Case 1:17-cv-00326-DKW-KSC Document 1 Filed 07/12/17 Page 1 of 31 James Hochberg Haw. Bar No. 3686 JAMES HOCHBERG, A.A.L. Bishop Street Tower, Ste 2100 700 Bishop Street Honolulu, HI 96813 (808) 534-1514 (808) 538-3075 (fax) jim@jameshochberglaw.com PageID #: 1 Kevin H. Theriot* AZ. Bar No. 030446 Kenneth Connelly* AZ. Bar No. 025420 ALLIANCE DEFENDING FREEDOM 15100 N. 90TH STREET Scottsdale, AZ 85260 (480) 444-0020 (480) 445-0028 (fax) ktheriot@ADFlegal.org kconnelly@ADFlegal.org Attorneys for Plaintiffs (See Next Page For Additional Counsel) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII CALVARY CHAPEL PEARL HARBOR, d/b/a A PLACE FOR WOMEN IN WAIPIO, a Hawaii Corporation; NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES d/b/a NIFLA, a Virginia corporation, Civ. Action No. _______ VERIFIED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND OTHER RELIEF Plaintiffs v. DOUGLAS S. CHIN, in his official capacity as Attorney General for the State of Hawaii; DAVID IGE, in his official capacity as Governor of the State of Hawaii, Defendants. 1 Case 1:17-cv-00326-DKW-KSC Document 1 Filed 07/12/17 Page 2 of 31 PageID #: 2 ADDITIONAL COUNSEL Anne O’Connor* California Bar No. 135341 New Jersey Bar No. 7371997 NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES 5601 Southpoint Centre Blvd. Fredericksburg, VA 22407 (540) 372-3930 AOConnor@nifla.org Attorneys for Plaintiffs *Applications for Admission Pro Hac Vice forthcoming 2 Case 1:17-cv-00326-DKW-KSC Document 1 Filed 07/12/17 Page 3 of 31 PageID #: 3 Come now the Plaintiffs, by and through their attorneys, and for their causes of action against Defendants aver the following: INTRODUCTION 1. This case is a federal civil rights action, brought pursuant to 42 U.S.C. § 1983, challenging the constitutionality of Hawaii Senate Bill 501 of the 2017 Hawaii legislative session (hereinafter the “Act”), which became law on July 12, 2017. A copy of the Act is attached hereto as Exhibit A. 2. Plaintiffs are a non-profit, pro-life, Christian church operating a pregnancy center known as A Place for Women in Waipio, located in Waipahu, Hawaii, and a national non-profit pro-life membership organization with 5 affiliates in Hawaii. Plaintiffs seek to provide help and pro-life information to women in unplanned pregnancies so that they will be supported in choosing to give birth, and practical medical or non-medical support free of charge in support of Plaintiffs’ pro-life viewpoint. 3. The Act, however, imposes government compelled speech upon the Plaintiff pregnancy centers due to their support for pregnant women, and in ways that undermine the centers’ messages. 4. The Act requires pregnancy centers such as Plaintiff Calvary Chapel’s “A Place for Women in Waipio” (“Calvary Chapel”) and other similar members of Plaintiff National Institute of Family and Life Advocates (“NIFLA”) to post a disclosure saying the State of Hawaii provides free or low-cost access to comprehensive planning services—including abortion and contraception services—and providing an internet address and phone number to refer or arrange for such 3 Case 1:17-cv-00326-DKW-KSC Document 1 Filed 07/12/17 Page 4 of 31 PageID #: 4 services. The notice must also include a statement that only ultrasounds performed by qualified healthcare professionals and read by licensed clinicians should be considered medically accurate. 5. The Act is therefore unconstitutional under the First Amendment to the United States Constitution. It is a classic example of compelled speech in violation of the Free Speech Clause. The law is expressly content-based, both because it compels the content of speech and because it regulates only speakers who wish to discuss the subject of pregnancy rather than any other health topic. The law is also viewpoint based because it forces pro-life pregnancy centers to promote abortion, and by exempting other health care facilities providing pregnancy care. For similar reasons the Act violates the free speech clause of the Hawaii Constitution, Art. I, Sec. 4. 6. The Act is also impermissibly vague under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. 7. The Act impermissibly burdens religion, is neither neutral to religion nor generally applicable, and therefore violates the Free Exercise Clause of the First Amendment to the United States Constitution. 8. The Act also violates federal statutory law, namely the Coats-Snowe Amendment, 42 U.S.C. § 238n, which protects health care entities from being required to refer for abortion or make arrangements for such referrals. 9. Accordingly, preliminary and permanent injunctive and declaratory relief against the Act are warranted. 10. Calvary Chapel is directly regulated by the Act. 4 Case 1:17-cv-00326-DKW-KSC Document 1 Filed 07/12/17 Page 5 of 31 11. PageID #: 5 NIFLA asserts organizational standing on behalf of its Hawaii members throughout the State of Hawaii that, just like Calvary Chapel, are regulated by the Act and unconstitutionally compelled to speak in violation of their views and mission. As discussed below, NIFLA’s claims fit comfortably within the Supreme Court’s doctrine of organizational standing, thus permitting it to obtain judicial relief for its members. 