Case 1:17-cv-00326-DKW-KSC Document 26 Filed 09/01/17 Page 1 of 45

DOUGLAS S. CHIN
Attorney General of Hawaiʻi

6465

CARON M. INAGAKI
CLYDE J. WADSWORTH
KIMBERLY T. GUIDRY
SKYLER G. CRUZ
KALIKOʻONALANI D. FERNANDES

3835
8495
7813
9551
9964

PageID #: 161

Deputy Attorneys General
Department of the Attorney
General, State of Hawaiʻi
425 Queen Street
Honolulu, Hawaiʻi 96813
Telephone: (808) 586-1494
Facsimile: (808) 586-1369
E-Mail: Skyler.G.Cruz@hawaii.gov
Attorneys for Defendants
DOUGLAS S. CHIN and DAVID IGE
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAIʻI
CALVARY CHAPEL PEARL
HARBOR, d/b/a A PLACE FOR
WOMEN IN WAIPIO, a Hawaiʻi
Corporation; NATIONAL
INSTITUTE OF FAMILY AND LIFE
ADVOCATES d/b/a NIFLA, a
Virginia corporation,
Plaintiffs,
v.

CIVIL NO. 17-00326 DKW-KSC
DEFENDANTS DOUGLAS S. CHIN
AND DAVID IGE’S MEMORANDUM
IN OPPOSITION TO PLAINTIFFS’
MOTION FOR PRELIMINARY
INJUNCTION, FILED JULY 12, 2017;
DECLARATION OF SKYLER G.
CRUZ; EXHIBITS “A” –“F”;
CERTIFICATE OF SERVICE
(ECF NO. 6)
(caption continued on next page)

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DOUGLAS S. CHIN, in his official
capacity as Attorney General for the
State of Hawaiʻi; DAVID IGE, in his
official capacity as Governor of the
State of Hawaiʻi,
Defendants.

DEFENDANTS DOUGLAS S. CHIN AND DAVID IGE’S
MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION
FOR PRELIMINARY INJUNCTION, FILED JULY 12, 2017

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TABLE OF CONTENTS
I.

INTRODUCTION ...........................................................................................1

II.

BACKGROUND .............................................................................................3
A.

The Legislative History of the Act........................................................3

B.

The Legislature’s Findings....................................................................4

C.

The Act’s Requirements........................................................................5

D.

The California FACT Act and the Ninth Circuit’s
Decision in NIFLA.................................................................................8

III.

LEGAL STANDARD ...................................................................................11

IV.

ARGUMENT.................................................................................................12
A.

NIFLA v. Harris Controls this Case ....................................................12
1.

The Act’s Private Right of Action is Irrelevant to Plaintiffs’ First
Amendment Claims........................................................................14

2.

Calvary Chapel’s Status as a Church Does Not Change the
Free Exercise Analysis...................................................................15

3.

California’s Licensing Scheme Does Not Affect NIFLA’s
Applicability to this Case ...............................................................18

4.

The Pending Certiorari Petition in NIFLA is Irrelevant ................19

B.

Plaintiffs Cannot Demonstrate a Likelihood of Success on the
Merits of their First Amendment Free Speech Claim .........................20
1.

Strict Scrutiny Does Not Apply .....................................................20

i

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2.

The Act Regulates Professional Speech Subject to
Intermediate Scrutiny .....................................................................23

3.

The Act Survives Intermediate Scrutiny........................................27

C.

D.
V.

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Plaintiffs Cannot Demonstrate a Likelihood of Success on the
Merits of their First Amendment Free Exercise Claims .....................30
1.

Neutrality........................................................................................31

2.

General Applicability .....................................................................32

3.

Rational Basis Review ...................................................................33
Plaintiffs Cannot Satisfy the Remaining Preliminary Injunction
Factors .................................................................................................33

CONCLUSION..............................................................................................36

ii

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TABLE OF AUTHORITIES
CASES
A Woman’s Friend Pregnancy Res. Clinic v. Harris,
153 F. Supp. 3d 1168 (E.D. Cal. 2015) ............................................ 22, 34, 35
Alliance for the Wild Rockies v. Cottrell,
632 F.3d 1127 (9th Cir. 2011) .......................................................................11
Am. Acad. of Pain Mgmt. v. Joseph,
353 F.3d 1099 (9th Cir. 2004) .......................................................................29
Austin Lifecare, Inc. v. City of Austin,
Civ. No. 1:11-cv-00875-LY ECF No. 146 (W.D. Tex. June 23, 2014) .................30
Blaisdell v. Dep’t of Pub. Safety,
No. CIV. 14-00433 JMS, 2014 WL 5581032
(D. Haw. Oct. 31, 2014) ................................................................................12
Centro Tepeyac v. Montgomery County,
5 F.Supp.3d 745 (D. Md. 2014).....................................................................30
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520 (1993)................................................................................ 31, 32
Civil Liberties for Urban Believers v. City of Chicago,
342 F.3d 752 (7th Cir. 2003) .........................................................................15
Cornerstone Bible Church v. City of Hastings,
948 F.2d 464 (8th Cir. 1991 ................................................................... 15, 16
Earth Island Inst. v. Carlton,
626 F.3d 462 (9th Cir. 2010) .........................................................................11
Employment Division, Department of Human Resources of Oregon v. Smith,
494 U.S. 872 (1990).................................................. 10, 15, 16, 17, 30, 31, 33
Evergreen Ass’n, Inc. v. City of New York,
740 F.3d 233 (2nd Cir. 2014) ........................................................................30

iii

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Grace United Methodist Church v. City of Cheyenne,
451 F.3d 643 (10th Cir. 2006) ................................................................ 16, 33
Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v.
Mayor and City of Baltimore,
Civ. No. 1:10-cv-00760-MJG ECF No. 118 (D. Md. Oct. 4, 2016) .............30
Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC,
565 U.S. 171 (2012)................................................................................ 16, 17
JHP Pharm. LLC v. Hospira, Inc.,
No. CV-13-7460-DDP (EX), 2014 WL 12588690
(C.D. Cal. Feb. 10, 2014) ..............................................................................19
Lowe v. S.E.C., 472 U.S. 181 (1985) .......................................................................25
Madsen v. Women’s Health Ctr., Inc.,
512 U.S. 753 (1994).......................................................................................28
Munaf v. Geren,
553 U.S. 674 (2008).......................................................................................11
National Institute of Family and Life Advocates v. Harris,
2016 WL 3627327 (S.D. Cal., Feb. 9, 2016).................................................17
National Institute of Family and Life Advocates v. Harris,
839 F.3d 823 (9th Cir. 2016) ............................... 2, 3, 8, 9, 10, 11, 12, 13, 14,
15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34
Pickup v. Brown,
740 F.3d 1208 (9th Cir. 2014) .......................................................................23
Reed v. Town of Gilbert, Ariz.,
135 S. Ct. 2218 (2015)............................................................................ 20, 21
Retail Digital Network, LLC v. Appelsmith,
810 F.3d 638 (9th Cir. 2016) .........................................................................28
San Jose Christian Coll. v. City of Morgan Hill,
360 F.3d 1024 (9th Cir. 2004) .......................................................................33

