Case 1:17-cv-00326-DKW-KSC Document 30 Filed 09/08/17 Page 1 of 24 James Hochberg Haw. Bar No. 3686 JAMES HOCHBERG, A.A.L., LLLC Bishop Street Tower, Ste 2100 700 Bishop Street Honolulu, HI 96813 (808) 534-1514 (808) 538-3075 (fax) jim@jameshochberglaw.com PageID #: 329 Kevin H. Theriot** AZ Bar No. 030446 Kenneth Connelly** AZ Bar No. 025420 ELISSA M. GRAVES** AZ BAR NO. 030670 ALLIANCE DEFENDING FREEDOM 15100 N. 90TH STREET Scottsdale, AZ 85260 (480) 444-0020 (480) 445-0028 (fax) ktheriot@ADFlegal.org kconnelly@ADFlegal.org egraves@ADFlegal.org Attorneys for Plaintiffs 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, 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. Civil Action No. 17-00326-DKW-KSC REPLY BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Case 1:17-cv-00326-DKW-KSC Document 30 Filed 09/08/17 Page 2 of 24 PageID #: 330 TABLE OF CONTENTS TABLE OF AUTHORITIES ..................................................................................ii INTRODUCTION....................................................................................................1 ARGUMENT ............................................................................................................2 I. PLAINTIFFS HAVE DEMONSTRATED A LIKELIHOOD OF SUCCESS ON THE MERITS OF THEIR FIRST AMENDMENT FREE SPEECH CLAIM. ..............................................................................4 A. As a Content- and Viewpoint-Based Regulation, the Act is Subject to Strict Scrutiny. ..................................................................4 1. The Act is a Content-Based Regulation. .................................5 2. Unlike the FACT Act, The Act is a Viewpoint-Based Regulation. .................................................................................6 B. The Act Fails Strict Scrutiny. ...........................................................11 C. Becerra Does Not Support Subjecting Plaintiff Non-Medical Centers to the Act’s Disclosures.......................................................13 II. PLAINTIFFS HAVE DEMONSTRATED A LIKELIHOOD OF SUCCESS ON THE MERITS OF THEIR FIRST AMENDMENT FREE EXERCISE CLAIM. .......................................................................14 III. PLAINTIFFS SATISFY ALL OTHER INJUNCTION FACTORS. .......................................................................................................................16 i Case 1:17-cv-00326-DKW-KSC Document 30 Filed 09/08/17 Page 3 of 24 PageID #: 331 TABLE OF AUTHORITIES Cases: Agency for International Development v. Alliance for Open Society International, Inc., 133 S. Ct. 2321 (2013).................................................................................4, 5 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) ......................................................................... 3 Angelotti Chiropractic, Inc. v. Baker, 791 F.3d 1075 (9th Cir. 2015) ......................................................................... 3 Brown v. Entertainment Merchants Association, 131 S. Ct. 2729 (2011)...................................................................................11 Elrod v. Burns, 427 U.S. 347 (1976).......................................................................................17 Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) .................................................................................15, 16 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006).................................................................................11, 12 GoTo.com, Inc. v. Walt Disney Co, 202 F.3d 1199 (9th Cir. 2000) .....................................................................2, 3 Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012).................................................................................14, 15 Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston, 515 U.S. 557 (1995).........................................................................................4 Klein v. City of San Clemente, 584 F.3d 1196 (9th Cir. 2009) .......................................................................17 Lambs Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993)...................................................................................6, 11 Matal v. Tam, 137 S. Ct. 1744 (2017).................................................................................2, 9 ii Case 1:17-cv-00326-DKW-KSC Document 30 Filed 09/08/17 Page 4 of 24 PageID #: 332 NIFLA v. Harris, 839 F.3d 823 (9th Cir. 2016) ..................................................................passim NIFLA v. Rauner, No. 16-cv-50310, (ECF No. 65) (N.D. Ill. July 19, 2017) ............................13 R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377 (1992)...............................................................................6, 7, 11 Reed v. Town of Gilbert, Arizona, 135 S. Ct. 2218 (2015).................................................................................5, 6 Riley v. National Federation of the Blind of North Carolina, Inc., 487 U.S. 781 (1988).........................................................................................5 Sierra Forest Legacy v. Rey, 577 F.3d 1015 (9th Cir. 2009) .........................................................................2 Sorrell v. IMS Health Inc., 564 U.S. 552 (2011).........................................................................................7 Thompson v. Western States Medical Center, 535 U.S. 357 (2002).......................................................................................12 Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017)...................................................................................16 West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).........................................................................................4 Wooley v. Maynard, 430 U.S. 705 (1977).........................................................................................4 State Statutes: Hawaii Revised Statutes § 453-16 ...........................................................................17 iii Case 1:17-cv-00326-DKW-KSC Document 30 Filed 09/08/17 Page 5 of 24 PageID #: 333 INTRODUCTION Plaintiffs Calvary Chapel Pearl Harbor Church and NIFLA exist to pursue their religious mission, which includes saving lives and advancing their pro-life beliefs by serving at-risk women and their children with alternatives to abortion. Hawaii Senate Bill 501 (attached as Ex. 1, hereinafter the “Act”) directly sabotages that mission, compelling Plaintiffs to recite a government-scripted message which connects pregnant women with state-sponsored “comprehensive family planning services,” such as abortion and abortifacient drugs. See id. Because such services run contrary to Plaintiffs’ sincerely held religious beliefs, they cannot effectively advertise for them, as the Act requires. Fortunately, they do not have to, as the First Amendment rights to free speech and free exercise of religion prevent such compulsion. In their Opposition to Plaintiffs’ Motion for Preliminary Injunction (hereinafter “Opp’n” and “Mot.” respectively) Defendants deny these constitutional harms by taking refuge in the Ninth Circuit’s decision in NIFLA v. Harris, 839 F.3d 823 (9th Cir. 2016) (hereinafter “Becerra”), claiming Becerra “controls the fate of the Motion at issue here.” Opp’n at 13. Defendants are mistaken. While the Ninth Circuit was presented with a California state regulation—the FACT Act—that was similar in some respects to the Act, its holding in Becerra is no bar to relief for Plaintiffs, given the factual and legal distinctions between the two cases. The record in this case reveals that the Act is content-based and viewpoint discriminatory, and therefore a different calculus than that employed by the 1 Case 1:17-cv-00326-DKW-KSC Document 30 Filed 09/08/17 Page 6 of 24 PageID #: 334 Becerra court is required. Further, the Act directly interferes with the religious exercise, beliefs, and internal decisions of a Christian church in its faith and mission. As well, the Act compels nonmedical pregnancy centers to advertise for a government agency that facilitates the provision of abortion and abortifacient medications, an onerous conscription unsupported by Becerra or any other legal precedent. Finally, the Supreme Court’s recent ruling in Matal v. Tam, 137 S. Ct. 1744 (2017)—decided after Becerra—confirms that even professional speech, if regulated by viewpoint, requires strict scrutiny or at the very least a form of heightened scrutiny more robust than the intermediate scrutiny applied by the Becerra court. Because the Act cannot withstand such scrutiny, Plaintiffs have demonstrated a likelihood of success on the merits of their claims. Taken together with their satisfaction of all other injunction factors, Plaintiffs warrant a preliminary injunction in this matter. ARGUMENT “The sole purpose of a preliminary injunction is to preserve the status quo ante litem pending a determination of the action on the merits.” Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1023 (9th Cir. 2009). The status quo “refers not simply to any situation before the filing of a lawsuit, but instead to the last uncontested status which preceded the pending controversy.” GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 2 Case 1:17-cv-00326-DKW-KSC Document 30 Filed 09/08/17 Page 7 of 24 PageID #: 335 1199, 1210 (9th Cir. 2000) (internal quotations and citation omitted). 1 In this case the status quo is the state of affairs before the Act went into effect. Plaintiffs can obtain a preliminary injunction by showing they are “likely to succeed on the merits, . . . (are) likely to suffer irreparable harm in the absence of preliminary relief,” “the balance of equities tips in [their favor],” and “an injunction is in the public interest.” Angelotti Chiropractic, Inc. v. Baker, 791 F.3d 1075, 1081 (9th Cir. 2015) (quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011)). Alternatively, if Plaintiffs show “serious questions going to the merits and a balance of hardships that tips sharply towards” them, a preliminary injunction will be warranted, so long as they can satisfy the other injunction factors. Cottrell, 632 F.3d at 1135. Plaintiffs satisfy each of the requirements of either inquiry, and thus the Act should be enjoined until their claims can be fully and finally adjudicated before this Court. 