12. The Act went into effect July 12, 2017. 13. Therefore, preliminary injunctive relief is needed immediately in order to prevent irreparable harm to the rights of Plaintiffs and NIFLA’s Hawaii members. JURISDICTION AND VENUE 14. This Court has jurisdiction over the federal claims by operation of 28 U.S.C. §§ 1331 and 1343. This Court has authority to grant the requested injunctive relief under 28 U.S.C. § 1343; the requested declaratory relief under 28 U.S.C. §§ 2201 and 2202; and costs and attorneys fees under 42 U.S.C. § 1988(b). This Court has supplemental jurisdiction over Plaintiffs’ state claims under 28 U.S.C. § 1367. 15. Venue lies in the Federal District Court for the District of Hawaii pursuant to 28 U.S.C. § 1391(b). A substantial part of the actions or omissions giving rise to this case occurred within the District, and at least one Defendant resides in this District. 5 Case 1:17-cv-00326-DKW-KSC Document 1 Filed 07/12/17 Page 6 of 31 PageID #: 6 IDENTIFICATION OF THE PARTIES Plaintiffs 16. Plaintiff Calvary Chapel is a religious not-for-profit corporation duly incorporated under the laws of Hawaii, with its principal place of business at 94-1044 Waipio Uka Blvd., Waipahu, HI 96797. 17. It provides pregnancy-related medical as well as non-medical information and services without charge to its clients under the supervision of its Director, Sue Skinner, in furtherance of its religious beliefs. Medical services are provided under the supervision of the Medical Director, Dr. Vivien Wong. 18. Plaintiff National Institute of Family and Life Advocates is a religious not-for-profit corporation duly incorporated under the laws of Virginia, with its principal place of business at 5610 Southpoint Ctr. Blvd., #103, Fredericksburg, VA 22407. 19. It is comprised of member pregnancy centers from across the nation, including 5 in the state of Hawaii, that provide medical or non-medical information and services without charge to their clients, and are therefore regulated by the Act. 1 20. Three of NIFLA’s Hawaii members provide medical services, while two provide only non-medical services. 21. Upon information and belief, the state of Hawaii does not license Plaintiffs’ facilities or other pregnancy centers like them, regardless of whether 1 Aloha Pregnancy Care and Counseling Center, which is one of NIFLA’s members, is not represented by undersigned counsel as part of this complaint. Each remaining NIFLA member in Hawaii is represented by undersigned counsel as part of this complaint. 6 Case 1:17-cv-00326-DKW-KSC Document 1 Filed 07/12/17 Page 7 of 31 PageID #: 7 they are offer medical or non-medical services. Defendants 22. Defendant Douglas S. Chin is the Attorney General for the State of Hawaii and is sued in his official capacity. He is responsible under the Act for enforcing its provisions against entities in violation thereof, including the Plaintiff and NIFLA’s other Hawaii Members. The Act explicitly authorizes the attorney general to “bring an action in the district court of the district in which the center [alleged to have violated the Act] is located to enforce” the Act. Exhibit A. 23. Defendant David Ige is the Governor of the State of Hawaii, and is sued in his official capacity. He is the chief executive of the State of Hawaii and is responsible for funds that the state has received from the federal government, subjecting it to 42 U.S.C. § 238n. FACTUAL ALLEGATIONS 24. Plaintiff Calvary Chapel and NIFLA’s other member pregnancy centers provide compassionate and loving information and services to serve the medical, emotional, and material needs of women who face unplanned pregnancies to help them choose birth for their children. Calvary Chapel 25. Calvary Chapel is a Christian church located in Waipahu. As a ministry of the church, Calvary Chapel operates A Place for Women in Waipio (hereinafter “Calvary Chapel”), a pregnancy center which exists to serve women and their unborn children. Calvary Chapel also operates a preschool, a kindergarten, a K-8 elementary school, and approximately 30 other ministries 7 Case 1:17-cv-00326-DKW-KSC Document 1 Filed 07/12/17 Page 8 of 31 PageID #: 8 consistent with its religious faith and teachings, on the same premises that houses the church proper. 26. A Place for Women is located in the same building as Calvary Chapel’s other places of ministry such as its sanctuary and rooms where Bible classes are taught. 27. A Place for Women is an integral part of Calvary Chapel’s purpose and ministry to the people of Hawaii. 28. Calvary Chapel provides both medical and non-medical pro-life information and services—at no charge—to women facing unplanned pregnancies. 29. Calvary Chapel provides its services to women in unplanned pregnancies pursuant to its pro-life viewpoint, desiring to empower the women it serves to choose life for their child, rather than abortion. 