is unfortunate, but not surprising, that the liberal Ninth Circuit Court three-judge panel upheld California's violation of federal law, the U.S. Constitution, and human rights," Glessner said. "The 'Reproductive FACT Act' forces pregnancy resource centers and medical clinics to violate consciences, free speech, and religious beliefs. This violation of the foundational roots of the American Republic will not stand.
"This battle is far from over."
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