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Judge Won’t Block Info Law for Abortion Foes

SAN DIEGO (CN) - A San Diego federal judge has refused to give abortion foes a pass in implementing California's new women's health information law while their fight against the law proceeds.

National Institute of Family and Life Advocates, Pregnancy Care Center and Fallbrook Pregnancy Resource Center sought to duck having to comply with the Reproductive FACT Act, which took effect on Jan. 1, claiming the law infringes on their free speech and freedom of religion rights.

The clinics asked U.S. District Judge John Houston to restrain California Attorney General Kamala Harris, San Diego County Counsel Thomas Montgomery, El Cajon City Attorney Morgan Foley and Gov. Jerry Brown from enforcing the act.

The FACT Act, which stands for Freedom, Accountability, Comprehensive Care and Transparency, was signed into law by Brown last October. It requires a licensed health center to disseminate information to women informing them of state programs that provide immediate free or low-cost family planning services, prenatal care and abortions.

Additionally, the law requires unlicensed centers to indicate they are not, in fact, licensed as medical facilities from California.

The information can be distributed one of three ways: through posting it at the clinic, printing and handing out information to patients, or by posting the information online.

The law authorizes the state attorney general, county counsel or city attorney to sue facilities that fail to comply. Health centers cannot be criminally prosecuted for violating the act, however, and are only subject to civil penalties.

Violators will be fined $500 on the first offense and $1,000 thereafter.

Other clinics that have sued to block the law in Northern California were unsuccessful in Federal Court, and appeals to the Ninth Circuit were rejected.

In the 19-page order, Houston noted the state argued the abortion foes' claims are not ripe for review because their complaint "fails to allege a genuine threat of imminent prosecution" and also fails to identify a "concrete plan" to violate the act.

Houston disagreed, finding the centers do have a concrete plan to violate the act.

There is a 30-day period between a warning and fine for violating the act. While the pregnancy centers acknowledge they cannot be fined until they receive a warning, they still sought court-ordered protection so that "a plaintiff need not await prosecution to seek preventative relief."

The county argued the pregnancy centers cannot suffer any loss of constitutional rights because they do not plan to comply with the act and cannot be harmed by the mandatory disclosures they do not make, according to the order.

The state also argued there is no credible threat of injury because if there was, the clinics would know who specifically to sue rather than "casting such a wide net to catch all potential defendants."

The city and county both sought dismissal on grounds that neither entity created the state-mandated FACT Act. In his order, Houston agreed with the city's argument that a challenge cannot be brought against it since the state drafted and enacted the law.

As for the state's contention that the act does not prevent the clinics from discussing an anti-abortion view point but rather requires them to provide a full range of other options and information to the women they serve, Houston agreed.

"The act does not ban speech or otherwise prohibit plaintiffs from discussing their message with patients," he wrote. "Instead, the act requires medical providers to advise their patients of various types of treatment available so patients are fully informed when making decisions regarding their pregnancies. The act permits discussion about treatment and expressing opinions including their message regarding abortion."

He added, "The state clearly has a legitimate interest in ensuring pregnant women are fully advised of their rights and treatment options when making reproductive health care decisions and the required disclosure is undeniably related to that interest."

Houston also said the act is neutral, not specifically directed at religious-based clinics and generally applicable to all operations providing reproductive health care, so the clinics had little chance of succeeding on their free exercise of religion claims.

And since none of the clinics have been fined or even received warnings about not complying with the act thus far, they can't show irreparable harm required to block the law

Rachele Huennekens, press secretary for Attorney General Harris, said they are happy with Houston's decision.

"We are pleased that the courts have thus far upheld the California Reproductive FACT Act and its important goals of protecting women's health and providing women with time-sensitive information about medical services available to them," Huennekens said.

"Attorney General Harris will continue to defend the law through each phase of litigation."

Email and phone requests to the Alliance Defending Freedom, the attorneys representing the pregnancy centers, were not returned.

Officials for El Cajon and San Diego County did not return phone and email requests for comment.

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