30. Calvary Chapel describes its mission on its website: “[t]he mission of A Place for Women in Waipio is to empower as many men and women as possible in Hawaii to make healthy life choices in regards to sexuality and child bearing consistent with the sanctity of life. We do this by providing compassionate resources of hope through free medical and consultation services for pregnancy and community education programs while sharing the gospel of Jesus Christ.” 31. Medical services provided by Calvary Chapel include urine pregnancy tests and ultrasound examinations. 32. Non-medical services provided by Calvary Chapel include pregnancy counseling, adoption referrals, abstinence education, post-abortive recovery classes, child birth education classes, and the provision of various materials and 8 Case 1:17-cv-00326-DKW-KSC Document 1 Filed 07/12/17 Page 9 of 31 PageID #: 9 supplies (including diapers and baby clothes) to pregnant women. 33. The medical team at Calvary Chapel consists of a medical director and nurses. Dr. Vivien Wong is the medical director at Calvary Chapel. Dr. Wong is board certified in radiology. 34. Calvary Chapel is a religious organization and pursues its pro-life message and activities as an extension of its religious belief that human life is a gift from God that should under no circumstances be destroyed by abortion. 35. Calvary Chapel, as matter of religious belief, supports natural family planning as an appropriate manner of preventing pregnancy, and does not support the provision of the full range of contraceptive drugs and devices approved by the United States Food and Drug Administration. It would therefore violate the religious beliefs of Calvary Chapel to promote or provide artificial means of contraception. National Institute of Family and Life Advocates (“NIFLA”) 36. NIFLA is a non-profit membership organization comprised of a network of both medical and non-medical centers providing pro-life medical care and pro-life information services to women facing unplanned pregnancies. 37. NIFLA is incorporated as a religious organization. 38. NIFLA provides both medical and non-medical pro-life pregnancy centers with legal resources and counsel, with the aim of developing a network of life-affirming ministries in every community across the nation in order to achieve an abortion-free America. 39. NIFLA’s mission is to empower the choice for life by: equipping 9 Case 1:17-cv-00326-DKW-KSC Document 1 Filed 07/12/17 Page 10 of 31 PageID #: 10 pregnancy centers with legal counsel and support; enabling pregnancy centers to convert to medical clinic status; and energizing pregnancy centers with a renewed vision for the future. 40. NIFLA has five member centers in Hawaii, three of which (including Calvary Chapel) provide medical services, and two of which provide only nonmedical services. 41. NIFLA’s religious mission includes helping its member centers advance their pro-life objectives, whether those centers are expressely religious like Calvary Chapel, or not. 42. NIFLA’s Hawaii members are regulated under the Act and are subject to the Act’s compelled speech requirements. 43. NIFLA has organizational standing to represent all of its member pregnancy centers from the State of Hawaii. See New York State Club Ass’n v. City of New York, 487 U.S. 1, 9 (1988). 44. Each member center of NIFLA would otherwise have standing to sue in its own right in this case. 45. The interests that NIFLA seeks to protect are germane to NIFLA’s purpose, including the purpose to support its pro-life pregnancy center members and enable them to carry out their respective missions, consistent with their prolife and religious viewpoints. 46. Neither the claims asserted nor the relief requested requires participation of all of NIFLA’s individual members in this suit, but can be awarded to NIFLA’s members as a group. 10 Case 1:17-cv-00326-DKW-KSC Document 1 Filed 07/12/17 Page 11 of 31 PageID #: 11 Senate Bill 501 The Act’s Requirements 47. The Hawaii legislature indicates that the purpose of the 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.” Exhibit A. 48. The Act defines a “limited service pregnancy center” as a facility that: (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.” 49. The Act mandates that “[e]very limited service pregnancy center in the State shall disseminate on-site to clients or patients the following written notice in English or another language requested by a client or patient.” Exhibit A. 50. The notice which limited service pregnancy centers are required to provide must state the following: “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 11 Case 1:17-cv-00326-DKW-KSC Document 1 Filed 07/12/17 Page 12 of 31 PageID #: 12 care services, go to mybenefits.hawaii.gov. Only ultrasounds performed by qualified healthcare professionals and read by advanced clinicians should be considered medically accurate.” Exhibit A. 51. The notice must state “the internet address for online medical assistance applications and the statewide phone number for medical assistance applications.” Exhibit A. 52. 