iv

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Sorrell v. IMS Health Inc.,
564 U.S. 552 (2011).......................................................................................27
Stormans, Inc. v. Wiesman,
794 F.3d 1064 (9th Cir. 2015) .............................................. 15, 30, 31, 32, 33
The Lands Council v. McNair,
537 F.3d 981 (9th Cir. 2008) .........................................................................11
United States v. Lee,
455 U.S. 252 (1982)................................................................................ 15, 30
United States v. Playboy Entm’t,
529 U.S. 803, 823 (2000) ..............................................................................22
United States v. Swisher,
811 F.3d 299 (9th Cir. 2016 ..........................................................................20
Winter v. Natural Resources Defense Council, Inc.,
555 U.S. 7 (2008)........................................................................ 10, 11, 33, 34
HAWAIʻI STATUTES
S.B. 501, S.D. 1, 29th Leg., Reg. Sess. (2017)........................................ 1, 2, 4, 5, 6,
7, 8, 9, 12, 13, 14, 22, 28, 29, 33
S.B. 501, 29th Leg., Reg. Sess. (2017) ......................................................................3
CALIFORNIA STATUTES
California Assembly Bill 775 (2015)................................................. 8, 9, 12, 14, 17,
19, 20, 21, 28, 30, 31, 32
LEGISLATIVE HISTORY RE: S.B. 501, S.D. 1, 29th Leg., Reg. Sess. (2017)
Conf. Comm. Rep. No. 156 (2017)............................................................................4
Senate Stand. Comm. Rep. No. 907 (2017)...............................................................4

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TREATISES
11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948
(2d ed. 1995)..................................................................................................11

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DEFENDANTS DOUGLAS S. CHIN AND DAVID IGE’S
MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION
FOR PRELIMINARY INJUNCTION, FILED JULY 12, 2017
Defendants DOUGLAS S. CHIN and DAVID IGE (collectively,
“Defendants”), by and through their attorneys, submit this Memorandum in
Opposition to Plaintiffs’ Motion for Preliminary Injunction, filed July 12, 2017.
I.

INTRODUCTION
The State of Hawaiʻi has a substantial interest in the health of its citizens.

This includes ensuring that “women in Hawaiʻi are able to make personal
reproductive health decisions with full and accurate information regarding their
rights to access the full range of health care services that are available.” See
Exhibit “A,” S.B. 501, S.D. 1, 29th Leg., Reg. Sess. (2017) (“S.B. 501”). The
Legislature has found that “[m]any women in Hawaiʻi . . . remain unaware of the
public programs available to provide them with contraception, health education
and counseling, family planning, prenatal care, pregnancy-related, and birth-related
services.” Id. To address this concern, S.B. 501 (the “Act”) was enacted into law.
It requires “limited service pregnancy centers,” as defined in the Act, to
disseminate a written notice to clients or patients informing them that Hawai‘i has
public programs that provide immediate free or low-cost access to comprehensive
family planning services.

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On July 12, 2017, Plaintiffs CALVARY CHAPEL PEARL HARBOR, d/b/a
A PLACE FOR WOMEN IN WAIPIO (“Calvary Chapel”) and NATIONAL
INSTITUTE OF FAMILY AND LIFE ADVOCATES d/b/a NIFLA (“NIFLA”)
(collectively, “Plaintiffs”) filed this lawsuit challenging the constitutionality of the
Act based, inter alia, on alleged violations of their First Amendment rights to free
speech and free exercise of religion. On the same date, Plaintiffs filed a Motion for
Preliminary Injunction (the “Motion”), seeking to enjoin enforcement of the Act
during this litigation. See ECF Nos. 6 & 8.1
Based on binding Ninth Circuit precedent, Plaintiffs’ Motion must be
denied.

In a case brought by NIFLA and other plaintiffs challenging the

constitutionality of a California act requiring a nearly identical notice, the Ninth
Circuit Court of Appeals affirmed the denial of a motion for a preliminary
injunction, finding that the plaintiffs could not demonstrate a likelihood of success
on the merits of their free speech and free exercise claims. See National Institute
of Family and Life Advocates v. Harris, 839 F.3d 823 (9th Cir. 2016) (“NIFLA”).2
Through their motion in this case, Plaintiffs raise the very same arguments that the
Ninth Circuit soundly rejected in NIFLA. Recognizing this, Plaintiffs contend that
1

Plaintiffs’ Motion is confined to their free speech and free exercise claims under
the First Amendment, even though Plaintiffs’ Complaint also raises claims under
the Fourteenth Amendment, the Coats-Snowe Amendment, and the Hawaiʻi
Constitution. See Memorandum in Support of Motion (“Mem.”) at n.3.
2
NIFLA has also been referred to as Harris and Becerra.
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there are “crucial distinctions” between this case and NIFLA, Mem. at 2, but each
of Plaintiffs’ attempts to distinguish NIFLA fail, as demonstrated herein. Plaintiffs
simply cannot escape the effect of binding Ninth Circuit precedent. Based on
NIFLA, Plaintiffs fail to meet their burden of showing a likelihood of success on
the merits of their First Amendment claims, and their Motion must accordingly be
denied.
II.

BACKGROUND
A.

The Legislative History of the Act

On January 20, 2017, the Legislature introduced S.B. No. 501, a measure to
amend the statutory duties imposed on “limited service pregnancy centers.” See
Exhibit “B,” S.B. No. 501, 29th Leg., Reg. Sess. (2017). The bill was introduced
to “ensure that women in Hawaiʻi are able to make personal reproductive health
decisions with full and accurate information regarding their rights to access the full
range of health care services that are available.” Id.
The legislative history of the Act provides insight into the Legislature’s
intent. In a report to the President of the Senate of the State of Hawaiʻi, the
Committee on Ways and Means stated:
Your Committee believes that when it comes to health care, everyone
should have access to comprehensive, accurate, and unbiased
information in a confidential setting. Especially for women and their
reproductive health, timely information is critical in making informed
decisions.

3

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See Exhibit “C,” S. Stand. Comm. Rep. No. 907 (2017), at p. 2. In a report to the
President of the Senate and the Speaker of the House of Representatives of the
State of Hawaiʻi, the Committee on Conference stated:
Your Committee on Conference finds that individuals seeking
healthcare, including reproductive healthcare, should receive
comprehensive, accurate, unbiased information in a confidential
setting. In a reproductive healthcare setting, this includes receiving
information about the full range of options, including how to obtain
health insurance coverage should a woman be uninsured. Your
Committee on Conference further finds that when women are fully
informed, they can make the best decisions for themselves and their
health.
See Exhibit “D,” Conf. Comm. Rep. No. 156 (2017), at p. 2.
B.

The Legislature’s Findings

In Section 1 of the Act, the Legislature found that the State of Hawaiʻi,
through the Department of Health and the Department of Human Services,
administers public programs providing insurance coverage and direct services for
reproductive health care and counseling to eligible, low-income women. See S.B.
501, § 1. The Legislature also found that “[t]housands of women in Hawaiʻi are in
need of publicly-funded family planning services, contraception services and
education, pregnancy-related services, prenatal care, and birth-related services.”
Id. In particular, the Legislature found that:
In 2010, sixteen thousand women in Hawaii experienced an
unintended pregnancy, which can carry enormous social and
economic costs to both individual families and to the State. Many
women in Hawaii, however, remain unaware of the public programs
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available to provide them with contraception, health education and
counseling, family planning, prenatal care, pregnancy-related, and
birth-related services.
Id.
The Legislature found that “[b]ecause family planning decisions are time
sensitive and care early in pregnancy is important, Hawaiʻi must make every
possible effort to advise women of all available reproductive health programs.” Id.
In Hawai‘i, low-income women can receive immediate access to free or low-cost
comprehensive family planning services and pregnancy-related care through MedQUEST and the Department of Health’s family planning programs. Id. As the
Legislature found:
Requiring facilities that provide pregnancy- or family planning-related
services to provide accurate health information and to inform clients
of the availability of and enrollment procedures for reproductive
health programs will help ensure that all women in the State can
quickly obtain the information and services that they need to make
and implement informed, timely, and personally appropriate
reproductive decisions.
Id.
C.

