Case No. 16-1140 | 9th Cir.
California’s Reproductive FACT (Freedom, Accountability, Comprehensive Care, and Transparency) Act requires a “licensed covered facility” to provide a notice to clients about free or low-cost pregnancy-related services that are offered through the State’s public programs. Cal. Health & Safety Code § 123472(a)(1) (West 2018). The Act also requires an “unlicensed covered facility” to provide a notice to clients indicating that it is not a medical facility licensed by the State of California. Health & Safety § 123472(b)(1).
Petitioners claim that California’s FACT Act notice requirement violates the Free Speech Clause of the First Amendment. Petitioners also claim that unlicensed covered facilities are impermissibly required to notify clients about California’s public programs that provide pregnancy-related services, including contraception and abortion—services that conflict with Petitioners’ pro-life beliefs and ideology. Petitioners sought a preliminary injunction to bar enforcement of the Act as violative of the First Amendment. The district court denied the injunction.
The specific notice at issue for a “licensed covered facility” states: “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].” Health & Safety § 123472(a)(1).
There is a separate notice requirement for an “unlicensed covered facility.” These facilities must provide a notice stating: “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.” Health & Safety § 123472(b)(1).
In affirming the district court’s decision, the Ninth Circuit ruled that the Act is subject only to intermediate scrutiny because it regulates professional speech to clients in a private setting. The Ninth Circuit ruled that the Act neither regulates professional conduct, which would require a rational basis test, nor regulates a professional’s public dialogue, which would require strict scrutiny. Instead, the Court ruled that the Act regulates professional speech to clients in a private setting—something in between professional conduct and public dialogue—and determined that intermediate scrutiny should be applied.
Petitioners contend that the Ninth Circuit’s application of intermediate scrutiny was in error because the notice requirements are viewpoint- and content-based. Petitioners argue that other circuit courts and the Supreme Court have established that viewpoint- or content-based attempts to limit speech are subject to strict scrutiny. Petitioners further claim that strict scrutiny applies to professional speech, arguing that the Supreme Court applied strict scrutiny to professional speech with regard to legal services in both In re Primus, 436 U.S. 412 (1978) and NAACP v. Button, 371 U.S. 415 (1963). Respondents claim that intermediate scrutiny applies because the Act merely imposes notice requirements on professional speech.