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 bv 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 a digital format Exhibit A. 53. The Act further requires that the notice be “written . . . in English or another language requested by a client or patient . . . .” Exhibit A. In practical terms, this means that the centers could be required to publish notices in multiple languages. 54. Furthermore, a pregnancy center “that provides or assists in the provision of pregnancy testing shall provide the individual tested with a free 12 Case 1:17-cv-00326-DKW-KSC Document 1 Filed 07/12/17 Page 13 of 31 PageID #: 13 written statement of the results of the pregnancy test in English or another language requested by a client or patient immediately after the test is completed.” Exhibit A. 55. Upon information and belief, state social services in Hawaii provide or refer women for abortions. 56. Therefore, the Act therefore requires “limited service pregnancy centers” to provide referrals for abortion and/or arrange for referrals for abortion by requiring such centers to provide contact information for the applicable state social service resource to all clients so that they may procure an abortion. 57. Calvary Chapel’s primary purpose is providing pregnancy-related information and services. 58. Calvary Chapel offers limited obstetric ultrasounds to pregnant women. 59. Calvary Chapel offers pregnancy tests or pregnancy diagnosis. 60. Calvary Chapel advertises or solicits patrons with offers to provide prenatal sonography, pregnancy tests, or pregnancy options counseling. 61. Calvary Chapel has staff or volunteers who collect health information from clients. 62. NIFLA’s other centers also meet the Act’s definition of “limited service pregnancy centers” for reasons substantially similar to Calvary Chapel. 63. Calvary Chapel and NIFLA’s other related centers are thus subject to the Act’s required disclosures as “limited service pregnancy centers.” 64. The legislative history of the Act indicates that the Act is intended to force pro-life pregnancy centers to advertise abortion services. The legislative 13 Case 1:17-cv-00326-DKW-KSC Document 1 Filed 07/12/17 Page 14 of 31 PageID #: 14 history of the Act further indicates that the Act is meant to advertise abortion services. Previous versions of the bill required the disclaimer to advertise “abortion” services, but the Act was later amended to read “pregnancy-related services.” See http://www.capitol.hawaii.gov/session2017/bills/SB501_.HTM; see also Balir, Chad, AG: Hawaii Senate Improperly Withheld Testimony From Public, HONOLULU CIVIL BEAT, Apr. 11, 2017, available at http://www.civilbeat.org/2017/04/ag-hawaii-senate-improperly-withheld-testimo ny-from-public/. The previous disclaimer read: “Hawaii 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 appropriate Med-QUEST division eligibility office.” See http://www.capitol.hawaii.gov/session2017/bills/SB501_HTM. 65. Upon information and belief, the Act does not apply to facilities providing abortions. Organizations Not Covered by the Act 66. The Act does not apply to “health care facilit[ies].” Exhibit A. “Health care facility” is defined as “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.” Id. 14 Case 1:17-cv-00326-DKW-KSC Document 1 Filed 07/12/17 Page 15 of 31 67. PageID #: 15 Neither Calvary Chapel nor NIFLA’s other member centers provide “comprehensive health care,” but provide only pregnancy services. 68. The Act does not affect—and places no communication or disclosure requirements upon—all other facilities or centers that provide family planning or reproductive health services, so long as those other provide “comprehensive health care.” 69. Thus, Calvary Chapel and NIFLA’s other member centers are subjected by the state to a compelled speech requirement from which all other facilities offering an array of similar health services—but additionally abortion and contraception, to which Calvary Chapel and NIFLA’s other member centers object to providing on religious and moral grounds—are exempted. 70. Upon information and belief, the Act’s practical exemption, in purpose and effect, applies to facilities which provide abortion and contraception as part of “comprehensive health care” services, freeing them from the Act’s disclosure requirements, while leaving pro-life facilities subject to them. Enforcement Provisons of the Act 71. Covered facilities like Calvary Chapel and NIFLA’s other member centers which fail to comply with the Act are liable for a civil penalty of $500 for a first offense and $1000 for each subsequent offense. Exhibit A. 72. The Attorney General is empowered by the Act to bring an action to enforce the Act and to impose a civil penalty pursuant to the Act if the pregnancy 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 15 Case 1:17-cv-00326-DKW-KSC Document 1 Filed 07/12/17 Page 16 of 31 PageID #: 16 thirty days from the date the notice is sent to the center, and the violation is not 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.” Exhibit A. 73. The Act also states: “[a]ny 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 . . . .” Exhibit A. 74. That person (person being defined as including a “natural or legal person”) is entitled under the Act to recover “actual damages sustained together with the costs of the suit including reasonable attorneys’ fees.” Exhibit A. 75. The Act also permits a court, “in its discretion,” to “increase the award of damages [up] to . . . three times the actual damages sustained.” Exhibit A. 76. The Act further allows the court, “in its discretion,” to impose a civil fine of not more that $1,000 to be paid to a plaintiff. Exhibit A. The Act’s Effect on Plaintiffs 77. The Act compels Calvary Chapel and NIFLA’s other member centers to engage in government-mandated speech. 