The Act’s Requirements

The Act applies to a “limited service pregnancy center.”

That term is

defined in the Act as follows:
(a)

For purposes of this section, “limited service pregnancy center”
or “center”:
(1)

Means a facility that:
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(2)

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(A)

Advertises or solicits clients or patients with offers
to provide prenatal sonography, pregnancy tests, or
pregnancy options counseling;

(B)

Collects health information from clients or
patients; and

(C)

Provides family planning or pregnancy-related
services, including but not limited to obstetric
ultrasound, obstetric sonogram, pregnancy testing,
pregnancy
diagnosis,
reproductive
health
counseling, or prenatal care; and

Shall not include a health care facility. For the purposes
of this paragraph, a “health care facility” means any
facility designed to provide comprehensive health care,
including but not limited to hospitals licensed pursuant to
chapter 321, intermediate care facilities, organized
ambulatory health care facilities, emergency care
facilities and centers, health maintenance organizations,
federally qualified health centers, and other facilities
providing similarly organized comprehensive health care
services.

See S.B. 501, § 2.
The Act requires every “limited service pregnancy center” in the State of
Hawai‘i to disseminate on-site to clients or patients a written notice stating:
Hawaii has public programs that provide immediate free or
low-cost access to comprehensive family planning services, including,
but not limited to, all FDA-approved methods of contraception and
pregnancy-related services for eligible women.
To apply online for medical insurance coverage, that will cover
the full range of family planning and prenatal care services, go to
mybenefits.hawaii.gov.

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Only ultrasounds performed by qualified healthcare
professionals and read by licensed clinicians should be considered
medically accurate.
See S.B. 501, § 2.
The written notice must be in English or another language requested by a
client or patient, and must also contain the internet address for online medical
assistance applications and the statewide phone number for medical assistance
applications. Id. The notice must be disclosed in at least one of the following
ways:
(1)

A public notice on a sign sized at least eight and one-half
inches by eleven inches, written in no less than twenty-two
point type, and posted in a clear and conspicuous place within
the center’s waiting area so that it may be easily read by
individuals seeking services from the center; or

(2)

A printed or digital notice written or rendered in no less than
fourteen point type that is distributed individually to each
patient or client at the time of check-in for services; provided
that a printed notice shall be available to all individuals who
cannot or do not wish to receive the notice in digital format.

See S.B. 501, § 2.
The Act contains an enforcement provision that provides, in relevant part, as
follows:
(a) A limited service pregnancy center that violates section 321-A
shall be liable for a civil penalty of $500 for a first offense and $1,000
for each subsequent offense. If the center is provided with reasonable
notice of noncompliance, which informs the center that it is subject to
a civil penalty if it does not correct the violation within thirty days
from the date the notice is sent to the center, and the violation is not
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corrected as of the expiration of the thirty-day notice period, the
attorney general may bring an action in the district court of the district
in which the center is located to enforce this section.
A civil penalty imposed pursuant to this subsection shall be
deposited to the credit of the general fund.
(b) Any person who is aggrieved by a limited service pregnancy
center’s violation of section 321-A may bring a civil action against the
limited service pregnancy center in the district court of the district in
which the center is located to enjoin further violations and to recover
actual damages sustained together with the costs of the suit including
reasonable attorneys’ fees. The court may, in its discretion, increase
the award of damages to an amount not to exceed three times the
actual damages sustained. If damages are awarded pursuant to this
subsection, the court may, in its discretion, impose on a liable center a
civil fine of not more than $1,000 to be paid to the plaintiff.
A party seeking civil damages under this subsection may
recover upon proof of a violation by a preponderance of the evidence.
For the purpose of this subsection, “person” includes a natural
or legal person.
See S.B. 501, § 2.
D.

The California FACT Act and the Ninth Circuit’s Decision in
NIFLA

On October 9, 2015, California Assembly Bill 775, known as the
“Reproductive FACT (Freedom, Accountability, Comprehensive Care, and
Transparency) Act” (the “FACT Act”), was signed into law. See Exhibit “E,”
Assem. Bill No. 775. The stated purpose of the FACT Act “is to ensure that
California residents make their personal reproductive health care decisions
knowing their rights and the health care services available to them.” See Assem.
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Bill No. 775, § 2. The FACT Act requires a “licensed covered facility,” as
defined, to disseminate a notice to all clients stating that:
California has public programs that provide immediate free or lowcost 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].
See Assem. Bill No. 775, § 3 (the “Licensed Notice”). The notice required by S.B.
501 tracks, in large part, the Licensed Notice.
The FACT Act also requires an unlicensed covered facility, as defined, to
disseminate a notice to all clients, stating, among other things, that the facility is
not licensed as a medical facility by the State of California. See Assem. Bill No.
775, § 3 (the “Unlicensed Notice”).
After the FACT Act was signed into law, NIFLA and two other religiouslyaffiliated non-profit corporations opposed to abortion, brought suit in the Southern
District of California, arguing that the FACT Act violated their First Amendment
free speech and free exercise rights. NIFLA, 839 F.3d at 831-32. The plaintiffs
brought a motion for a preliminary injunction, seeking to enjoin enforcement of the
FACT Act prior to full litigation of the action.3 Id. The district court denied the
3

As in the present case, the NIFLA plaintiffs brought their motion for a
preliminary injunction with respect to their First Amendment claims. Id. at 831
n.3. The NIFLA plaintiffs’ claims for relief also included, as here, claims under
the Fourteenth Amendment, the Coats-Snowe Amendment, and a state
constitution. Id.
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plaintiffs’ motion for a preliminary injunction, finding that the plaintiffs were
unable to show a likelihood of success on their free speech and free exercise
claims. Id. at 832.
The Ninth Circuit affirmed. Id. at 845. With respect to their free speech
claims, the court rejected the plaintiffs’ argument that the FACT Act should be
subject to strict scrutiny. The court noted that while the FACT Act is contentbased, it does not discriminate based on viewpoint. Id. at 836. The court held that
the Licensed Notice regulates professional speech and is therefore subject to
intermediate scrutiny, which it survives.

Id. at 839–42.

The district court,

accordingly, did not err in concluding that the plaintiffs failed to show a likelihood
of success on the merits of their free speech claims. Id. at 834–35.
The Ninth Circuit also concluded, with respect to the plaintiffs’ free exercise
claims, that the FACT Act is a neutral law of general applicability and that it
survives rational basis review under Employment Division, Department of Human
Resources of Oregon v. Smith, 494 U.S. 872 (1990).
Because the plaintiffs were unable to show a likelihood of success on the
merits of their claims—the “most important” preliminary injunction factor under
Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008)—the court
affirmed the denial of the plaintiffs’ motion for a preliminary injunction. NIFLA,
839 F.3d at 829.

10

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III.