1 Defendants’ contention that the status quo is represented by the “Act . . . continu[ing] in full force and effect,” Opp’n at 19, cannot be sustained. See GoTo.com, 202 F.3d at 1210 (rejecting as “without merit” a similar contention because it “would lead to absurd situations, in which plaintiffs could never [seek a preliminary injunction] once infringing conduct had begun”). Indeed, their argument is particularly wanting here, where Plaintiffs filed suit on July 12, 2017, just hours after the Act became law. 3 Case 1:17-cv-00326-DKW-KSC Document 30 Filed 09/08/17 Page 8 of 24 I. PageID #: 336 PLAINTIFFS HAVE DEMONSTRATED A LIKELIHOOD OF SUCCESS ON THE MERITS OF THEIR FIRST AMENDMENT FREE SPEECH CLAIM. A. As a Content- and Viewpoint-Based Regulation, the Act is Subject to Strict Scrutiny. The Act compels Plaintiffs to recite government-scripted messages that are effectively advertisements for abortion and abortifacient drugs. But because Plaintiffs cannot do so without violating their most sacred religious beliefs, they are left with a Hobson’s choice: either violate their faith by acquiescing to compelled speech, or violate their faith by closing down their ministry and no longer ministering to women and children—acts of service they believe Scripture calls them to do. Fortunately, the Free Speech Clause of the First Amendment does not permit Hawaii to so compel Plaintiffs. The Supreme Court has explained that the “right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind.’” Wooley v. Maynard, 430 U.S. 705, 714 (1977) (citing W.V. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943)). Plaintiffs are thus free to choose what to say and “what not to say” without government interference or sanction. Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Grp. of Bos., 515 U.S. 557, 573 (1995) (internal quotation marks omitted). Indeed, “[i]t is a basic First Amendment principle that freedom of speech prohibits the government from telling people what they must say.” Agency for Int’l Dev. v. 4 Case 1:17-cv-00326-DKW-KSC Document 30 Filed 09/08/17 Page 9 of 24 PageID #: 337 Alliance for Open Soc’y Int’l, Inc., 133 S. Ct. 2321, 2327 (2013) (internal quotation marks and citation omitted). But the Act ignores these axiomatic strictures, regulating Plaintiffs’ speech based on both content and viewpoint. As such it is subject to the most searching of judicial examinations, strict scrutiny. See Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2227, 2230 (2015) (establishing that both content and viewpoint discrimination demand strict scrutiny). 1. The Act is a Content-Based Regulation. The Act is a content-based regulation because it provides a script for Plaintiffs to recite.2 See Riley v. Nat’l Fed. of the Blind of N.C., Inc., 487 U.S. 781, 795 (1988) (stating that “[m]andating speech that a speaker would not otherwise make necessarily alters the content of the speech”). The Act is also content based because its application turns on whether an entity discusses one particular issue—pregnancy. See Reed, 135 S. Ct. at 2227 (holding that “government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed”). The Becerra court agreed that the similarly worded California regulation— the FACT Act—was content based; accordingly, the Act is as well. See Becerra, 839 F.3d at 823. Ordinarily, under extant and controlling Supreme Court precedent—Reed, 135 S. Ct. at 2227—such a conclusion would mandate that the Act 2 Defendants do not, and cannot, argue that the Act is not content-based. 5 Case 1:17-cv-00326-DKW-KSC Document 30 Filed 09/08/17 Page 10 of 24 338 PageID #: be subjected to strict scrutiny. But the Becerra court, even while noting Reed’s holding that “[c]ontent based laws . . . are presumptively unconstitutional,” went on to hold that the Ninth Circuit had, “[s]ince Reed[,] . . . recognized that not all content based regulations merit strict scrutiny.” Becerra, 839 F.3d at 836-37 (citing Reed, 135 S. Ct. at 2226). Accordingly, after concluding that the FACT Act was not viewpoint-based (because it “applie[d] to all licensed and unlicensed facilities, regardless of what, if any, objections they may have to certain family-planning services”), the Becerra court applied intermediate scrutiny to what it deemed a regulation of professional speech. Becerra, 839 F.3d at 839-842. Defendants’ assertion that Becerra mandates an identical outcome here, see Opp’n at 20, rests on the assumption that the Act engages in only content-based discrimination. But the Act also engages in viewpoint discrimination, rendering Becerra inapposite on this point, thereby subjecting it to strict scrutiny. 2. Unlike the FACT Act, The Act is a Viewpoint-Based Regulation. Government may not regulate speech “based on hostility—or favoritism— towards the underlying message.” R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 430–31 (1992); see also Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993) (stating that the “First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others”) (internal quotation marks and citation omitted). “Viewpoint discrimination” 6 Case 1:17-cv-00326-DKW-KSC Document 30 Filed 09/08/17 Page 11 of 24 339 PageID #: demands strict scrutiny because it “often indicates a legislative effort to skew public debate on an issue.” R.A.V., 505 U.S. at 430–31 (1992) (internal quotation marks and citations omitted). Here, by compelling Plaintiffs to effectively advertise for a government agency that facilitates abortion, Defendants have improperly dictated the preferred government viewpoint in the manner forbidden by the R.A.V. Court. The legislative history of the Act reveals that it was specially intended to make pro-life pregnancy centers advertise for abortion and abortifacient drugs. This obvious purpose is sufficient to establish viewpoint discrimination beyond dispute. See Sorrell v. IMS Health Inc., 564 U.S. 552, 562 (2011) (confirming that a law’s “purpose[]” “may render it unconstitutional,” and finding infirm a law that “impose[d] burdens . . . based on the content of speech and . . . a particular viewpoint”). Indeed, the record is replete with examples of purposeful viewpoint discrimination. For instance, the new statutory category created by the Act, a “limited service pregnancy center,” was clearly conceived with only pro-life centers in mind, and not entities like Planned Parenthood that “provide abortion services or abortion referrals.” Ex. 2, Senate Standing Committee Report No. 315.3 Further, testimony 3 Defendants state that the Act was introduced to “amend the statutory duties imposed on ‘limited service pregnancy centers.’” Opp’n at 3 (emphasis added). Not so. The Act birthed this statutory category. See Ex. 3, Excerpt of HRS Index (revealing that no such definition existed in Hawaii statutory law prior to the Act’s introduction). 7 Case 1:17-cv-00326-DKW-KSC Document 30 Filed 09/08/17 Page 12 of 24 340 PageID #: from the Act’s inception establishes that this new statutory category was nothing but a pretense to punish the disfavored viewpoint held by Plaintiffs. 4 Perhaps most telling, Planned Parenthood was personally consulted by legislators during the drafting and hearing process as to what it would permit with respect to the regulation of Plaintiffs. During the April 5, 2017 House Judiciary Committee hearing on the Act, Representative Buenaventura asked Laurie Field of Planned Parenthood whether, assuming changes were made to the services provided by pregnancy centers, Planned Parenthood “would . . . allow [pro-life pregnancy centers] to not have to post these signs?” See Decl. of Stacey Jimenez, ¶32. It would be difficult to conceive of a more blatant example of viewpoint discrimination and outright collusion between the state and its favored view.5 4 See, e.g., Ex. 4, Test. of Laurie Field, Hawaii Legislative Dir. and Pub. Affairs Manager, Planned Parenthood Votes Northwest and Hawaii (alleging that limited service pregnancy centers, or “crisis pregnancy centers,” “are offering women biased, misleading, and even false pregnancy and health care information”); Ex. 5, Test. of Ann S. Freed, Co-Chair, Hawaii Women’s Coalition (referring to “crisis pregnancy centers,” alleging they “push a fanatical religious anti-choice agenda”); Ex. 6, Test. of Cathy Betts, Exec. Dir., Hawaii State Comm’n on the Status of Women (testifying that “crisis pregnancy centers” “are commonly tied to religious organizations with stanch [sic] positions on contraceptive use and reproductive health care”). 5 There is more. When misleading testimony was presented about “A Place for Woman in Waipio,” its Director of Operations, Stacey Jimenez, attempted to rebut the falsehoods. But her testimony was ultimately censored and left out of the public record. Decl. of Stacey Jimenez, ¶¶24-26. Finally, other testimony in opposition to the Act, although timely and conforming, was not properly considered by the Committee and posted late to the record. Id. at ¶28. 8 Case 1:17-cv-00326-DKW-KSC Document 30 Filed 09/08/17 Page 13 of 24 341 PageID #: The legislative approach taken with respect to the Act therefore goes far beyond merely enacting government policy after robust debate, and reveals animus against the disfavored viewpoint. Taken in its totality, the record demonstrates that the state played favorites in the highly contentious abortion debate, resulting in private citizens being compelled to recite a government script at odds with their religious beliefs. Thus Defendants’ argument that the Act is viewpoint neutral is contradicted by the evidence. See Matal, 137 S. Ct. at 1766 (Kennedy, J., concurring) (stating that a “subject . . . defined by content and then regulated . . . by mandating only one sort of comment is not viewpoint neutral”). Advertising for the State’s pro-abortion agency, after all, is itself a viewpoint. See Matal, 137 S. Ct. at 1757 (stating that the Court’s “cases use the term ‘viewpoint’ discrimination in a broad sense” and concluding in that case that a regulation prohibiting disparagement was infirm because “[g]iving offense is a viewpoint”). And while the Act purports to provide “women in Hawaii” with “accurate health information” so they “are able to make personal reproductive health decisions,” see Ex. 1, it actually does no such thing, because its speech mandate runs in only one direction—toward the provision of abortion and abortifacient drugs. This is undeniable—facilities performing abortion or dispensing abortifacient drugs are neither required to recite any health disclosures regarding the potential physical, psychological, and emotional harms of abortion, nor are they required to refer their 9 Case 1:17-cv-00326-DKW-KSC Document 30 Filed 09/08/17 Page 14 of 24 342 PageID #: customers to Plaintiffs’ centers or recite alternatives to abortion such as adoption.6 Put simply, then, the Act reveals that in the state’s eyes, there is one—and only one—acceptable viewpoint on the difficult and controversial subject of abortion. Because of this patent viewpoint discrimination, Becerra is no bar to Plaintiffs’ motion for preliminary injunction. But Becerra is inapplicable for another, independent reason. The Becerra court concluded that the FACT Act applied “equally to clinics that offer abortion and contraception as it does to clinics that oppose those same services.” 