78. The pregnancy discussions and help provided by Plaintiff Facilities are of an ideologically sensitive nature. 79. Forcing the Act’s disclosures on Plaintiff Facilities’ speech is detrimental to their mission of counseling and helping women in accordance with their religious beliefs and in line with their viewpoint. 16 Case 1:17-cv-00326-DKW-KSC Document 1 Filed 07/12/17 Page 17 of 31 PageID #: 17 80. Plaintiff Facilities desire not to utter the disclosures required by the 81. Plaintiff Facilities intend to not comply with the Act. 82. Plaintiff Facilities desire to continue engaging in their own speech and Act. expressive services while refusing to post, distribute, or otherwise communicate the required compelled statements. 83. Plaintiff Facilities’ refusal to comply with the Act subjects them to fines and prosecution by Defendants—and even private persons and organizations—under the Act. 84. Plaintiff Facilities are subject to the harms of prosecution and private civil actions under the Act if they fail to comply. 85. Plaintiff Facilities are non-profit organizations with limited funding and relatively small budgets. 86. The Act’s penalties would significantly harm Plaintiff Facilities’ ability to continue their expressive operations. 87. The Act imposes three untenable choices on Plaintiff Facilities: comply with the Act in violation of their expressive views and religious beliefs; continue their speech and services without complying with the Act and be prosecuted or sued, penalized, and injured in their ability to pursue their expressive operations; or cease their expressive activities and services altogether. 88. Plaintiffs face a credible threat of adverse state or private action because of the Act. 89. Requiring Plaintiff Facilities to utter the Act’s disclosures forces 17 Case 1:17-cv-00326-DKW-KSC Document 1 Filed 07/12/17 Page 18 of 31 PageID #: 18 Plaintiff Facilities to undermine the content, context, and tone of the viewpoint that they wish to deliver in their pro-life messages. 90. The Act imposes an impermissible penalty and chill on Plaintiff Facilities’ speech, subjecting Plaintiff Facilities to irreparable harm. 91. Requiring the religious Plaintiff Facilities to utter the Act’s disclosures imposes a burden on the exercise of their religious beliefs by requiring them to promote abortion and contraception and/or to undermine their pro-life message of love and support which they pursue precisely because of their religious beliefs. 92. The Act’s regulation of Plaintiff Facilities imposes penalties based on vague terms that do not provide adequate notice of whether or how the law applies and what constitutes a violation of the Act. 93. The Act’s permitting of private civil actions by “[a]ny person who is aggrieved by a . . . violation” is vague as to what constitutes a violation and what renders a person “aggrieved.” 94. The Act’s disclosure requirements for Calvary Chapel and NIFLA’s other medical centers require that those centers “provide referrals for . . . abortions” or “make arrangements” for such referrals, in the meaning of 42 U.S.C. § 238n. 95. The medical centers are health care entities protected under 42 U.S.C. § 238n. 96. The health providers in Plaintiff Facilities responsible for compliance with the Act include individual physicians. 97. The State of Hawaii receives federal funding including “governmental 18 Case 1:17-cv-00326-DKW-KSC Document 1 Filed 07/12/17 Page 19 of 31 PageID #: 19 payments provided as reimbursement for carrying out health-related activities” that subject it to 42 U.S.C. § 238n. 98. 42 U.S.C. § 238n is an “Act of Congress providing for the protection of civil rights” belonging to the Plaintiff Facilities, under 28 U.S.C. § 1343. 99. Plaintiff Facilities have both individual rights under 42 U.S.C. § 238n and remedies under 28 U.S.C. § 1343 and 42 U.S.C. § 1983 to bring this action for the violation of their rights under 42 U.S.C. § 238n. 100. Enforcement of the Act will irreparably harm Plaintiff Facilities by infringing upon their First Amendment rights to free speech and religious exercise; the Fourteenth Amendment right to due process and the freedom from uncabined government discretion; and the individual rights contained in 42 U.S.C. § 238n for the facilities providing medical services. 101. Defendants—and private persons or parties—are vested with power to enforce the Act against Plaintiff Facilities. 