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LEGAL STANDARD
A preliminary injunction is “an extraordinary remedy never awarded as of

right.” Winter, 555 U.S. at 24; see also Munaf v. Geren, 553 U.S. 674, 689–90
(2008) (“A preliminary injunction is an ‘extraordinary and drastic remedy.’”
(quoting 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §
2948, p. 129 (2d ed. 1995))). Plaintiffs seeking a preliminary injunction “face a
difficult task in proving that they are entitled to this ‘extraordinary remedy.’”
Earth Island Inst. v. Carlton, 626 F.3d 462, 469 (9th Cir. 2010).
To succeed on a motion for a preliminary injunction, a plaintiff must
demonstrate:
(1) that he is likely to succeed on the merits of his claim; (2) that he is
likely to suffer irreparable harm in the absence of preliminary relief;
(3) that the balance of equities tips in his favor; and (4) that an
injunction is in the public interest.
NIFLA, 839 F.3d at 834 (citing Winter, 555 U.S. at 20). A preliminary injunction
may also issue if “a plaintiff demonstrates . . . that serious questions going to the
merits were raised[,] the balance of hardships tips sharply in the plaintiff’s favor”
and the two other Winter factors are met.

Alliance for the Wild Rockies v.

Cottrell, 632 F.3d 1127, 1134–35 (9th Cir. 2011) (quoting The Lands Council v.
McNair, 537 F.3d 981, 987 (9th Cir. 2008)). “Regardless of which standard
applies, the movant always ‘has the burden of proof on each element of the test.’”

11

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Blaisdell v. Dep’t of Pub. Safety, No. CIV. 14-00433 JMS, 2014 WL 5581032, at
*3 (D. Haw. Oct. 31, 2014).
IV.

ARGUMENT
A.

NIFLA v. Harris Controls this Case

In NIFLA, discussed above, the Ninth Circuit considered a preliminary
injunction motion with respect to a California act that is substantively the same as
the Act being challenged in this case.

Indeed, California’s FACT Act and

Hawai‘i’s Act were enacted for the same purpose—to ensure that women in
California and Hawai‘i, respectively, have information regarding the availability
of, and their rights to access, personal reproductive health services. As the Hawai‘i
Legislature found:
The purpose of this Act is to ensure that women in Hawaii are able to
make personal reproductive health decisions with full and accurate
information regarding their rights to access the full range of health
care services that are available.
See S.B. 501, § 1. Similarly, the California FACT Act provides:
The purpose of this Act is to ensure that California residents make
their personal reproductive health care decisions knowing their rights
and the health care services available to them.
See Assem. Bill No. 775, § 2. To that end, both acts require certain centers or
facilities, as defined, to provide informational notices regarding the availability of,
and enrollment procedures for, reproductive health programs offered by the state.
The California FACT Act’s notice states:
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California has public programs that provide immediate free or lowcost 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].
NIFLA, 839 F.3d at 830. The Hawai‘i notice that Plaintiffs challenge provides, in
relevant part:
Hawaii has public programs that provide immediate free or low-cost
access to comprehensive family planning services, including, but not
limited to, all FDA-approved methods of contraception and
pregnancy-related services for eligible women.
To apply online for medical insurance coverage, that will cover the
full range of family planning and prenatal care services, go to
mybenefits.hawaii.gov.
See S.B. 501, § 2.4
Despite the outcome in NIFLA, Plaintiffs raise the same arguments against
Hawai‘i’s notice as the plaintiffs in NIFLA raised against California’s notice.
Plaintiffs, however, cannot relitigate NIFLA. The Ninth Circuit’s decision in that
case controls the fate of the Motion at issue here.
In a transparent and unpersuasive attempt to circumvent the Ninth Circuit’s
decision in NIFLA, Plaintiffs contend that there are “crucial distinctions” between
the Act at issue here and the FACT Act. Mem. at 2. Specifically, Plaintiffs
contend that NIFLA does not control this case because: (1) the Act includes a
private right of action; (2) Calvary Chapel is a church; (3) Hawai‘i does not license
4

The Hawai‘i notice, unlike the California notice, does not mention abortion.
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Plaintiffs’ facilities in the same manner that California does; and (4) NIFLA is now
before the Supreme Court on a Petition for Certiorari. See Mem. at 2–5. Each of
these arguments must be rejected.
1.

The Act’s Private Right of Action is Irrelevant to Plaintiffs’
First Amendment Claims

The private right of action in the Act, for which there is no corollary in the
FACT Act, is completely irrelevant to Plaintiffs’ First Amendment claims.
Plaintiffs contend that because of the private right of action “the threat faced by
Plaintiffs and others like them is different in kind from that posed by the law in
[NIFLA],” Mem. at 3, but Plaintiffs fail to show that the First Amendment analysis
is affected in any way by the “threat” caused by a private right of action. Plaintiffs
object, through their First Amendment claims, to the notice required by the Act,
not the Act’s enforcement provisions, which operate only if a covered entity fails
to comply with the Act’s substantive provisions. The legal and financial burdens
Plaintiffs may face should they fail to comply with the Act are wholly irrelevant to
whether the Act violates Plaintiffs’ First Amendment rights. For that reason, the
existence of a private right of action does nothing either to enhance Plaintiffs’ First
Amendment claims or to shield Plaintiffs’ claims from the Ninth Circuit’s ruling in
NIFLA.

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2.

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Calvary Chapel’s Status as a Church Does Not Change the
Free Exercise Analysis

In another attempt to escape NIFLA, Plaintiffs contend that Calvary
Chapel’s First Amendment free exercise claim merits special treatment because
Calvary Chapel is “a church that runs its pregnancy center as a direct outgrowth of
its religious mission.” Mem. at 3. Plaintiffs are incorrect.
Plaintiffs’ free exercise claims, as discussed infra, are governed by
Employment Division, Department of Human Resources of Oregon v. Smith, 494
U.S. 872 (1990), which recognized that “the right of free exercise does not relieve
an individual of the obligation to comply with a ‘valid and neutral law of general
applicability on the ground that the law proscribes (or prescribes) conduct that his
religion prescribes (or proscribes).” Id. at 879 (quoting United States v. Lee, 455
U.S. 252, 263 n.3 (1982) (Stevens, J., concurring in judgment)). Under the Smith
test, a neutral law of general applicability is subject to rational basis review.
Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1076 (9th Cir. 2015).
There is no across-the-board church exemption to the Smith rule. Courts
have routinely applied Smith in cases involving churches.

See, e.g.,

Civil

Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 764 (7th Cir. 2003)
(holding that “it is neither the policy nor the practice of Chicago to refuse to extend
to churches its system of individualized exemptions and, thus, that the [ordinance]
is a generally applicable system of land-use regulation”); Cornerstone Bible
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Church v. City of Hastings, 948 F.2d 464, 472 (8th Cir. 1991) (applying Smith to
find that, “[a]bsent evidence of the City’s intent to regulate religious worship, the
ordinance [challenged by the church] is properly viewed as a neutral law of general
applicability”); Grace United Methodist Church v. City of Cheyenne, 451 F.3d
643, 655 (10th Cir. 2006) (holding that “[city’s] zoning ordinance constitutes a
neutral policy of general applicability which does not offend [Church’s] free
exercise principles”).
Plaintiffs rely on Hosanna-Tabor Evangelical Lutheran Church & School v.
EEOC, 565 U.S. 171 (2012), to argue that irrespective of Smith, strict scrutiny
applies to cases involving churches, but Hosanna-Tabor is inapposite. That case
addressed the selection of ministers by religious organizations in the context of
employment discrimination laws, concluding that unlike Smith, which “involved
government regulation of only outward physical acts,” the ability of a church to
choose its ministers is a “strictly ecclesiastical,” “internal church decision that
affects the faith and mission of the church itself.” Id. at 190, 195. Needless to say,
this case does not involve the selection of ministers, such that the narrow
“ministerial” exception recognized in Hosanna-Tabor would apply.