839 F.3d at 836. Not so here, where the exemption for “healthcare facilit[ies] . . . provid[ing] comprehensive healthcare,” see Ex. 1, gives a definitional pass to abortion clinics. In a “heads I win, tails you lose” maneuver, the state defines “comprehensive family planning services” to include abortion—the favored viewpoint. Id. 7 Thus Plaintiffs’ 6 This “one-way ratchet” is particularly telling in that the legislature was presented with extensive testimony detailing the harms of abortion, and the peculiar imbalance of the Act. See, e.g., Ex. 7, Test. of Pastor Derald Skinner, Calvary Chapel Pearl Harbor (detailing abortion harms); Ex. 8, Test. of Fern Mossman, President, Hawaii Federation of Republican Women (same); Ex. 9, Test. of Ruth Prinzivalli, President of the Pearson Foundation of HI, Inc. (same); Ex. 10, Test. of Chris Jimenez, Admin. Pastor of Calvary Chapel Pearl Harbor (noting that the Act “clearly targets pregnancy centers rather than forcing complete information across the entire sector”); Ex. 11, Test. of Joy Wright, Malama Pregnancy Center of Maui (pointing out the Act’s stark imbalance). 7 Defendants posit that Planned Parenthood is subject to the Act’s disclosure requirement because it falls under the definition of “limited service pregnancy center.” See Opp’n at 21, n.6. But given the legislative history and text of the Act, Defendants’ asseveration is dubious and cannot be taken at face value. The Act was initiated solely to regulate pro-life pregnancy centers. See supra at 8-9. Moreover, 10 Case 1:17-cv-00326-DKW-KSC Document 30 Filed 09/08/17 Page 15 of 24 343 PageID #: pro-life clinics are uniquely burdened by the law as a consequence of their views, making the Act subject to strict scrutiny. B. The Act Fails Strict Scrutiny. Plaintiffs have already demonstrated that the Act cannot survive strict scrutiny. See Pls.’ Mem. in Supp. of Mot. for Prelim. Inj. (hereinafter “Mem.”) at 17-24. Put succinctly, Defendants have proffered no compelling interest and cannot establish narrow tailoring. 8 Defendants have only compounded these failures in their Opposition. In fact, by proffering only an aspirational goal for greater public knowledge of health information as a compelling interest, see Opp’n at 22, n.7, Defendants have confirmed that there is no “actual problem in need of solving,” and therefore the Act’s speech compulsion cannot be justified. Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2738 (2011); see also Gonzales v. O “comprehensive health care” is nowhere defined in the Act or anywhere else in the statutory scheme, making the determination as to whether Planned Parenthood is covered by the Act, or exempted under its broad “health care facility” carve out, far from routine. Ex. 1 at §321-A(2). Finally, even if Planned Parenthood is covered by the Act, viewpoint discrimination still obtains. Abortion clinics by definition will offer all described services and therefore not violate the act, which was designed to punish only the “wrong view.” The Act cannot constitutionally “favor” the abortion viewpoint “at the expense” of Plaintiffs’ pro-life viewpoint. Lamb’s Chapel, 508 U.S. at 394. Such “favoritism” towards the pro-abortion view, and against a religious viewpoint on life, violates all pretense of viewpoint neutrality. R.A.V., 505 U.S. at 430–31. 8 Even the Becerra court never found the FACT Act’s required advertisement was a compelling interest, but rather that it served a substantial interest under intermediate scrutiny. See Becerra, 839 F.3d at 841. Nor did the Becerra court find that California had used the least restrictive means to advance its interest. Id. at 842. 11 Case 1:17-cv-00326-DKW-KSC Document 30 Filed 09/08/17 Page 16 of 24 344 PageID #: Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 438 (2006) (holding the “invocation of . . . general interests, standing alone, is not enough”).9 Plaintiffs’ assertion that it has employed the “least restrictive alternative,” see Opp’n at 22, n.7, is similarly unavailing. By resorting to speech regulations as their first mode of advancing the state’s interest, Defendants signal that they have left untried the many available constitutional options otherwise at their disposal. See Thompson v. W. States Med. Ctr., 535 U.S. 357, 373 (2002) (stating that “[i]f the First Amendment means anything, it means that the regulation of speech must be a last—not first—resort”). Thus, because Defendants cannot overcome strict or even heightened scrutiny, Plaintiffs are likely to succeed on the merits of their free speech claim. 10 At a bare 9 The stark underinclusiveness of the Act betrays the fact that Hawaii has no compelling or even substantial interest to serve. For if its interest were so urgent, it would not have restricted its enlistment of broadcasters to a small number of religious non-profits possessing limited budgets and advertising reach. The Act’s underinclusiveness is further demonstrated by its broad exemption for healthcare providers, none of whom are required to refer to the state’s website, despite the fact that the Act purports to help “low-income women.” Ex. 1. 10 Plaintiffs have already established that the Act does not implicate professional speech, because Hawaii lacks the licensing scheme found so central to the Becerra court. See Mem. at 25. But even if this Court were to disagree, the Act’s viewpoint discrimination compels a level of review that is more rigorous than the intermediate scrutiny applied in Becerra. In Matal, decided since the Becerra court reviewed the FACT Act, five justices agreed that even commercial speech is subject to heightened or strict scrutiny if the regulation at issue is viewpoint discriminatory. See 137 S. Ct. at 1744 (J. Kennedy, with Ginsburg, Sotomayor, and Kagan, J.J.) (holding that “discrimination based on viewpoint . . . remains of serious concern in the commercial context”); id. at 1769 (Thomas, J., concurring in part and concurring in the judgment) 12 Case 1:17-cv-00326-DKW-KSC Document 30 Filed 09/08/17 Page 17 of 24 345 PageID #: minimum, they have certainly raised serious questions going to the merits of their claims. C. Becerra Does Not Support Subjecting Plaintiff Non-Medical Centers to the Act’s Disclosures. Neither Becerra nor any other court has upheld the imposition of an abortion advertisement or referral script for facilities resembling Plaintiffs’ non-medical centers, which means that Defendants are bereft of any legal justification for such an affront. The FACT Act required California’s unlicensed centers, which did not offer any medical services, to state that they were “not licensed as a medical facility.” Becerra, 839 F.3d at 830. The Becerra court upheld that requirement, finding that California had 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.” Id. at 843. The court further found that the “Unlicensed Notice,” which was “only one sentence long,” was narrowly tailored. Id. (stating that “when the government seeks to restrict truthful speech in order to suppress the ideas it conveys, strict scrutiny is appropriate” even if the speech is commercial). Thus, “the prevailing view of a majority of the Supreme Court is that content-based laws that discriminate based on point of view, even if for the purpose of regulating commercial or professional speech, are still subject to strict scrutiny.” NIFLA v. Rauner, No. 16-cv-50310 (N.D. Ill. July 19, 2017), ECF No. 65 (applying strict scrutiny and granting a preliminary injunction to NIFLA plaintiffs who challenged an amendment to a state conscience statute that required them to refer for abortion or discuss it as a legitimate treatment option). For the same reasons discussed above, the Act cannot overcome strict scrutiny or any form of heightened scrutiny. 13 Case 1:17-cv-00326-DKW-KSC Document 30 Filed 09/08/17 Page 18 of 24 346 PageID #: Here, however, unlike in Becerra, the state of Hawaii saddles non-medical centers—which resemble California’s unlicensed clinics and provide only material and emotional succor to needy and vulnerable women—with the burden of directing women to a government agency that will fund abortions. At the same time these centers hand out diapers, baby clothes, and loving guidance and counseling to expecting mothers in hopes that they might choose life for their children, the state of Hawaii illogically compels them to effectively advertise for abortion. Despite Defendants’ attempt to dismiss this aspect of Becerra as irrelevant, see Opp’n at 27, n.9, it is dispositive, dictating the conclusion that Hawaii has no interest, compelling or otherwise, to aggressively encroach upon Plaintiffs’ non-medical centers in this manner. II. PLAINTIFFS HAVE DEMONSTRATED A LIKELIHOOD OF SUCCESS ON THE MERITS OF THEIR FIRST AMENDMENT FREE EXERCISE CLAIM. Plaintiffs have already demonstrated a likelihood of success on the merits of their free exercise claim. See Mem. at 27-30. But it bears repeating here that the Act’s constitutional infirmity is particularly egregious with respect to Plaintiff Calvary Chapel, whose center, A Place for Women in Waipio, is a ministry at the heart of the church’s religious outreach. Because the Act compels Calvary Chapel to effectively refer or advertise for abortion at the government’s behest, it is a classic instance of “government interference with an internal church decision that affects 14 Case 1:17-cv-00326-DKW-KSC Document 30 Filed 09/08/17 Page 19 of 24 347 PageID #: the faith and mission of the church itself,” which is impermissible under the Free Exercise clause. Hosanna-Tabor Evangelical Lutheran Church and Sch. v. EEOC, 565 U.S. 171, 190 (2012).11 Defendants misunderstand Hosanna-Tabor, urging a crabbed restriction that the decision applies to the ministerial exception and no more. Opp’n at 16-17. Hosanna-Tabor reiterates decades of Supreme Court authority on church autonomy, which runs independent of Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). Put simply, matters of religious beliefs, ecclesiastical operation, and church polity are sacrosanct from government intrusion, and the Supreme Court merely recognized in Hosanna-Tabor that the “ministerial exception” fit naturally into this broader protection for churches. Notably, the cases cited by Defendants, see Opp’n at 15-16, address zoning issues—an area clearly unrelated to theological beliefs and communications about those beliefs. From this Defendants make the fantastic leap to say a church must post on its wall a message directing women to a government agency that refers for abortion and abortifacient drugs—precisely what the church believes to be sin. By this reasoning, a Catholic church could be compelled to communicate that its limits 11 Plaintiffs do not contend, as Defendants characterize their argument, for an “across-the-board exemption . . . to Smith.” Rather, Plaintiffs maintain that the government may not compel churches to believe, act, or speak contrary to their doctrine and mission consistent with Smith and the Supreme Court’s free exercise jurisprudence more broadly. 