SAN DIEGO (CN) — A federal judge advanced a challenge by anti-abortion centers to the constitutionality of a California law that requires state-licensed health centers to tell patients about state-run free or low-cost health care and family planning services, including abortion.
The National Institute of Family and Life Advocates et al. sued California and San Diego County in 2015, challenging the constitutionality of Reproductive FACT Act — the Freedom, Accountability, Comprehensive Care and Transparency Act — took effect Jan.1, 2016.
The law also requires unlicensed centers to publicize that they are not licensed as medical facilities in California.
Facilities that fail to comply with the act can be fined $500 for the first offense and $1,000 for each subsequent offense. A warning notice must be issued, giving the health care facilities 30 days to correct the violation before the civil penalty can be charged.
The health centers, which encourage women to consult religion in making family planning decisions, sought an injunction in January 2016, to restrain state and county officials from enforcing the act and its fines while their civil case was pending.
U.S. District Judge John Houston refused to issue an injunction and the health centers appealed to the Ninth Circuit, which affirmed Houston’s refusal to restrain state and county officials from enforcing the noticing requirements.
On appeal again, Houston ruled on Sept. 29 that the case should not be dismissed based on the Ninth Circuit’s finding that the claims are “constitutionally and prudently ripe.”
The state argued that the claims were not ripe for review because the health centers had requested the injunction prematurely, indicating that they planned to violate the noticing requirements and would therefore be subject to the civil penalties.
Houston cited the Ninth Circuit’s finding that the pre-enforcement challenge was appropriate because the health centers made a “pledge of disobedience” not to comply with the noticing requirements and the attorney general had not indicated the act would not be enforced.
“The panel noted that pre-enforcement challenges have long been recognized, a lack of enforcement history does not compel a lack of genuine threat of imminent prosecution, and the parties face immediate and significant hardship as ‘appellants must routinely choose between holding fast to their firmly held beliefs about abortion or complying with the act,’” Houston wrote in finding the health centers have standing to pursue their claims.
It was not clear Monday whether the San Diego County health centers had been fined for violating the FACT Act. Requests for comment by telephone and email to attorney Kevin Theriot with the Alliance Defending Freedom and Attorney General Xavier Becerra’s office were not immediately returned.
Women’s rights advocates have asked state officials to enforce the act, gathering more than 25,000 signatures asking counties to make health centers comply with the law.
Humboldt County and the City of Eureka were dropped from a similar lawsuit after agreeing not to enforce the FACT Act. They said the state law should be enforced by the attorney general, not by local officials.
Houston also granted Gov. Jerry Brown immunity, as he has “no connection” with enforcement of the act: Only the state attorney general, city attorneys or county counsel can order civil penalties.
El Cajon’s City Attorney Morgan Foley argued that he too should be granted immunity, but Houston declined, finding that even though the city attorney did not draft or enact the FACT Act, he has the power to enforce it and issue civil penalties.
The plaintiffs have appealed to the U.S. Supreme Court, which has set Friday for a conference on whether to accept it.
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