Nor can

Plaintiffs simply extend Hosanna-Tabor’s holding to the facts in this case, given
that the Hosanna-Tabor Court expressly limited its ruling to the circumstances
under consideration.

See id. at 196 (“The case before us is an employment

16

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discrimination suit brought on behalf of a minister, challenging her church’s
decision to fire her. Today we hold only that the ministerial exception bars such a
suit. We express no view on whether the exception bars other types of suits,
including actions by employees alleging breach of contract or tortious conduct by
their religious employers.”).
Even assuming that Hosanna-Tabor could stand for the proposition that
“internal church decisions” are uniformly exempted from Smith’s general rule,
Plaintiffs have failed to establish that the Act deals not with “outward physical
acts,” id. at 190, but instead with the internal teachings, workings, and mission of
Calvary Chapel. The notice required under the Act “informs the reader only of the
existence of publicly-funded family-planning services. It does not contain any
more speech than necessary, nor does it encourage, suggest, or imply that women
should use those state-funded services.” NIFLA, 839 F.3d at 842. There is
nothing in the Act preventing Calvary Chapel from espousing its views and beliefs
to its members, clients, or patients. See National Institute of Family and Life
Advocates v. Harris, 2016 WL 3627327, at *5 (S.D. Cal., Feb. 9, 2016) (observing
that “the [FACT Act] does not prohibit a center from mentioning, discussing or
advocating its pro-life viewpoint or even communicating its disagreement with the
statute itself”). Simply put, the internal teachings, workings, and mission of
Calvary Chapel are free to remain the same.

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3.

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California’s Licensing Scheme Does Not Affect NIFLA’s
Applicability to this Case

Plaintiffs also argue that NIFLA does not control this case because “Hawaii
does not license Plaintiffs’ facilities in the same manner that California does.”
Mem. at 4. According to Plaintiffs, the lack of a comparable licensing scheme
means that “there is no need to inform women that ‘they are using the medical
services of a facility that has not satisfied licensing standards set by the state.”
Mem at 4–5. Plaintiffs should be well aware, however, that Hawai‘i’s Act does not
require covered facilities to identify whether they have met state licensing
requirements. That is a feature of California’s FACT Act that is not mirrored in
Hawai‘i’s Act. As a result, Plaintiffs’ argument on this point is immaterial.
Plaintiffs also ignore that the NIFLA court’s ruling was not based on
California’s licensing scheme. The court nowhere concluded that the FACT Act
passed constitutional muster because California licenses the covered facilities.
Instead, the NIFLA court noted that states have the “power to regulate professions”
and the speech “within the practice of the profession.” 839 F.3d at 839. Those
conclusions were based on the professional speech doctrine (discussed infra),
without respect to California’s licensing scheme.
Moreover, even if licensing were central to NIFLA’s holding, it is beyond
dispute that Plaintiffs’ facilities include medical professionals subject to state
licensing requirements.

As stated in Plaintiffs’ Verified Complaint, Calvary
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Chapel provides medical services under the supervision of its Medical Director,
Dr. Vivien Wong. See Verified Complaint (“Compl.”) at ¶ 17. As such, any
purported distinction on the basis of California’s licensing requirement has no
merit.
4.

The Pending Certiorari Petition in NIFLA is Irrelevant

In their last stand against NIFLA, Plaintiffs argue that this case should be
treated differently from NIFLA because a petition for a writ of certiorari has been
filed with the U.S. Supreme Court in that case. The weakness of this argument is
apparent. As Plaintiffs know, a cert petition provides absolutely no guarantee of
Supreme Court review, and no guarantee of a contrary result even assuming
acceptance of cert. Moreover, NIFLA remains fully binding on this Court even if
the Supreme Court grants certiorari. See, e.g., JHP Pharm. LLC v. Hospira, Inc.,
No. CV-13-7460-DDP (EX), 2014 WL 12588690, at *4 (C.D. Cal. Feb. 10, 2014)
(“The basic Ninth Circuit rule is that a grant of certiorari does not supersede a case;
it remains good law unless the Supreme Court rules otherwise.”).5 There is simply
no reason for NIFLA to be ignored.

5

Plaintiffs contend that a preliminary injunction until the Supreme Court “decides
whether to hear the case and resolve it on the merits,” Mem. at 5, would simply
preserve the status quo in this case. Not so. As Plaintiffs acknowledge, the Act
has taken effect. See Compl. at ¶ 12. The status quo, therefore, would be for the
Act to continue in full force and effect.
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B.

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Plaintiffs Cannot Demonstrate a Likelihood of Success on the
Merits of their First Amendment Free Speech Claims
1.

Strict Scrutiny Does Not Apply

In their Motion, Plaintiffs futilely attempt to convince this Court that strict
scrutiny applies to the Act in review of their free speech claims. Despite devoting
ten pages of their brief to this topic, Plaintiffs fail to recognize that strict scrutiny
simply does not apply, as dictated by binding precedent. See NIFLA, 839 F.3d at
835–37.

Plaintiffs contend that the Act is subject to strict scrutiny because it is

content and viewpoint-based, but the Ninth Circuit, addressing the very same
arguments, disagreed. Id. There is no reason for this Court to reach a different
conclusion.
A regulation is content-based when “on its face” the regulation “draws
distinctions based on the message a speaker conveys.” Reed v. Town of Gilbert,
Ariz., 135 S. Ct. 2218, 2227 (2015). But the mere fact that a regulation is contentbased, standing alone, does not warrant application of strict scrutiny. Although the
NIFLA court determined that the FACT Act is content-based, it made clear that
strict scrutiny was not the appropriate standard. See NIFLA, 839 F.3d at 837
(noting that strict scrutiny has not been applied in abortion-related disclosure cases,
“even when the regulation is content-based”); see also United States v. Swisher,
811 F.3d 299, 313 (9th Cir. 2016) (“Even if a challenged restriction is contentbased, it is not necessarily subject to strict scrutiny.”). Here, even if the Act is
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content-based, Plaintiffs fail to the extent they argue strict scrutiny thereby applies.
That conclusion is dictated by NIFLA.
Plaintiffs’ argument that strict scrutiny is required because the Act is
viewpoint-based also fails. A regulation discriminates based on viewpoint when it
regulates speech based on “the specific motivating ideology or the opinion or
perspective of the speaker.” Reed, 135 S. Ct. at 2230. The Act does no such thing;
it applies to all “limited service pregnancy centers” regardless of their ideology,
opinion, or perspective on particular family-planning services. See NIFLA, 839
F.3d at 835 (“The Act, however, does not discriminate based on viewpoint. It does
not discriminate based on the particular opinion, point of view, or ideology of a
certain speaker. Instead, the Act applies to all licensed and unlicensed facilities,
regardless of what, if any, objections they may have to certain family-planning
services.”).
Plaintiffs attempt to erect a false dichotomy pursuant to which an entity is
either pro-life and therefore subject to the Act, or not pro-life, and therefore
exempt from the Act.

See, e.g., Mem. at 16-17, 28.