15 Case 1:17-cv-00326-DKW-KSC Document 30 Filed 09/08/17 Page 20 of 24 348 PageID #: on priests being male are sexist, and an Orthodox Jew or Muslim could be compelled to communicate a government message on where to obtain pork products. This case could not be more different than what Smith intended, and the Supreme Court has affirmed as much on multiple occasions post-Smith. See, e.g., Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2021 (2017) (cautioning that not every “application of a valid and neutral law of general applicability is necessarily constitutional under the Free Exercise Clause,” and noting that whereas Smith “concerned government regulation of physical acts,” a different calculus applied when “government interference” affecting the “faith and mission of the church” was involved). Ultimately, Defendants’ talismanic invocation of Smith cannot cure the free exercise violation perpetrated by the Act. Properly deprived of that defense, the Act must be subjected to strict scrutiny, which it cannot overcome. See supra at 11-13.12 III. PLAINTIFFS SATISFY ALL OTHER INJUNCTION FACTORS. Plaintiffs have shown they are likely to succeed on the merits of their claims or that at least serious questions going to the merits exist. Plaintiffs also comfortably 12 Defendants claim that the Act does not “prevent[] Calvary Chapel from espousing its views and beliefs to its members, clients, or patients,” and that its “internal teachings, workings, and mission . . . are free to remain the same.” Opp’n at 17. In other words, Calvary Chapel is free to believe and act as it wishes, so long as it participates in the sins favored by the state by posting a political sign on its walls. This assertion fails the test of common sense as well as hornbook constitutional law. 16 Case 1:17-cv-00326-DKW-KSC Document 30 Filed 09/08/17 Page 21 of 24 349 PageID #: satisfy all remaining injunction factors. Plaintiffs will suffer irreparable harm, as the “loss of First Amendment freedoms, for even minimal periods of time, constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). Furthermore, the balance of hardships tips sharply in favor of Plaintiffs. The private right of action contained in the Act, with its lack of a noncompliance notice or waiting period and the possibility of treble damages and recovery of attorneys’ fees, is a threat to the very existence of Plaintiffs, while the state at most will experience a slight delay in compelling Plaintiffs to recite a message (the substantive contents of which can no doubt be independently discovered through a simple internet search) that has never heretofore been deemed essential since Hawaii legalized abortion in 1970, almost five decades ago. See Haw. Rev. Stat. § 453-16. Finally, because this Circuit has “consistently recognized the significant public interest in upholding free speech principles,” granting Plaintiffs’ Motion is in the public interest. Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009) (internal quotations and citation omitted). Conclusion For the foregoing reasons, Plaintiffs respectfully request that the Court enter a preliminary injunction against enforcement of the Act. 17 Case 1:17-cv-00326-DKW-KSC Document 30 Filed 09/08/17 Page 22 of 24 350 Respectfully submitted on this 8th day of September, 2017. /s/ James Hochberg James Hochberg Haw. Bar No. 3686 JAMES HOCHBERG, A.A.L., LLLC Bishop Street Tower, Ste 2100 700 Bishop Street Honolulu, HI 96813 (808) 534-1514 (808) 538-3075 (fax) jim@jameshochberglaw.com Kevin H. Theriot** AZ Bar No. 030446 Kenneth Connelly** AZ Bar No. 025420 ELISSA M. GRAVES** AZ. BAR NO. 030670 ALLIANCE DEFENDING FREEDOM 15100 N. 90th Street Scottsdale, AZ 85260 (480) 444-0020 (480) 444-0028 (fax) ktheriot@ADFlegal.org kconnelly@ADFlegal.org egraves@ADFlegal.org Attorneys for Plaintiffs **Admitted Pro Hac Vice 18 PageID #: Case 1:17-cv-00326-DKW-KSC Document 30 Filed 09/08/17 Page 23 of 24 351 PageID #: CERTIFICATE OF SERVICE I hereby certify that, on the dates and by the methods of service noted below, a true and correct copy of the foregoing was served on the following at their last known addresses: Served electronically through CM/ECF Skyler G. Cruz skyler.g.cruz@hawaii.gov Kaliko’onalani D. Fernandes kaliko.d.fernandes@hawaii.gov Deirdre Marie-Iha deidre-marie-iha@hawaii.gov State of Hawaii Department of the Attorney General 425 Queen Street Honolulu, HI 96813 Attorneys for Defendants DATED: September 08, 2017 /s James Hochberg JAMES HOCHBERG, A.A.L., LLLC Bishop Street Tower, Ste 2100 700 Bishop Street Honolulu, HI 96813 (808) 534-1514 (808) 538-3075 (fax) jim@jameshochberglaw.com 19 Case 1:17-cv-00326-DKW-KSC Document 30 Filed 09/08/17 Page 24 of 24 352 PageID #: CERTIFICATE OF WORD COUNT I hereby certify pursuant to L.R. 7.5(e) of the Local Rules of Practice for the United States District Court for the District of Hawai’i that the following document is typed in 14-point Times New Roman font and contains 4491 words, as determined by the word count tool of the word processing system used to produce said document, in compliance with the applicable word processing system used to produce said document, in compliance with the applicable work limitation set forth in L.R. 7.5(b). DATED: September 08, 2017 /s James Hochberg JAMES HOCHBERG, A.A.L., LLLC Bishop Street Tower, Ste 2100 700 Bishop Street Honolulu, HI 96813 (808) 534-1514 (808) 538-3075 (fax) jim@jameshochberglaw.com 20 Case 1:17-cv-00326-DKW-KSC Document 30-1 Filed 09/08/17 Page 1 of 4 353 PageID #: 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, Plaintiffs v. Civil Action No. 17-00326-DKW-KSC DECLARATION OF JAMES HOCHBERG 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. I, James Hochberg, declare as follows: 1. I am one of the attorneys representing Plaintiffs in this matter. 2. Attached hereto as Exhibit 1 is a true and correct copy of Senate Bill 501 (2017), available at http://www.capitol.hawaii.gov/session2017/bills/SB501 _CD1_.pdf. 3. Attached hereto as Exhibit 2 is a true and correct copy of Senate Standing Committee Report No. 315, available at http://www.capitol.hawaii.gov/ session2017/CommReports/SB501_SD1_SSCR315_.htm. Case 1:17-cv-00326-DKW-KSC Document 30-1 Filed 09/08/17 Page 2 of 4 354 4. PageID #: Attached hereto as Exhibit 3 is a true and correct copy of an excerpt from the Index to the Hawaii Revised Statutes, available at http://www.capitol .hawaii.gov/docs/HRS_Index.pdf. 5. Attached hereto as Exhibit 4 is a true and correct copy of the testimony of Laurie Field, Hawaii Legislative Director and Public Affairs Manager, Planned Parenthood Votes Northwest and Hawaii, available at http://www.capitol.hawaii.gov/Session2017/Testimony/SB501 _TESTIMONY _CPH-JDL_02-03-17.PDF. 6. Attached hereto as Exhibit 5 is a true and correct copy of the testimony of Ann S. Freed, Co-Chair, Hawaii Women’s Coalition, available at http://www.capitol.hawaii.gov/Session2017/Testimony /SB501_ TESTIMONY _CPH-JDL_02-03-17.PDF. 7. Attached hereto as Exhibit 6 is a true and correct copy of the testimony of Cathy Betts, Executive Director, Hawaii State Commission on the Status of Women, available at http://www.capitol.hawaii.gov/Session2017 /Testimony/ SB501_TESTIMONY _CPH-JDL_02-03-17.PDF. 8. Attached hereto as Exhibit 7 is a true and correct copy of testimony of Pastor Derald Skinner, Calvary Chapel Pearl Harbor, available at http://www.capitol.hawaii.gov/Session2017/Testimony/ SB501_TESTIMONY _CPH-JDL_02-03-17.PDF. 2 Case 1:17-cv-00326-DKW-KSC Document 30-1 Filed 09/08/17 Page 3 of 4 355 9. PageID #: Attached hereto as Exhibit 8 is a true and correct copy of the testimony of Fern Mossman, President, Hawaii Federation of Republican Women, available at http://www.capitol.hawaii.gov/Session2017/Testimony/ SB501_TESTIMONY _CPH-JDL_02-03-17.PDF. 10. Attached hereto as Exhibit 9 is a true and correct copy of the testimony of Ruth Prinzivalli, President of the Pearson Foundation of HI, Inc., available at http://www.capitol.hawaii.gov/Session2017/Testimony/SB501 _TESTIMONY _CPH-JDL_02-03-17.PDF. 11. Attached hereto as Exhibit 10 is a true and correct copy of the testimony of Chris Jimenez, Administrative Pastor of Calvary Chapel Pearl Harbor, available at http://www.capitol.hawaii.gov /Session2017/ Testimony/SB501 _TESTIMONY _CPH-JDL_02-03-17.PDF. 12. Attached hereto as Exhibit 11 is a true and correct copy of the testimony of Joy Wright, Malama Pregnancy Center of Maui, available at http://www. capitol.hawaii.gov/Session2017/Testimony/SB501 _TESTIMONY _CPH-JDL_02-03-17.PDF. 3 Case 1:17-cv-00326-DKW-KSC Document 30-1 Filed 09/08/17 Page 4 of 4 356 PageID #: Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct to the best of my personal knowledge. Executed on September 8, 2017. /s/ James Hochberg James Hochberg 4 Case Document 30-2 Filed 09/08/17 Page 1 of 10 PageID 357 THE SENATE 501 LEGISLATURE, 2017 . 0 SD. 1 STATE OF HAWAII H.D. 2 on. 1 A BILL FOR AN ACT RELATING TO HEALTH. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII: SECTION 1. The legislature finds that all women in Hawaii, regardless of income, should have meaningful access to effective reproductive health services. Public programs providing insurance coverage and direct services for reproductive health care and counseling to eligible, low?income women are currently available through the department of health and department of human services. Thousands of women in Hawaii are in need of publicly?funded family planning services, contraception services and education, pregnancy?related services, prenatal care, and birth-related services. 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 available to provide them with contraception, health education and counseling, family planning, prenatal care, pregnancy-related, and birth-related services. 2017-2606 SB501 CD1 SMA-3.doc 1 EXHIBIT 1 Case Document 30-2 Filed 09/08/17 Page 2 of 10 PageID 358 8.8. NO. 393-1 .0: .09 Because family planning decisions are time sensitive and care early in pregnancy is important, Hawaii must make every possible effort to advise women of all available reproductive health programs. In Hawaii, low-income women can receive immediate access to free or low?cost comprehensive family planning services and pregnancy?related care through and the department of health's family planning program. Providers who contract with these programs are able to immediately enroll patients in these programs at the time of a health center visit. 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 health decisions. The purpose of this Act is to ensure that women in Hawaii are able to make personal reproductive health decisions with 2017? 2606 SB501 CD1 SMA- 3. 2 Case Document 30-2 Filed 09/08/17 Page 3 of 10 PageID 359 8.(332$ full and accurate information regarding their rights to access the full range of health care services that are available. SECTION 2. Chapter 321, Hawaii Revised Statutes, is amended by adding two new sections to be appropriately designated and to read as follows: Limited service pregnancy centers; notice of reproductive health services. For purposes of this section, "limited service pregnancy center" or "center": (1) Means 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; and (2) Shall not include a health care facility. For the pprposes of this paragraph, a "health care facility" 2017-2606 CD1 3 Case Document 30-2 Filed 09/08/17 Page 4 of 10 PageID 360 Page? 8.8. NO. 01 .1 0:9: F3939 4N4 means any facility designed to provide comprehensive health care, including but noE 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. Every 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: "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. 