102. Passage of the Act into law represents an imminent and concrete threat that either Defendants or private persons will enforce the Act against Plaintiff Facilities. 103. Enjoining Defendants and the private persons empowered to bring civil actions from enforcing the Act is necessary to protect Plaintiff Facilities from the chill and punishment imposed on their rights. 104. Each of the potential enforcement actions permitted by the Act would be perpetrated under the color of state law, including the statutes, regulations, customs, policies, and usages of the State of Hawaii. 19 Case 1:17-cv-00326-DKW-KSC Document 1 Filed 07/12/17 Page 20 of 31 PageID #: 20 105. Plaintiffs have no adequate remedy at law. CLAIMS FOR RELIEF FIRST CLAIM: VIOLATION OF THE FREE SPEECH CLAUSE AMENDMENT TO THE UNITED STATES CONSTITUTION OF THE FIRST 106. Paragraphs 1–105 are incorporated as if fully set forth herein. 107. The First Amendment to the United States Constitution provides in relevant part: “Congress shall make no law . . . abridging the freedom of speech.” 108. The First Amendment is applicable to state and local governments by incorporation in the Fourteenth Amendment. 109. The Act unconstitutionally restricts Plaintiff Facilities’ rights of free speech, which includes the right to refrain from speaking, to choose how and when to deliver particular messages, and the right to refuse to speak a governmentdictated message. 110. The Act unconstitutionally forces Plaintiff Facilities, on pain of government penalty and exposure to private civil suits, to engage in government disclaimers that Plaintiff Facilities would not otherwise recite, that undermine Plaintiff Facilities’ message, and that contradict Plaintiff Facilities’ viewpoint from which they speak. 111. The Act is unconstitutionally and substantially overbroad. 112. The Act is also unconstitutionally underinclusive, because by its exemption it omits many centers that provide pregnancy related services. 113. The Act imposes an unconstitutional chill and penalty on Plaintiff Facilities’ speech, and without declaratory and injunctive relief, will continue to 20 Case 1:17-cv-00326-DKW-KSC Document 1 Filed 07/12/17 Page 21 of 31 PageID #: 21 do so. 114. The Act is a content-based regulation of speech. 115. The Act also unconstitutionally discriminates against Plaintiff Facilities’ speech based on their viewpoint because, among other things, it requires them to promote abortion options, and it exempts from the Act’s requirements facilities that provide certain family planning or Med-QUEST services. 116. By compelling government speech and by regulating speech based viewpoint the Act is presumptively unconstitutional and at the very least subject to strict scrutiny. 117. Strict scrutiny is also required because the Act regulates the speech of the Plaintiff Facilities based on its content. 118. The Act does not promote any legitimate, or compelling, government interest, and Defendants lack any evidence or sufficient evidence to demonstrate the existence of such an interest. 119. The Act is not tailored at all, much less narrowly tailored, to further any governmental interest, and it does not do so by the least restrictive means of Plaintiff Facilities’ speech. 120. Defendants have ample alternative channels to achieve any alleged interest without imposing the Act’s burdens on the speech of Plaintiffs. 121. The Act is an unconstitutional restriction of speech under any standard applicable to the Plaintiff Facilities. 122. The Act is unconstitutional not only as applied to Plaintiff Facilities, but on its face as applied to any facility. 21 Case 1:17-cv-00326-DKW-KSC Document 1 Filed 07/12/17 Page 22 of 31 PageID #: 22 123. Accordingly, the Act violates the First Amendment to the United States Constitution. 124. Therefore, the Act and Defendants’ enforcement thereof unconstitutionally infringes on Plaintiffs’ rights, thereby entitling Plaintiffs to the relief requested below, pursuant to 42 U.S.C. §1983. 125. WHEREFORE, Plaintiffs respectfully request that the Court grant the relief set forth hereinafter in the prayer for relief. SECOND CLAIM: VIOLATION OF THE RIGHTS OF PLAINTIFF FACILITIES UNDER THE FIRST AMENDMENT’S FREE EXERCISE OF RELIGION CLAUSE 126. Paragraphs 1–105 are incorporated as if fully set forth herein. 127. Plaintiff Facilities exercise their religion in their provision of pro-life information and services, and in the way in which they choose to speak and not speak during the same. 128. Plaintiff Facilities are religious and faith-based organizations that can and do exercise religion, including in promoting their pro-life message and in providing their medical and non-medical services. 129. Forcing Plaintiff Facilities to recite the Act’s disclosures substantially burdens the exercise of religious beliefs of Plaintiff Facilities, undermining their pro-life message and the way in which they promote that message in pursuit of their religious beliefs. 