Contrary to Plaintiffs’

assertions, the Act applies regardless of viewpoint on abortion. It applies equally,
for example, to Planned Parenthood as it does to Calvary Chapel.6
6

Planned Parenthood falls squarely within the definition of a “limited service
pregnancy center” under the Act because it: (1) advertises or solicits clients or
patients with offers to provide, inter alia, pregnancy testing and pregnancy options
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The Act’s only exception is for “health care facilities,” as defined, because
“health care facilities” already provide comprehensive health care services and do
not, therefore, raise the Legislature’s informational concerns regarding the full
range of health services. See S.B. 501, § 1. The exemption does not favor or
disfavor any particular speakers based on their viewpoint. See NIFLA, 839 F.3d at
835.
For these reasons, the Act is not viewpoint-based, and strict scrutiny does
not apply.7

counseling; (2) collects health information from clients or patients; (3) provides
pregnancy-related services, including pregnancy diagnosis, prenatal care, and
prenatal tests such as ultrasounds; and (4) it is not a “health care facility” because it
does
not
provide
comprehensive
health
care.
See
https://www.plannedparenthood.org/healthcenter/hawaii/honolulu/96814/honolulu-health-center-2951-91810.
7
Even if strict scrutiny applied, which it does not, Plaintiffs cannot demonstrate a
likelihood of success on the merits. The Act is “narrowly tailored to promote [the]
compelling government interest” of ensuring that, in Hawai‘i, women’s
reproductive health decisions are informed by “full and accurate information,”
including knowledge of the “full range of health care services that are available.”
United States v. Playboy Entm’t, 529 U.S. 803, 823 (2000) (setting forth strict
scrutiny test); S.B. 501, § 1. The Act is also the “least restrictive alternative”; the
notice required by the Act does no more than necessary—recognizing that family
planning decisions are time sensitive and care early in pregnancy is important—to
“ensure that all women in the State can quickly obtain the information and services
that they need to make and implement informed, timely, and personally appropriate
reproductive health decisions.” S.B. 501, § 1; see A Woman’s Friend Pregnancy
Resource Clinic v. Harris, 153 F.Supp.3d 1168, 1207 (E.D. Cal. 2015), aff’d sub
nom. A Woman’s Friend Pregnancy Res. Clinic v. Harris, 669 F. App’x 495 (9th
Cir. 2016) (finding that the FACT Act satisfies strict scrutiny, at the preliminary
injunction stage, because it is narrowly tailored to affect speech “no more than is
necessary to convey the desired factual information,” and the least restrictive
22

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2.

The Act Regulates Professional
Intermediate Scrutiny

Speech

PageID #:

Subject

to

NIFLA establishes that intermediate scrutiny is the appropriate standard to
review the Act. The NIFLA court concluded that California’s Licensed Notice,
which mirrors the notice at issue in this case, regulates professional speech, i.e.
“speech that occurs between professionals and their clients in the context of their
professional relationship.” Id. at 839. The NIFLA court explained as follows:
Licensed clinics engage in speech that occurs squarely within the
confines of their professional practice. For example, Pregnancy Care
Clinic provides medical services such as ultrasounds, clinical services
such as medical referrals, and non-medical services such as peer
counseling and education. Thus, a regular client of Pregnancy Care
could easily use many of their services throughout the stages of her
pregnancy, such as receiving educational information about best
health practices when pregnant, relying upon Pregnancy Care for
regular check-ups, or using Pregnancy Care as a resource for
counseling. In all these instances, the client and Pregnancy Care
engage in speech that is part of Pregnancy Care’s professional
practice of offering family-planning services. There is no question
that Pregnancy Care’s clients go to the clinic precisely because of
the professional services it offers, and that they reasonably rely
upon the clinic for its knowledge and skill. Because licensed
clinics offer medical and clinical services in a professional context,
the speech within their walls related to their professional services
is professional speech.
Id. at 839–40 (emphases added). Based on Pickup v. Brown, 740 F.3d 1208 (9th
Cir. 2014), which established a continuum of professional speech regulation, the

alternative because it is “the most effective way to ensure women quickly obtain
the information and services they need” to make personal reproductive health
decisions”).
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NIFLA court concluded that intermediate scrutiny applies. NIFLA, 839 F.3d at
839.
Plaintiffs admit that NIFLA involved “similar disclosures regarding ‘the
existence of publicly-funded family planning services.’” See Mem. at 25. Yet
Plaintiffs nonetheless view as inapplicable the Ninth Circuit’s conclusion that such
disclosures constitute professional speech triggering intermediate scrutiny.
Plaintiffs argue that because NIFLA involved facilities licensed by the state, along
with a legislative finding that the ability of women to receive accurate information
about their reproductive rights and to exercise those rights was being hindered by
the existence of crisis pregnancy centers—neither of which, according to Plaintiffs
is present here—NIFLA’s professional speech rulings should be ignored. Id. This
argument must be rejected.
In NIFLA, the Ninth Circuit concluded that because the clinics covered by
the Licensed Notice “offer medical and clinical services in a professional context,
the speech within their walls related to their professional services is professional
speech.”

NIFLA, 839 F.3d at 840.

That conclusion was premised upon an

examination of the services provided by the facilities, which included, among other
things, ultrasounds, various clinical services, peer counseling, and education. Id. at
839–40. The court did not conclude that professional speech was at issue because
California licenses its facilities.

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In this case, as in NIFLA, the centers subject to the Act provide medical and
clinical services in a professional setting. In their Complaint, Plaintiffs make plain
that Calvary Chapel offers ultrasounds, pregnancy tests, counseling, and education
classes.

See Compl. at ¶ 28, 31-32.; see also NIFLA, 839 F.3d at 839–40

(“Pregnancy Care Clinic provides medical services such as ultrasounds, clinical
services such as medical referrals, and non-medical services such as peer
counseling and education. . . . In all these instances, the client and Pregnancy Care
engage in speech that is part of Pregnancy Care’s professional practice of offering
family-planning services.”). As the Ninth Circuit found, clinics or centers offering
these types of services “engage in speech that occurs squarely within the confines
of their professional practice.” Id. at 839.
It is also plain, as in NIFLA, that Plaintiffs’ clients go to their facilities
“precisely because of the professional services [they] offer[], and that they
reasonably rely upon the clinic for its knowledge and skill.” Id. at 840; see also
Lowe v. S.E.C., 472 U.S. 181, 232 (1985) (White, J., concurring) (“One who takes
the affairs of a client personally in hand and purports to exercise judgment on
behalf of the client in the light of the client’s individual needs and circumstances is
properly viewed as engaging in the practice of a profession.”).
circumstances, professional speech is most certainly at issue.

25

Under these

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Moreover, even if NIFLA’s professional speech ruling was premised upon
licensing, Plaintiffs’ Complaint confirms that Calvary Chapel provides medical
services under the supervision of its Medical Director, Dr. Vivien Wong, who is
licensed by the State. See Compl. at ¶ 17; Exhibit “F,” DCCA Professional &
Vocational Licensing Search Results for Vivien C. Wong. The NIFLA opinion
makes clear that states have “the power to regulate professions . . . as well as the
power to regulate the speech that occurs within the practice of the profession.” 839
F.3d at 839. Regardless of whether it is the centers or the professionals that are
licensed, assuming Plaintiffs’ licensing theory, the speech within the walls is
subject to the same regulation under the professional speech doctrine.8
Nor can NIFLA’s professional speech ruling be distinguished by mining for
differences between the findings of the California and Hawai‘i legislatures. A
legislative finding that the ability of women to receive accurate information about
their reproductive rights, and to exercise those rights, was being hindered by the
existence of crisis pregnancy centers was not central to the court’s analysis
8

To the extent Plaintiffs argue that the professional speech doctrine does not apply
because licensed professionals themselves are not uttering the Act’s required
notice, it is important to note NIFLA’s statement that “[t]he professional nature of
the[] speech does not change even if Appellants decide to have staff members
disseminate the Licensed Notice in the clinics’ waiting rooms, instead of by
doctors or nurses in the examining room.” 839 F.3d at 840. Here, as in NIFLA,
the professional relationship “extends beyond the examining room” and “[a]ll the
speech related to the clinics’ professional services that occurs within the clinics’
walls, including within [] the waiting room, is part of the clinics’ professional
practice.” Id.
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regarding the appropriate level of review.9 Rather, the court examined the services
provided by the centers and the context in which those services were provided.
The centers subject to the Act’s requirements provide substantially similar services
to the facilities in NIFLA, including ultrasounds and pregnancy counseling. Thus,
under the holding of NIFLA, the Act regulates professional speech and is subject
to intermediate scrutiny.