2017-2606 SB501 CD1 4 Case Document 30-2 Filed 09/08/17 Page 5 of 10 PageID 361 Pages 8.8. NO. 01 01 .D.1 .D.2 .D.1 Only ultrasounds performed by qualified healthcare professionals and read by licensed clinicians should be considered medically accurate." The notice shall contain the internet address for online medical assistance applications and the statewide phone number for medical assistance applications. The information required by subsection shall 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 I (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. 2017-2606 CD1 5 Case Document 30-2 Filed 09/08/17 Page 6 of 10 PageID 362 8.8. NO. 01 O1 OIUJ .D.1 .D.2 .D.1 No limited service pregnancy center that collects health information from any individual seeking or receiving its services shall disclose any individually identifiable health information to any other person, entity, or organization without express written authorization from the subject individual. Any disclosure made under this section shall be limited by the express terms of the written authorization and all applicable state and federal laws and regulations, including the federal Health Insurance Portability and Accountability Act of 1996 and title 45 Code of Federal Regulations part 164. 19) A limited service pregnancy center that provides or assists in the provision of pregnancy testing shall provide the individual tested with a free 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. Upon receipt of a written reqpest from an individual to examine or copy all or part of the individual's recorded health information or other information retained by a limited service pregnancy center, the center shall, as required under the circumstances but in no case later than fifteen working days after receiving the request: 2017-2606 CD1 6 Case Document 30-2 Filed 09/08/17 Page 7 of 10 PageID 363 Page? 8.8. NO. 01 UFJFJ (1) Make the information available for examination by the individual during regular business hours; (2) Provide a free copy to the individual, if requested; (3) Inform the individual if the information does not exist or cannot be found; and (4) If the center does not maintain the record or information! inform the individual of that fact and provide the name and address of the entity that maintains the record or information. Limited service pregnancy centers; enforcement; private right of action. 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 corrected as of the expiration of the thirty-day_n9ticerperiod, the attorney general may bring an action in the district court of the district in which the center is located to enforce this section. 2017-2606 CD1 '7 Case Document 30-2 Filed 09/08/17 Page 8 of 10 PageID 364 8.8. NO. 01 0.1.0) 9.0.0 A civil penalty imposed pursuant to this subsection shall be deposited to the credit of the general fund. 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 purposes of this subsection, "person" includes a natural or legal person. The enforcement procedure and remedies provided by this section shall be in addition to any other procedure or 2017?2606 CD1 8 Case Document 30-2 Filed 09/08/17 Page 9 of 10 PageID 365 Fag? 8.8. NO. 393. remedy that may be available to the State or a person aggrieved by a violation of this chapter. This section and section 321-A are not intended to require {egulation or oversight of limited service pregnancy centers by the department of health." SECTION 3. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act. SECTION 4. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable. SECTION 5. New statutory material is underscored. SECTION 6. This Act shall take effect upon its approval. 2017-2606 CD1 SMA-3.doc 9 Case Document 30-2 Filed 09/08/17 Page 10 of 10 PagelD 8.8. NO. 3?73- Report Title: Limited Service Pregnancy Centers; Disclosures; Privacy; Remedy Description: Requires all limited service pregnancy centers to disclose the availability of and enrollment information for reproductive health services. Defines limited service pregnancy center. Establishes privacy and disclosure requirements for individual records and information. Authorizes civil penalties and civil actions for enforcement and remedy. (CD1) The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent. 2017-2606 CD1 9?5/20170ase Document 09/08/17 Page 1 of 3 PagelD 367 STAND. COM. REP. NO. 315 Honolulu, Hawaii RE: No. 501 (.001 CW Honorable Ronald D. Kouchi President of the Senate Twenty-Ninth State Legislature Regular Session of 2017 State of Hawaii Sir: Your Committees on Commerce, Consumer Protection, and Health and Judiciary and Labor, to which was referred S.B. No. 501 entitled: BILL FOR AN ACT RELATING TO beg leave to report as follows: The purpose and intent of this measure 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 healthcare services that are available. Your Committees received testimony in support of this measure from Hawaii State Commission on the Status of Women, Planned Parenthood Votes Northwest and Hawaii, American Congress of Obstetricians and Gynecologists, LGBT Caucus of the Democratic Party of Hawai5i, Hawaii Women's Coalition, National Women's Political Caucus Hawaii Chapter, Young Progressives Demanding Action, and seventeen individuals. Your Committees received testimony in opposition to this measure from the Aloha Pregnancy Care and Counseling Center, Hawaii Family Forum, Calvary Chapel Pearl Harbor, A Place for Women in Waipio, Hawaii Federation of Republican Women, Malama Pregnancy Center of Maui, Hawaii Catholic Conference, Pearson Foundation of HT, Inc., Hawaii Life Alliance, Aloha Pregnancy Center, and thirty?three individuals. Your Committees received comments on this measure from the Department of Health and Department of Human Services. Your Committees find that anyone seeking healthcare should receive comprehensive, accurate, unbiased information in a confidential setting, and that reproductive healthcare is no different. When women are fully informed, they can better make the best decisions for themselves and their health. Your Committees further find that regardless of where a woman seeks information about reproductive health, she should receive information I 2 1/3 Document 09/08/17 Page 2 of 3 PagelD about the full range of options, inq??ding how to obtain health insurance coverage should she be uninsured. Your Committees also find that thousands of women in the State are in need of publicly?funded family planning services, contraception services and education, abortion services, prenatal care, and birth?related services. In Hawaii, low-income women can receive immediate access to free or low-cost comprehensive family planning services and pregnancy?related care through and the Department of Health's family planning program. Your Committees find, however, that many women remain unaware of the public programs available to provide them with family planning and pregnancy?related services. Your Committees appreciate the abundance of testimony submitted on this measure. Your Committees have heard the concerns expressed regarding this measure, and note that the measure does not require limited pregnancy centers to change the services that they provide. Because family planning decisions are time sensitive and early care in pregnancy is important, the State must make every effort possible to advise women of all available reproductive health programs. Your Committees have amended this measure by: (1) Adding language to the de?nition of "limited service pregnancy center" or "center" to specify that these centers do not include centers that are contracted providers with a Medicaid health plan; (2) Amending the notice language that limited service pregnancy centers are required to disseminate on site by: (A) Inserting language indicating that the clinic does not provide abortion services or abortion referrals, and providing information that only ultrasounds performed by qualified healthcare professionals and read by licensed clinicians should be considered medically accurate; and (B) Removing language that directed individuals to contact appropriate division eligibility offices to determine whether they qualify for free or low-cost family planning services and replacing it with language indicating that individuals should apply on?line at mybenefits.hawaii.gov for medical insurance coverage; and (3) Making technical, nonsubstantive amendments for the purposes of clarity and consistency. As affirmed by the records of votes of the members of your Committees on Commerce, Consumer Protection, and Health and Judiciary and Labor that are attached to this report, your Committees are in accord with the intent 2/3 9?5?2017Case Document 30?C?gi1l?d 09/08/17 Page 3 of 3 PagelD and purpose of S.B. No. 501, as herein, and recommend that it pass Second Reading in the form attached hereto as S.B. No. 501, S.D. l, and be referred to your Committee on Ways and Means. Respectfully submitted on behalf of the members of the Committees on Commerce, Consumer Protection, and Health and Judiciary and Labor, GILBERT S.C. Chair ROSALYN H. BAKER, Chair 3/3 PagelD Case Document 30-4 Filed 09/08/17 Page 1 of 8 370 HAWAII REVISED STATUTES INDEX 4?51 EXHIBIT 3 Case Document 30-4 Filed 09/08/17 Page 2 of 8 ABANDONMENT Aircraft see AIRPORTS Animals, 143-26 Boats see BOATS AND BOATING Children see MINORS Construction projects contractor's license suspension, 444-17 Escheat see ESCHEAT Franchises gasoline dealers, Mines and minerals strip mining, 181-6 Minors see MINORS Motor vehicles see MOTOR VEHICLES Ocean and submerged lands leasing abandonment of leased areas, 190D-23 Streets and highways disposition, [71-52, 264?3 Unclaimed property see UNCLAIMED PROPERTY ABATEMENT Actions dismissal or discontinuance see ACTIONS stays see STAYS survival of actions see ACTIONS Airport zoning violations, 262-10 Amusement rides dangerous conditions, 397-4 Dwellings un?t for human habitation repair. closing, and demolition, 53-60 Hazardous substance releases see HAZARDOUS MATERIALS, Environmental response Health nuisances see NUISANCES Junkyard control, 264-88 Nuisances see NUISANCES Occupational safety and health dangerous conditions, 396-4 modi?cation of abatement requirements, 396-11 ABORTIONS Chiropractors license suspension or revocation, 442-9 Concealing corpse of infant, 709-901 De?ned, 453-16 Minors consent, 577A-2 PagelD INDEX Naturopathic physicians license revocation or suspension, 455-11 Nonviable fetus termination of pregnancy, 453?16 Osteopathic physicians and surgeons license revocation or suspension, 460-12 Physicians license revocation or suspension, 453-8 Reports, 338-9 When allowed, 453-16 ABUSE AND NEGLECT Abuse of family and household members see DOMESTIC ABUSE Adult protective services see AGED PERSONS Child abuse see CHILD ABUSE Protective orders see DOMESTIC ABUSE Sexual abuse see SEXUAL OFFENSES Shelter facilities landlord tenant code exemption, 521-7 unlawful entry. 