130. The Act is not neutral or generally applicable because—among other things—it exempts certain facilities that offer “comprehensive health care.” 22 Case 1:17-cv-00326-DKW-KSC Document 1 Filed 07/12/17 Page 23 of 31 PageID #: 23 131. Defendants cannot offer sufficient justification to burden Plaintiff Facilities’ free exercise of religion by means of the Act. 132. The Act therefore violates Plaintiff Facilities’ rights under the Free Exercise of Religion Clause. 133. The Act also violates Plaintiff Facilities’ “hybrid” rights under the Free Exercise of Religion Clause in conjunction with their freedom of speech. 134. The First Amendment’s Free Exercise of Religion Clause requires the government to satisfy strict scrutiny before it may burden an organization’s exercise of religion in conjunction with exercising its right to free speech. 135. The Act infringes on a hybrid of Plaintiffs’ Free Exercise of Religion and Free Speech rights. 136. Defendants cannot show a compelling interest for imposing the Act on Plaintiff Facilities, nor can they demonstrate that the Act pursues its goals in the means least restrictive of Plaintiff Facilities’ rights. 137. Accordingly, the Act violates the Plaintiff Facilities’ First Amendment right to the free exercise of religion and violates a hybrid of their Free Exercise of Religion and Free Speech rights. 138. WHEREFORE, Plaintiffs respectfully request that the Court grant the relief set forth hereinafter in the prayer for relief. THIRD CLAIM: VIOLATION OF THE COATS-SNOWE AMENDMENT, 42 U.S.C. §238N 139. Paragraphs 1–105 are incorporated as if fully set forth herein. 23 Case 1:17-cv-00326-DKW-KSC Document 1 Filed 07/12/17 Page 24 of 31 PageID #: 24 140. Defendants violated, and continue to violate, 42 U.S.C. § 238n by requiring Calvary Chapel and NIFLA’s other medical member centers to provide referrals for abortion and/or to make arrangements for referrals for abortion by requiring such medical centers to provide contact information for the applicable state social services office in order to procure abortion services. 141. By requiring these medical centers to provide contact information to state social services offices for abortion services, Defendants have violated Plaintiffs’ rights under 42 U.S.C. § 238n. 142. Plaintiffs have suffered and continue to suffer injury and irreparable harm by Defendants’ actions, thereby giving rise to the need for injunctive, declaratory, and other forms of relief against Defendants. 143. WHEREFORE, Plaintiffs respectfully request that the Court grant the relief set forth hereinafter in the prayer for relief. FOURTH CLAIM: VIOLATION OF HAWAII CONSTITUTION, ART. I, SEC. 4 THE FREE SPEECH CLAUSE OF THE 144. Paragraphs 1–105 are incorporated as if fully set forth herein. 145. The free speech clause of the Hawaii Constitution, Art. I, Sec. 4, provides that “[n]o law shall be enacted . . . abridging the freedom of speech.” 146. Although “[t]he language of [the] federal and Hawai‘i constitutional free speech provisions is identical” the Hawaii Supreme Court “may find that the Hawai‘i Constitution affords greater free speech protection than its federal counterpart.” Oahu Publications Inc. v. Ahn, 331 P. 3d 460, 472 (Haw. 2014). 24 Case 1:17-cv-00326-DKW-KSC Document 1 Filed 07/12/17 Page 25 of 31 PageID #: 25 147. At the very least then, the Hawaii constitution provides as much protection for free speech as does the First Amendment to the United States Constitution, but it may also provide greater protection. 148. The Act unconstitutionally restricts Plaintiff Facilities’ rights of free speech under the Hawaii Constitution, which includes the right to refrain from speaking, to choose how and when to deliver particular messages, and the right to refuse to speak a government-dictated message. 149. The Act unconstitutionally compels Plaintiff Facilities, upon pain of government penalty and even government-sanctioned private suits, to recite government messages they would otherwise not communicate, messages that undermine Plaintiff Facilities’ own chosen messages and beliefs, and that contradict the viewpoint from which Plaintiff Facilities’ speak. 150. The Act is unconstitutionally and substantially overbroad. 151. The Act is also unconstitutionally underinclusive because it exempts many centers that provide pregnancy-related services. 152. The Act imposes an unconstitutional chill and penalty on Plaintiff Facilities’ speech, and without declaratory and injunctive relief, it will continue to do so. 153. The Act is a content-based regulation of speech. 154. The Act also unconstitutionally discriminates against Plaintiff Facilities’ speech based on their viewpoint because, among other things, it requires them to promote abortion and contraception options, and it exempts from the Act’s requirements facilities that provide certain family planning or Med-QUEST 25 Case 1:17-cv-00326-DKW-KSC Document 1 Filed 07/12/17 Page 26 of 31 PageID #: 26 services. 155. By compelling government speech and by regulating speech based upon viewpoint the Act is presumptively unconstitutional and at the very least subject to strict scrutiny. 