3.

The Act Survives Intermediate Scrutiny

“In order to survive intermediate scrutiny, ‘the State must show . . . that the
statute directly advances a substantial governmental interest and that the measure is
drawn to achieve that interest.’” NIFLA, 839 F.3d at 841 (quoting Sorrell v. IMS
Health Inc., 564 U.S. 552, 570 (2011)). Intermediate scrutiny is “demanding” but
9

The NIFLA court cited the California Legislature’s finding regarding the
existence of crisis pregnancy centers in analyzing whether the FACT Act’s
Unlicensed Notice passed constitutional muster. See NIFLA, 839 F.3d at 843
(“California has a compelling interest in informing pregnant women when they are
using the medical services of a facility that has not satisfied licensing standards set
by the state. And given the Legislature’s findings regarding the existence of CPCs,
which often present misleading information to women about reproductive medical
services, California’s interest in presenting accurate information about the
licensing status of individual clinics is particularly compelling.”). The Unlicensed
Notice requires unlicensed covered facilities, as defined, to disseminate 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.” NIFLA, 839 F.3d at 830. Hawaiʻi’s Act does not contain
such a notice provision, so the NIFLA court’s discussion of the California
Legislature’s finding regarding CPCs in reference to the Unlicensed Notice is
irrelevant to the level of scrutiny applicable in this case.
27

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requires less than strict scrutiny.

PageID #:

Id. (citing Retail Digital Network, LLC v.

Appelsmith, 810 F.3d 638, 648 (9th Cir. 2016)). “What is required is a ‘fit that is
not necessarily perfect, but reasonable; that represents not necessarily the single
best disposition but one whose scope is in proportion to the interest served; that
employs not necessarily the least restrictive means but . . . a means narrowly
tailored to achieve the desired objective.’” Id. (quoting Retail Digital, 810 F.3d at
649).
Hawaiʻi’s Act, like California’s in NIFLA, easily survives intermediate
scrutiny. Hawaiʻi has a substantial interest in the health of its citizens, including
ensuring that “women in Hawaiʻi are able to make personal reproductive health
decisions with full and accurate information regarding their rights to access the full
range of health care services that are available.” S.B. 501, § 1; see NIFLA, 839
F.3d at 841 (“California has a substantial interest in the health of its citizens,
including ensuring that its citizens have access to and adequate information about
constitutionally-protected medical services like abortion.”); see also Madsen v.
Women’s Health Ctr., Inc., 512 U.S. 753, 767 (1994) (“[T]he State has a strong
interest in protecting a woman’s freedom to seek lawful medical or counseling
services in connection with her pregnancy.”).
States also have a “compelling interest in the practice of professions within
their boundaries, and . . . as part of their power to protect the public health, safety,

28

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and other valid interests they have broad power to establish standards for . . .
regulating the practice of professions.” NIFLA, 839 F.3d at 841-42 (quoting Am.
Acad. of Pain Mgmt. v. Joseph, 353 F.3d 1099, 1109 (9th Cir. 2004)).
As in NIFLA, the notice required by the Act is narrowly drawn to achieve
Hawaiʻi’s substantial interests.

The notice informs the reader “only of the

existence of publicly-funded family-planning services,” does not contain “any
more speech than necessary,” and does not “encourage, suggest, or imply that
women should use those state-funded services.” NIFLA, 839 F.3d at 842.10 The
notice, moreover, is an effective means of informing women about state-funded
family-planning services, given that “family planning decisions are time sensitive
and care early in pregnancy is important.” S.B 501, § 1; see NIFLA, 839 F.3d at
842 (“[G]iven that many of the choices facing pregnant women are time-sensitive .
. . we find convincing the AG’s argument that because the Licensed Notice is
disseminated directly to patients whenever they enter a clinic, it is an effective
means of informing women about publicly-funded pregnancy services.”).

Throughout their Motion, Plaintiffs claim that the Act requires them to advertise
and/or promote abortion. See Mem. at 1, 8, 9, 14, 16, 26, 27, & 36. That is untrue.
The term “abortion” is not used anywhere in the Act. Indeed, the Act makes no
express or implied reference specifically to abortion. The Act requires Plaintiffs to
do nothing more than disseminate a neutral, informational notice.
10

29

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For those reasons, the Act survives intermediate scrutiny and Plaintiffs
cannot demonstrate a likelihood of success on the merits of their First Amendment
free speech claims.11
C.

Plaintiffs Cannot Demonstrate a Likelihood of Success on the
Merits of their First Amendment Free Exercise Claims

The Supreme Court has recognized that “the right of free exercise does not
relieve an individual of the obligation to comply with a ‘valid and neutral law of
general applicability on the ground that the law proscribes (or prescribes) conduct
that his religion prescribes (or proscribes).” Smith, 494 U.S. at 879 (quoting
United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens, J., concurring in
judgment)). Under the Smith test, a neutral law of general applicability is subject
to rational basis review. Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1076 (9th Cir.
11

The cases relied upon by Plaintiffs in support of their contention that “most
pregnancy disclosure laws have been enjoined” are entirely distinguishable. See
Mem. at 17-18. In Austin Lifecare, Inc. v. City of Austin, Civ. No. 1:11-cv-00875LY ECF No. 146 (W.D. Tex. June 23, 2014), the court enjoined Austin’s
unlicensed pregnancy service centers law as void for vagueness, and declined to
address the First Amendment issue. In both Evergreen Ass’n, Inc. v. City of New
York, 740 F.3d 233 (2nd Cir. 2014), and Centro Tepeyac v. Montgomery County,
5 F.Supp.3d 745 (D. Md. 2014), courts struck down laws that expressly
"encouraged" pregnant women to see a licensed health care provider.
In
Evergreen, the law also impermissibly required regulated clinics to expressly
disclose “whether or not they provide or provide referrals for abortion, emergency
contraception, or prenatal care.” Similarly, in Greater Baltimore Ctr. for
Pregnancy Concerns, Inc. v. Mayor and City of Baltimore, Civ. No. 1:10-cv00760-MJG ECF No. 118 (D. Md. Oct. 4, 2016), the court struck down a law
requiring regulated providers to post a disclaimer expressly stating that they “do[]
not provide or make referral for abortion or birth-control services.”
30

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2015). Because the Act is both neutral and generally applicable, rational basis
review applies. 12
1.