708-8165 State plan objectives and policies, 226-22 ACCEPTANCE see COMMERCIAL CODE ACCESS AND EGRESS Actions limitation of actions, 657-31 when action accrues, 657-33 Beaches see PARKS AND RECREATION Civil defense restrictions, 128-6 Fire escapes and exits rules, 132-2 Public lands landlocked public lands acquisition of access, 171-50 Trails see PARKS AND RECREATION ACCESSORIES Accomplices see PENAL CODE Conspiracy see CONSPIRACY ACCIDENTS Airports and aviation see AIRPORTS Boating accidents see BOATS AND BOATING Death investigation by coroner, 841-3 recovery of evidence, 841-13 BIRDS-cont?d Game birds?cont?d tagging carcasses, what birds may be hunted, 1830-31 when hunting prohibited, 183D-31 Homing pigeons shooting prohibited, 183D-33 Hunting, see Game birds, above Importation game birds, 183D-35 wild birds, 183D-63 Inspections shooting preserves, 183D-42 Labels transportation of carcasses, Meat and meat products carcasses purchased or received from farms, Nests destroying nests, Permits obtaining game birds from state game farm, l83D-40 pheasants, 142412 pigeons, 142-102 taking wild birds, 183D-61 Pest control household pests, 4601?1 Pheasants aviary game birds, 142-111 permits, 142?112 Pigeons amounts allowed, 142-103 de?nitions, 142-101 exercise, racing, and training, 142?103 homing pigeons, 183D-33 penalties for violations, 183D-5 permits, 142-102 shooting pigeons prohibited, 183D-33 Poultry see POULTRY Predators destruction, Reports shooting preserve operators, 183D-39 Rules aviary game birds, 142?112 pigeons, 142?102 Sales carcaSs for corrsumption, imported game birds, 183D-3S Shooting preserves importation, 183D-35 inspections, 183D-42 nonresident hunters, 183D-34 private and commercial preserves, 183D-34 reports by operators, 183D-39 when exclusive property, State bird, 5-17 Transportation requirements of common carriers, Case Document 30-4 Filed 09/08/17 Page 3 of 8 PagelD 372 INDEX BIRDS-cont?d Transportation?cont?d wild birds. Wild birds breeding in captivity, 183D-63 de?ned, 183D-l destruction of predators, l83D-65 export, hunting prohibited, importation, 183D-63 penalties for violation, permits, 183D-6l taking, injuring, etc., l83D-62 transportation from state, BIRTHS Birth control information to marriage applicants, 572-5 insurance coverage, 16.6, 43221-6045, 432D-23 minors, 577A-2, 577A-3, 577A-4 prophylactics sale through vending machines, 321-115 sterilization of incapacitated persons see PROBATE CODE Birth defects hypothyroidism and phenylketonuria, 321-291 information and education services. 321?331 newborn hearing screening de?nitions, 321-361 duties of department, 321662 rules, 321-363 registry and statistical data, 321-331 testing programs, 321?331 Certi?cates see VITAL STATISTICS Hypothyroidism newborn infant testing, 321-291 In vitro fertilization procedure health maintenance organizations, 432D-23 insurance, 432:1-604 Maternity bene?ts prepaid health care plans, 393-7 public employees, 88-505 temporary disability bene?ts, 392?21 Midwives see MIDWIVES Mortality and morbidity studies see MEDICAL RECORDS Phenylketonuria newborn infant testing, 321-291 Reports compulsory registration, 338-5 failure to report, 338-30 false reports, 333-30 naturopathic physicians, 455-8 osteopathic physicians and surgeons, 460-11 physicians, 325-53 77 Case Document 30-4 Filed 09/08/17 Page 4 of 8 373 PagelD INDEX BISHOP MUSEUNI Biological survey program, 6E-61 Designation as state museum of natural and cultural history, 6E-40 Historic property preservation depository for specimens and objects, 6E-6 BLIND PERSONS Canes rights of blind person not carrying cane, 347-19 use in public places, 347-16, 347-17 violations, 347-18 De?nitions blind, 347-2 visually handicapped, 347-] Education house parents for statewide center, 302A-639 instructional materials, 103-72 private instruction in homes, 347-9 special education see SCHOOLS Elections assistance to voters, 11-139 registration to vote. 11-15, 11-16 waiver of signature in poll book, 11-136 Employment agencies for information and aid, 347-7 home industries, 347-7 income tax credit, 235-5531 legislative ?ndings, 347?20 vendors on public property, 102-2, 102?14 workshops, 347-8 Equal acc0mmodations legislative declaration, 347-20 penalties, 347-14 public conveyance fares, 347-15 real property transactions, 515-3 right to, 347-13, 347-19 violations, 347-135 glasses distribution, 347-10 Federal aid obtaining federal bene?ts, 347-5 Funds blind shop revolving and handicraft fund, 347-12 Randolph-Sheppard revolving account, 347-125 Guide dogs discrimination in real property transactions, 515-3 liability for damages done to premises or facilities, 347-13 license designations, 143-4 quarantine, 142-55 right of blind person to be accompanied by guide dog, 347-13 rights of blind persons not using guide dogs, 347-19 78 BLIND Hotels right to equal accommodations, 347-13 Human services department general powers, 26-14, 347-3 public assistance payments inalienable, 346?33 records, 347-6 vocational rehabilitation, 347-4 Legislative ?ndings, 347?20 Motor vehicles caution of driver approaching blind persons, 347-17 Prevention of blindness cosmetics, 328?18 donations, 347?10 health department programs, 321-101 human services department, 347-6 investigations, 347- 10 newborn infants, 321-106 Public assistance choice of optometric services, 346-61 examination of blind persons, 346-62 payments inalienable, 346?33, 347-11 Real property transactions discrimination prohibited, 515?3 Records con?dentiality, 347-11 human services department, 347-6 Registry duties of department, 347-6 Taxation de?nitions,. 235-1 general excise taxes exemption, 237-24 rate of tax, 237-17 income tax exemption, 235-54 real property tax exemption, 246?31 vocational: rehabilitation referral tax credit, 235-5591 Vendors on public property exceptions to concession bidding, 102-2 requirements, 1-02?14 school premises, 302A-412 Vocational. rehabilitation. human services department, 347-4 income tax credit, 235-5591 Workers? compensation loss of vision, 386-22 permanent partial disability, 386-32 permanent total disability, 386-31 Workshops bli-nd shop revolving and handicraft fund, 347-12 employment in workshops, 347-8 payments to blind inalienable, 346-33 BLOOD Blood banks limited liability, 327-51 rejection of donors, 325?4 LIMITED LIABILITY cont?d Organization?cont?d status as legal entity, 428-201 Partnerships conversion to limited liability company authorization to convert, 425-191, 428-902 effective date, 428?902 effect of conversion, 428-903 notice of conversion, 428-908 requirements, 428-902 conversion to limited liability partnership, 425-173 creation of limited liability partnership annual statements, 425-157, 425?171 certi?cate amendment, 425-154 contents, 425-153 ?ling, 425-153, 425-158 form, 425?160 restated, 425-154 citation of part, 425?151 de?nitions, 425-152 dissolution administrative termination, 425-171 lien for taxes and fees, 425-167 notice, 425-166 withdrawal of foreign partnership, 425-172 duty of director, 425?159 false statements and records, 425-170 ?ling fees, 425-169 laws of state apply, 425?161, 425-162 liability false records, 425-170 foreign partnerships, 425-162 insurance, 425-178 laws of state apply,-425-161 limitations, 425-175 merger into limited liability company articles of merger, 428-905 authorization to merge, 425-191, 425D-l 109 effective date, 428?904 effect of merger, 428-906 notice of merger, 428-908 plan of merger, 428?904 requirements, 428-904 minors and incompetent persons, 425-163 names, 425-164, 425-165 partners liability, 425?170, 425-175 minors and incompetents, 425-163 prohibited activities, 425-180 records, 425-168 registration amendment, 425-156 cancellation, 425-171 conversions, 425-173 errors, 425-176 ?ling fees, 425-169 Case Document 30-4 Filed 09/08/17 Page 5 of 8 PagelD 374 INDEX LIMITED LIABILITY COMPANIES- cont?d Partnerships?cont?d creation of limited liability partnership? cont?d registration -cont? requirements, 425-155, 425-l58 transacting business without, 425-173, 425-174 revocation of filing, 425-179 rules, 425-164 termination of partnership upon conversion, 428-902 Pensions powers of companies, 428-111 Personal property power to purchase and dispose of, 428-111 Powers general powers of companies, 428-111 Purposes of limited liability companies, 428-1 1 1 Real property actions requiring consent of members, 428-404 foreign limited liability companies, 428-1003 limitation on member's power over, 428?501 member?s or manager?s power to transfer, 428?301 ownership generally, 428-501 power to purchase and dispose of, 428-111 Records access by members, 428-408 correction, 428-208 false records, 425?170. 428-1302 partnerships, 425-168, 425-170 prima facie evidence of facts, 428-1203 Reports contents of annual report, 428-210 failure or refusal to ?le, 425-171, 428-809, 428-1302 filing fees, 428-1301 ?ling requirements, 428-210 foreign limited liability companies, 428-1006 partnerships, 425-157, 425-171 Service of process agents change, 428-108 designation, 428-107 resignation, 428-109 service on, 428-110 manner of service, 428-110 partnerships, 425-172 Termination, see Dissolution, above Winding up administrative termination, 428?810 distribution of assets, 428-806 events causing dissolution and winding up, 428-801 right to wind up business, 428-802, 428-803 supervision, 428?803 539 Case Document 30-4 Filed 09/08/17 Page 6 of 8 PagelD 375 INDEX LIQUOR see ALCOHOLIC BEVERAGES LITERACY Adult education, 302A-433 Literacy and lifelong learning advisory council, 312?10 program, 312-8 trust fund, 312?9 Public?private partners for literacy trust fund establishment, 312?9 LITTERIN Anti-litter symbol designing and posting, 339?3 Beverage containers connecting devices, 339-22, 339-23 de?nitions, 339?21 restrictions, 339-7 Coordination of anti-litter efforts, 339-3 County powers, 339-2 Criminal littering elements of offense. 708-829 penalties, 708-829 Defense consent of property owner, 708-829 De?nitious, 29IC-132, 339-], 339-21, 708-829 Director powers and duties, 339-2, 339?3 Educational programs, 339-3 Enforcement assistance, 339-2 enforcement agency, 339-11 powers and duties, 339-2 Highways littering from vehicles, 339-4 Injunctions, 339-10 Landowner's responsibility for adjoining areas, 339-5 Lessee of property responsibility for adjoining areas. 339-5 Litter bag designing, 339-3 Litter receptacles damage or removal, 339-4 location, 339-6 Motor vehicles spilling loads from vehicles, 291C-131 throwing litter from vehicles, 29lC-132 Prohibitions, 339?4 Public places, 339-4 Rules, 339-2, 339?23 Violations beverage containers, 339-? citations, 339-9 criminal littering, 708n829 general penalties, 339-8 littering from vehicles. 