156. Strict scrutiny is also required because the Act regulates the speech of the Plaintiff Facilities based on its content. 157. The Act does not promote any legitimate, or compelling, government interest, and Defendants lack any evidence or sufficient evidence to demonstrate the existence of such an interest. 158. The Act is not tailored at all, much less narrowly tailored, to further any governmental interest, and it does not do so by the means least restrictive of Plaintiff Facilities’ speech. 159. Defendants have ample alternative channels to achieve any alleged interest without imposing the Act’s burdens on the speech of Plaintiffs. 160. The Act is an unconstitutional restriction of speech under any standard applicable to Plaintiff Facilities. 161. The Act is unconstitutional not only as applied to Plaintiff Facilities, but on its face as applied to any facility. 162. Accordingly, the Act violates the free speech clause of the Hawaii Constitution, Art. I, Sec. 4. 163. WHEREFORE, Plaintiffs respectfully request that the Court grant the relief set forth hereinafter in the prayer for relief. 26 Case 1:17-cv-00326-DKW-KSC Document 1 Filed 07/12/17 Page 27 of 31 PageID #: 27 FIFTH CLAIM: VIOLATION OF THE DUE PROCESS CLAUSE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION OF THE 164. Paragraphs 1–105 are incorporated as if fully set forth herein. 165. The Fourteenth Amendment of the United States Constitution’s right to due process protects against the government’s imposition of penalties such as fines based on vague terms that do not give regulated entities adequate notice of whether or how the law applies and what entities can do to comply. 166. The Act is vague because it does not adequately define: (a) “comprehensive health care,” (b) “health care facility,” (c) “health information.” (d) “violation,” or (d) “aggrieved.” 167. Accordingly, the Act violates Calvary Chapel’s and NIFLA’s other member centers’ Fourteenth Amendment guarantees of due process. 168. WHEREFORE, Plaintiffs respectfully request that the Court grant the relief set forth hereinafter in the prayer for relief. PRAYER FOR RELIEF Plaintiffs respectfully request the following relief: A. Declare the Act unconstitutional under the United States and Hawaii Constitutions and in violation of the federal statute herein pled, both on its face and and as-applied to Plaintiffs; B. Enter preliminary and permanent injunctions against the enforcement of the Act by Defendants and any person acting in concert with them or pursuant to the private right of action contained in the Act; C. Award Plaintiff the costs of the litigation, including reasonable 27 Case 1:17-cv-00326-DKW-KSC Document 1 Filed 07/12/17 Page 28 of 31 PageID #: 28 attorneys’ fees and expenses under 42 U.S.C. § 1988; D. Enter preliminary and permanent injunctions ordering Defendant Ige to disgorge federal funds the State of Hawaii has received from the United States Department of Health and Human Services and other federal offices in an appropriate amount and in excess of $75,000, penalizing them for the injury they threaten to cause Plaintiffs and others, and prohibiting the receipt of further funding until they have remedied that injury, and until they have brought state law into compliance with 42 U.S.C. § 238n; and E. Award any and all other relief the Court deems just and proper. Plaintiffs demand a jury for all issues so triable. Respectfully submitted on this 12th day of July, 2017. /s/ James Hochberg James Hochberg Haw. Bar No. 3686 JAMES HOCHBERG, A.A.L. Bishop Street Tower, Ste 2100 700 Bishop Street Honolulu, HI 96813 (808) 534-1514 (808) 538-3075 (fax) jim@jameshochberglaw.com 28 Case 1:17-cv-00326-DKW-KSC Document 1 Filed 07/12/17 Page 29 of 31 Kevin H. Theriot* AZ Bar No. 030446 Kenneth Connelly* AZ Bar No. 025420 Alliance Defending Freedom 15100 N. 90th Street Scottsdale, AZ 85260 480.444.0020 480.444.0028 (fax) ktheriot@ADFlegal.org kconnelly@ADFlegal.org Anne O’Connor* California Bar No. 135341 New Jersey Bar No. 7371997 NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES 5601 Southpoint Centre Blvd. Fredericksburg, VA 22407 (540) 372-3930 AOConnor@nifla.org Attorneys for Plaintiffs *Applications for Admission Pro Hac Vice forthcoming 29 PageID #: 29 Case Document 1 Filed 07/12/17 Page 30 of 31 PageID 30 DECLARATION UNDER PENALTY 0F PERJURY I hereby declare under penalty of perjury, including pursuant to 28 U.S.C. 1746, that the foregoing allegations with respect to the National Institute of Family Life Advocates (NIFLA) and its members are true and correct. Executed on the day of July, 2017, in the United States '4 Thornas A. Glessner. Esq. President of NIFLA On behalf of NIFLA Case Document 1 Filed 07/12/17 Page 31 of 31 PageID 31 DECLARATION UNDER PENALTY OF PERJU RY I hereby declare under penalty of perjury, including pursuant to 28 U.S.C. 1746, that the foregoing allegations with respect to Calvary Chapel Pearl Harbor, A Place for Women in Waipio, are true and correct. Executed on the day of July, 2017, in the United States mm Sue Skinner Director Calvary Chapel Pearl Harbor, A Place for Women in Waipio