Neutrality

“A law lacks facial neutrality if it refers to a religious practice without a
secular meaning discernable from the language or context.” Id. (quoting Church of
the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993)). The
Act does not reference any religious practice, and is thus facially neutral. See
NIFLA, 839 F.3d at 844.
The Act is also operationally neutral because it “prescribes and proscribes
the same conduct for all, regardless of motivation.” Id. (quoting Stormans, 794
F.3d at 1077) (brackets omitted). The Act applies to all “limited service pregnancy
centers,” regardless of any objection, religious or otherwise. It is operationally
indifferent to religion or religious motivation. As the NIFLA court noted, the fact
that Plaintiffs’ objections to the Act are based on their religious beliefs, or that
Plaintiffs may be burdened more than others, does not diminish the Act’s
neutrality. See id. (“The fact that Appellants’ objections are grounded in their
religious beliefs does not affect the Act’s neutrality.”); Stormans, 794 F.3d at 1077
(“The possibility that pharmacies whose owners object to the distribution of
emergency contraception for religious reasons may be burdened disproportionately
As discussed supra at Section IV.A.2, Calvary Chapel cannot escape Smith by
relying on its status as a church.
12

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does not undermine the rules’ neutrality. The Free Exercise Clause is not violated
even if a particular group, motivated by religion, may be more likely to engage in
the proscribed conduct.”).
2.

General Applicability

A law is generally applicable so long as it does not “in a selective manner
impose burdens only on conduct motivated by religious belief.” Lukumi, 508 U.S.
at 543. As already noted, the Act applies irrespective of religious belief. The Act
contains an exemption for “health care facilities,” as that term is defined in the Act,
but that exemption does not undermine the Act’s general applicability. The “health
care facilities” exemption is based on the fact that those facilities provide
comprehensive health services, and therefore do not implicate the Legislature’s
concern regarding full information and access to the range of reproductive health
care services. See NIFLA, 839 F.3d at 844 (noting that the California FACT Act’s
second exemption for clinics that already provide all of the publicly-funded
services outlined in the FACT Act does not affect the Act’s general applicability).
The exemption is “tied directly to limited, particularized, business-related,
objective criteria,” and therefore has no impact on the Act’s general applicability.
NIFLA, 839 F.3d at 844–45 (quoting Stormans, 794 F.3d at 1082).

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Rational Basis Review

Because the Act is neutral and generally applicable, rational basis review
applies. 13 Stormans, 794 F.3d at 1076. As noted in Section IV.B.3, supra, the Act
survives intermediate scrutiny. It necessarily, therefore, also survives rational
basis review. See NIFLA, 839 F.3d at 845.
D.

Plaintiffs Cannot Satisfy the Remaining Preliminary Injunction
Factors

As discussed herein, Plaintiffs cannot show a likelihood of success on their
First Amendment free speech and free exercise claims.14 As that is the “most
important” preliminary injunction factor under Winter, this Court should deny

In an effort to avoid rational basis review, Plaintiffs also argue that this is a
“hybrid rights” case requiring strict scrutiny under Smith because this case
“involve[s] not the Free Exercise Clause alone, but the Free Exercise Clause in
conjunction with other constitutional protections”—in this case freedom of speech.
Mem. at 30 n.7 (quoting Smith, 494 U.S. at 881). Plaintiffs themselves recognize,
however, that their “hybrid rights” theory would require “a free exercise plaintiff
[to] make out a colorable claim that a companion right has been violated-that is, a
fair probability or a likelihood, but not a certitude, of success on the merits.” San
Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1032 (9th Cir. 2004).
Plaintiffs have not made such a showing. As discussed in Section IV.B, supra,
Plaintiffs have failed to demonstrate a likelihood of success on the merits of their
free speech claim. It should also be noted that “[t]he hybrid rights doctrine is
controversial. . . . has been characterized as mere dicta not binding on lower courts,
criticized as illogical, and dismissed as untenable.” Grace United Methodist
Church v. City Of Cheyenne, 451 F.3d 643, 656 (10th Cir. 2006) (citations
omitted).
14
Nor can Plaintiffs show “serious questions” going to the merits of their claims
under the alternate test outlined in Alliance for the Wild Rockies v. Cottrell, 632
F.3d 1127 (9th Cir. 2011). For the reasons outlined above, Plaintiffs’ First
Amendment claims fail.
13

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Plaintiffs’ Motion on that basis alone. See NIFLA, 839 F.3d at 829 (denying
plaintiffs’ motion for a preliminary injunction, finding that plaintiffs were unable
to show likelihood of success on the merits, the “most important” factor under
Winter). But even taking into account the remaining Winter factors, Plaintiffs
cannot succeed.
First, Plaintiffs have not shown that they will suffer irreparable harm in the
absence of a preliminary injunction. Plaintiffs’ alleged irreparable harm is being
forced to engage in compelled speech in violation of their First Amendment rights,
see Mem. at 31, but Plaintiffs have not shown a likelihood of success on the merits
on their First Amendment claims. As a result, any argument that Plaintiffs will be
irreparably harmed due to violation of their First Amendment rights necessarily
fails.
Second, Plaintiffs have not demonstrated that the balance of equities tips in
their favor.

Plaintiffs contend that their free speech rights “outweigh[] the

government’s interest in disseminating a message that the government can
disseminate itself,” Mem. at 37, but, as noted, Plaintiffs have failed to demonstrate
that their First Amendment claims are at all likely to succeed.

Additionally,

Plaintiffs’ requested injunction would interfere with the Hawai‘i Legislature’s
effort to ensure that women seeking family planning or pregnancy-related services
receive full and accurate information regarding their rights and the range of

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available services. See A Woman’s Friend Pregnancy Res. Clinic v. Harris, 153 F.
Supp. 3d 1168, 1216 (E.D. Cal. 2015), aff’d sub nom. A Woman’s Friend
Pregnancy Res. Clinic v. Harris, 669 F. App’x 495 (9th Cir. 2016). This effort
implicates important state interests, as outlined supra, and Plaintiffs’ meritless
First Amendment arguments do not outweigh the potential harm to women in need
of reproductive health services, but unaware of the full range of state-funded
services available.
Finally, Plaintiffs cannot demonstrate that an injunction is in the public
interest. Even assuming Plaintiffs’ argument that the public has an interest in
upholding free speech principles, that interest is not implicated here, where
Plaintiffs have failed to show a likelihood of success on the merits of their First
Amendment claims. Plaintiffs also ignore that their requested injunction runs
counter to the public’s interest in ensuring women are fully informed of the full
range of medical services available. An injunction will—counter to the public’s
interest—“limit the ability of a subset of women who are or may be pregnant from
accessing the straightforward information in the required notice when they are
making their time sensitive reproductive decisions.” A Woman’s Friend, 153 F.
Supp. 3d at 1217.

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V.

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CONCLUSION
For the foregoing reasons, Defendants respectfully request that the Court

deny Plaintiffs’ Motion.
DATED: Honolulu, Hawaiʻi, September 1, 2017.
STATE OF HAWAIʻI
DOUGLAS S. CHIN
Attorney General
State of Hawaiʻi

/s/ SKYLER G. CRUZ
SKYLER G. CRUZ
Deputy Attorney General
Attorney for Defendants
DOUGLAS S. CHIN and
DAVID IGE

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CERTIFICATE OF WORD COUNT
I hereby certify pursuant to LR 7.5(e) of the Local Rules of Practice for the
United States District Court for the District of Hawai‘i that the foregoing document
is typed in 14-point Times New Roman font and contains 8674 words, as
determined by the word count tool of the word processing system used to produce
said document, in compliance with the applicable word limitation set forth in LR
7.5(b).
DATED: Honolulu, Hawaiʻi, September 1, 2017.
STATE OF HAWAIʻI
DOUGLAS S. CHIN
Attorney General
State of Hawaiʻi

/s/ SKYLER G. CRUZ
SKYLER G. CRUZ
Deputy Attorney General
Attorney for Defendants
DOUGLAS S. CHIN and
DAVID IGE