29lC-131, plastic connecting devices, 3392, 339-24 prohibited acts, 339-4 responsibility of adjoining owners, 339-5 540 Waste management system see SOLID WASTE POLLUTION Waters of state, 339-4 LIVESTOCK Agricultural loans loans for purchase, 155-9 security for loans, 155-11 Agricultural parks see AGRICULTURAL PARKS Agriculture department powers and duties generally, 26-16 Animal diseases general provisions see ANIMALS tuberculosis bovine tuberculosis see CATTLE Brands earmarks record of earmarks, 142-41 fees, 142-41 felonious branding, 142-48 obliterating brands, 142-47 ownership and movement certi?cation, 142-49 recordation, 142-41 registration applications, l42~4l conflicring claims, 142-43 expiration, 142-42 reregistration, 142-42 right to brand, 142-43 using other?s brand, 142-45 using unregistered brands, 142-46 required, 142-41 right to brand, 142-43 slaughtered animals records, 159-15 report of brands, 146-22 retention of hide, 146?21 tuberculous cattle, 142-17 unbranded animals, 142-44 violations felonious branding, 142-48 obliterating brands, 142-47 using other?s brand, 142?45 using unregistered brands, 142-46 Cattle see CATTLE Conservation areas removal from, 183?19, 183-20 Cooperatives see AGRICULTURAL COOPERATIVES Estrays unbranded animals, 142-44 Feed see FEED see FENCES Storage?cont?d records, 161-36 registration, 161-39 Transportation adulterated or misbranded poultry, 161-25 carcasses not intended as human food, 161-37 cenditions of transporting, 161-30 dead, dying. disabled. or diseased poultry, 161-38 false shipper?s certi?cate, 161-26 good faith receiving of poultry, 161-47 inspections, 161-41 powers of department, 161-7 records, 161-36 transportation without inspection, 161-29 Veterinarians antemortem inspections, 161-21 assaulting or obstructing, 161?47 duty to examine and inspect, 161?27 employment. 161-6 post-mortem inspections, 161?22 refusal to stamp, mark, tag, or label, 161-27 sanitation inspections, 161-24 Violations bribery, 161-23 citations, 161-49, 161-50 complaints, 161-51 enforcement powers, 161-8 failure to appear and answer, 161-52 forgery or destroying of?cial marks, 161?26 illegal slaughter, sale, or transportation, 161?25 mandamus, [61-8 penalties for violation, 161-47 warrants, 161-49 Wholesalers records, 161-36 registration, 161-39 POWERS OF ATTORNEY Armed forces active duty state military extension where person missing in action, 657D62 Conveyances bureau recordation, 502-84 Credit sales enforceability of contract provisioos, 476-15 Disability or incapacity of principal, see Durable power of anomey, below Durable power of attorney accountability, 551D-3 acts bind principal and successors, 551D-2 applicability, 412:4-100, 551D-6 appointment of guardians, 551D-3 death of principal, 551D-4 de?nition, 551D-l designation, 551D-l affect of acts, 551D-2 form of writing, 551D-2.6 688 Case Document 30-4 Filed 09/08/17 Page 7 of 8 PagelD 376 INDEX POWERS OF Durable power of attomey?cont?d health care decisions, 551D-2.5, notice of death, disability, or incapacity of principal, 551D-4, 551D-5 proof of continuance of powers, revocation, 551D-4 short title, 551D-7 successors in interest, 551D-4 Mortgages powers under mortgage. 667?10 Registered lands, 501-174 Release of powers method of release not exclusive, 512-3 prior releases validated, 512-2 written instruments, 512?1 PREGNANCY Generally see BIRTHS Midwives see PREMARITAL AGREEMENTS see MARRIAGE PREPAID HEALTH CARE Administration of chapter, 393-31 Advisory council appointment, 393-7 Alcoholism substance abuse bene?ts, 393-7 Bene?ts collective bargaining agreements, 393-19 commencement of coverage, 393-14 continuation of coverage in case of inability to earn wages, 393-15 out of state plans, 393-20 required benefits, 393-7 workers? compensation coverage, 386-215 Collective bargaining bene?ts under, 393-19 right to, 393?2 Contractors pooled insurance, De?nitions, 393-3, 393-46 Dependents coverage, 393-21 Diagnostic laboratory services required bene?ts, 393-7 Director of labor and industrial relations enforcement of provisions, 393-31 powers and duties, 393-32 Domestic services excluded services, 393?5 Drug addiction substance abuse bene?ts, 393-7 Eligibility excluded services, 393-3, 393-5 exemptions, 393?17 individual employee waiver, 393-21 Case Document 30-4 Filed 09/08/17 Page 8 of 8 377 INDEX RESERVES Rental housing trust fund, 201F-5 Forests Research center for futures study, 222-3 see FORESTS Schools Natural area reserves system see SCHOOLS see NATURAL AREA RESERVES Securities commissioner of securities, 485?3 RESERVOIRS dealers and investment advisers, 485-16 Sentences expedited sentencing, 706-6063 Solid waste pollution see SOLID WASTE POLLUTION Special purpose revenue bonds annual report to legislature, 39A-1 Stadium authority, 109-3 State planning, 226-53 Status of women commission, 367-3 Strategic development corporation, 211F-15 Subdivisions annual report of subdivider, 484?9 Tax review commission, 232E-3 Tourism government expenditures, 201-97 Hawaii visitors and convention bureau, 203-2, 203-4 marketing and promotion, 201-95 marketing plan, 203-5 tourism of?ce, 201-98 training council, 373F-6 visitor impact management system, 201-96 Trail and access program, 198D-2, 19813?9 Transportation council, 279A-6 Transportation use special fund, Unemployment compensation see EMPLOYMENT SECURITY University of Hawaii see UNIVERSITY OF HAWAII Urban redevelopment and renewal redevelopment agencies, 53-19 Veterans of?ce of veterans services, 363-3 Water code see WATER RESOURCES Water pollution see WATER POLLUTION Wildlife revolving fund, 183D-10.5 Workers? compensation see COMPENSATION Youth services of?ce, REPUTATION Character evidence see RULES OF EVIDENCE Generally see CHARACTER AND REPUTATION Libel and slander see LIBEL AND SLANDER RESEARCH CORPORATION OF THE UNIVERSITY OF HAWAII see UNIVERSITY OF HAWAII 770 see DAMS RESIDENTIAL LANDLORD-TENANT CODE see IANDLORD AND TENANT RESIDENTIAL LEASEHOLDS Administration of provisions, 516?6 Applicability of chapter generally, 516-2 trusts and estates, 516?4 Assignment of leases rights of lessees, 516-63 Associations rights of lessees, 516?68 Bond issues general obligation bonds, 516-45 legal investments, 516-40 revenue bonds, 516-101 tax exemption, 516-41 Condemnation of development tracts actions parties to eminent domain actions, 516-56 applicability of part, 516-21 compensation to owners amount, 516-24 interest in compensation, 516~26 negotiations with lessees, 516-51 taxation, 516?27 compulsory conversion, 516-27 designation of land for acquisition, 51622 eminent domain time to bring action, 516-23 exchanges of land, 516-245 funds fee simple residential revolving fund, 516-44 investment by corporation, 516?42 security for funds deposited, 516-43 general obligation bonds issuance, 516-45 legal investments, 516?40 hearings, 516-22 income tax treatment, 235-13 interest vauired by corporation. 516-25 involuntary conversion, 516-27 leases authority to lease lots, 516-28, 516-31 legislative ?ndings and declaration, 516-83 lessees deposits may be required, 516-335 loans by corporation, 516-34 negotiations with lessors, 516?51 PagelD Case Document 30-5 Filed 09/08/17 Page 1 of 1 PagelD 378 Planned Parenthood Act. No matter what sitar-ad Pain-chm Hal-a Wait and Hut-ti To: Hawaii State Senate Committee on Commerce, Consumer Protection and Health Hearing Date/ Time: Friday, Feb. 3, 2017, 9:30 am. Place: Hawaii State Capitol, Rm. 229 Re: Testimony of Planned Parenthood Votes Northwest and Hawaii in strong support of S.B. 501, relating to Health Dear Chair Baker and Members of the Committee, Planned Parenthood Votes Northwest and Hawaii writes in strong support of S.B. 501, which seeks to require limited service pregnancy centers, otherwise known as ?crisis pregnancy centers,? to disclose the availability of publicly?funded family planning services and to establish privacy protections and pregnancy test disclosure requirements. S.B. 501 will go far to ensure that women have the information they need to make private, fair, informed choices about their health care. Anyone seeking health care should receive comprehensive, accurate, unbiased information in a con?dential setting. Reproductive health care is no different. When women are fully informed, they are better able to make the best decisions for themselves about their personal health. However, in Hawaii communities, limited service pregnancy centers are offering women biased, misleading, and even false pregnancy and health care information and denying women needed referrals for reproductive health services, and all the while failing to disclose that they are not actually licensed health care providers and have no duty to protect wot en?s pri? ate medical information. Women in Hawaii deserve better. S.B. 501 will put in place commonsense protections to ensure that any woman seeking pregnancy testing services receives the information she needs to make decisions about her reproductive health. Please support S.B. 501 to guarantee that all women receive the same basic standard of care. Thank you for this opportunity to testify. Sincerely, Laurie Field Hawaii Legislative Director and Public Affairs Manager EXHIBIT 4 Case Document 30-6 Filed 09/08/17 Page 1 of 1 PagelD 379 Hawaii Women's Coalition COMMITTEE ON COMMERCE, CONSUMER PROTECTION, AND HEALTH Senator Rosalyn H. Baker, Chair COMMITTEE ON JUDICIARY AND LABOR Senator Gilbert S.C. Keith-Agaran, Chair DATE: Friday, February 3, 2017 TIME: 9:30 AM PLACE: Conference Room 016 STRONG SUPPORT FOR $3501 Aloha Chairs Baker and Keith-Agaran, and members, The Coalition is in strong support of this bill which seeks to require limited service pregnancy centers, othenrvise known as ?crisis pregnancy centers," to disclose the availability of publicly-funded family planning services and to establish privacy protections and pregnancy test disclosure requirements. These Centers that exist throughout the country are dangerous, deceptive and too often unregulated. Numerous investigations have found this to be so. Here is one investigation in New York City: There are similar reports in California and many other states. These Centers prey on vulnerable women who are at critical points in their lives. They push a fanatical religious anti-choice agenda and are staffed by volunteers, many of them posing as medical personnel by wearing white coats and sporting stethoscopes. One documentary interviewed a woman who wanted an abortion and mistakenly went to one of these ?clinics" thinking she would get help. She was in a desperate ?nancial situation and could not support another child or miss work. The crisis center ?counseled" her into delaying the procedure and when she finally realized they were not going to help her, it was too late to terminate the pregnancy. This is a common tactic employed by these clinics when fear?based false information doesn't work to achieve their objectives. Please make these Centers tell the truth about who they really are require them to disclose the existence of real help, and real choices from family planning clinics and licensed medial professionals. Please pass this important bill out of committee. Mahalo for the opportunity to testify, Ann 8. Freed Co-Chair, Hawai?i Women's Coalition Contact: Phone: 808-623-5676 EXHIBIT 5 Case Document 30-7 Filed 09/08/17 Page 1 of 1 HAWAII STATE COMMISSION ON THE STATUS OF WOMEN Chair LESLIE WILKINS COMMISSIONERS: SHERRY CAMPAGNA CYD HOFFELD JUDY KERN MARILYN LEE AMY MONK LISA ELLEN SMITH Executive Director Catherine Betts. JD Email: Catherine.a.betts@hawaii.gov Visit us at: huma nservices.hawaii.gov 235 S. Beretania #407 Honolulu, HI 96313 Phone: 808-586-5758 FAX: 808-586-5756 PageID 380 February 3, 2017 To: Senator Rosalyn H. Baker, Chair Senator Clarence K. Nishihara, Vice Chair Members of the Senate Committee on Commerce, Consumer Protection and Health Senator Gilbert S.C. Keith-Agaran, Chair Senator Karl Rhoads, Vice Chair Members of the Senate Committee on Judiciary and Labor From: Cathy Betts Executive Director, Hawaii State Commission on the Status of Women Re: Testimy in Support, SB 50!, Relating gi?ealth Thank you for this opportunity to testify in strong support of SB 501, which would ensure women in Hawaii are provided medically accurate information regarding their reproductive health, including information on how to access the full range of healthcare services and programs available to them. Anyone seeking health care deserves to be provided with medically accurate, unbiased, and comprehensive information about their health and their choices. When individuals have a full range of information and are able to provide informed consent, they make better health choices for themselves and their families. Limited Service Pregnancy Centers, also called ?crisis pregnancy centers?, often utilize misleading and false information about reproductive health. Additionally, these centers are under no obligation to inform ?patients? that they are not actually licensed health care providers or practitioners, and that they have no duty to safeguard medical information provided to them. These centers are commonly tied to religious organizations with stanch positions on contraceptive use and reproductive health care. SB 501 provides common sense regulations and reasonable enforcement for these centers, which operate under the guise of helping vulnerable women and girls. The Commission strongly supports SB 501. Thank you for this opportunity to provide testimony in support. EXHIBIT 6 Case Document 30-8 Filed 09/08/17 Page 1 of 2 PagelD February 1, 2017 TESTIMONY TO THE SENATE COMMITTEE ON COMMITTEE ON COMMERCE, CONSUMER PROTECTION, AND HEALTH AND COMMITTEE ON JUDICIARY AND LABOR For Hearing on Friday, February 3, 2017, 9:30 Conference Room 016 By: Pastor Derald Skinner, Calvary Chapel Pearl Harbor Board President: A Place for Women in Waipio Re: Senate Bill No. 501 Relating to Health Dear CHAIRPERSON, ROSALYN H. BAKER, VICE CHAIR, CLARENCE K. NISHIHARA AND MEMBERS OF THE SENATE COMMITTEE ON COMMERCE, CONSUMER PROTECTION, AND HEALTH AND CHAIRPERSON, GILBERT S.C.KEITH-AGARAN, VICE CHAIR, KARL RHOADS AND THE OTHER MEMBERS OF THE SENATE COMMITTEE ON JUDICIARY AND LABOR: Thank you for the opportunity to testify IN OPPOSITION to 5.3. 501. As Pastor of Calvary Chapel Pearl Harbor and Board President of A Place For Women in Waipio that serves women and families dealing with unplanned pregnancies in our community, I definitely oppose H.B.501. According to the United States Constitution, Amendment I Conqress shall make no law respectinq an establishment of reliqion, or prohibitinq the free exercise thereof; or abridqinq the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. Calvary Chapel Pearl Harbor and one of it's ministries A Place for Women in Waipio believes and exercises the teaching of the Son of God, the Lord and Savior Jesus Christ, who said, "The thief does not come except to steal, and to kill, and to destroy. I have come that thev may have life, and that they may have it more abundantly. (John 10: 10) 94-1044 WAIPIO UKA STREET WAIPAHU. HI 96797 . 808-678'3994 CALVARYCHAPELPEARLHARBORCOM EXHIBIT 7 Case Document 30-8 Filed 09/08/17 Page 2 of 2 PagelD 382 In ministering to the community at large we always try to help the hurting, console the confused, comfort the wounded, feed the hungry, bring hope to the forgotten and peace to every heart. All of this is done without government intrusion; freedom is the bedrock to our republic. The freedom of religion is placed at the top of our United States Constitution; with that freedom of religion is our deep-seated belief in life, liberty and justice for all, whereas, we cannot and will not promote abortion, which is the killing of a precious, innocent little baby. Please pick up a baby today and look into its eyes and see life, love and helplessness. Let it be known first and foremost that our desire is not to fight with our Hawaii State Government, but rather to change the hearts to choose love and life for the unborn. I have seen abortion videos with the tearing and breaking of the baby's body parts from the womb; it is truly ghastly and I suggest you view it for conscience sake. Secondly, we counsel the women and men who regret what they have done; they come to us as broken people. Some have ventured into alcoholism, drug addiction, promiscuity resulting in STD's, emotional distress and depression especially at the time of the unbirthday of the aborted. Yet, when a decision is made to keep the baby and give this tiny little keiki love and life, no one is disappointed or depressed, challenged at times, but they?re always filled with joy! Every life challenge can be easily met through ohana, church and community, which includes ?We the People? of the State of Hawaii. We know this law is a duplicate from the State of California, which is now making its way through the court systems, costing tremendous legal fees until it reaches the Supreme Court of the United States of America. 5.8. 501 is not Constitutional, moral, or fiscally prudent. 5.3. 501 will not provide ?aloha? for all, it creates more problems than solutions; it is not needed and is unwanted. Faith based organizations and the State if Hawaii can work together resolving our differences without stepping on freedom. We hope and pray that you will halt and oppose SB. 501. Thank you for the opportunity to submit this testimony. 94?1044 WAIPIO UKA STREET WAIPAHU. HI 96797 0 808?678?3994 0 CALVARYCHAPELPEARLHARBOR.COM Case Document 30-9 Filed 09/08/17 Page 1 of 1 PagelD 383 TESTIMONY to Senate Committee on Commerce, Consumer Protection, and Health Senate Judiciary and Labor Committee Regarding: SB. 501 Relating to Health Friday, February 3, 2017 9:30 AM State Capitol Conference Room 016 Submitted in OPPOSITION by: Hawaii Federation of Republican Women Chairs Baker and Keith-Agaran; Vice Chairs Nishihara and Rhodes, and Committee Members: We OPPOSE 58501 Hawaii should not waste important time and funds to force this unconstitutional provision upon our residents. It is also abusive to the pro-life centers to threaten heavy fines if this coercive mandate isn't followed. Most of the organizations targeted in this bill have made a decision not to associate with government programs and reject government programs because they have determined that those programs and services have a high potential to harm women. This bill promotes services that can be harmful to the client/visitor's health. Warning signs would be more appropriately placed around facilities providing abortion and contraceptives since many of these services can lead to severe physical, emotional, and health risks including breast cancer, blood clots, stroke, suicidal inclinations, etc.. This overreach of legislation is abusive and has been found to be unconstitutional in other states. Similar bills have been struck down by the in Texas, Maryland, and New York. Vote NO on 53501. Respectfully submitted, Fern Mossman, President HFRW EXHIBIT 8 Case Document 30-10 Filed 09/08/17 Page 1 of 1 PageID 384 Testimony to Senate Committee on Commerce, Consumer Protection and Health Senate Judiciary and Labor Committee Regarding: 5.3. 501 Relating to Health 9:30 AM - - State Capitol Conference Room 016 Submitted in OPPOSITION BY: Ruth Prinzivalli, President of The Pearson Foundation of HI, lnc., Pregnancy Problem Centers To: Chairs Baker and Keith-Agaran; Vice Chairs Nishihara and Rhodes, and Committee Members: I strongly oppose $3501 The purpose of most Pregnancy Counseling Centers is to provide accurate and comprehensive information on all the options available when faced with an unplanned pregnancy, so that our clients can make an unpressured and educated decision. Most are staffed by trained volunteers who are dedicated to serving women and men who may be facing an unplanned pregnancy. We are aware of the many physical and side effects of taking the life of one?s own baby growing in her womb and we encourage our clients to carefully evaluate and understand all the options available to them so they can make an educated choice. To encourage, by posting (advertising) a method we feel is harmful to women just doesn't make sense. It also goes against our freedom of speech. Would you require a Vegan Restaurant or Health Food Store to post a list of all the Fast Food restaurants or Steak Houses in a prominent place on their premises? It just isn?t logical and it undermines the whole reason for these establishments which is to provide healthy alternatives. We don't prevent anyone from getting an abortion if that is what they decide they want. Anyone can just Google and find a location. But Pregnancy Counseling Centers shouldn?t be forced to advertise for them when we feel that it is extremely harmful to the well being of their clients. For many of us it is also a matter of what we hold in faith as Christians. You might have heard, going back to the 10 Commandments, "Thou Shalt Not Kill?. 50 by being forced to advertise Abortion, the killing of a baby in the womb, it goes against our Faith. I believe that then would be against our US Constitution as well. For these basic reasons, I hope you will reconsider this illogical bill, the purpose of which seems to only undermine these Pregnancy Centers. Please vote no. EXHIBIT 9 Case Document 30-11 Filed 09/08/17 Page 1 of 1 PageID 60 63062,? February 1, 2017 TESTIMONY TO THE SENATE COMMITTEE ON COMMITTEE ON COMMERCE, CONSUMER PROTECTION, AND HEALTH AND COMMITTEE ON JUDICIARY AND LABOR For Hearing on Friday, February 3, 2017 9:30 am, Conference Room 016 By: Chris Jimenez, Administrative Pastor, Calvary Chapel Pearl Harbor Senate Bill No. 501 Relating to Health Dear CHAIRPERSON, ROSALYN H. BAKER, VICE CHAIR, CLARENCE K. NISHIHARA AND MEMBERS OF THE SENATE COMMITTEE ON COMMERCE, CONSUMER PROTECTION, AND HEALTH AND CHAIRPERSON, GILBERT S.C.KEITH-AGARAN, VICE CHAIR, KARL RHOADS AND THE OTHER MEMBERS OF THE SENATE COMMITTEE ON JUDICIARY AND LABOR: Thank you for the opportunity to testify IN OPPOSITION to S.B.501 As one of the staff pastors for a church that operates a limited services pregnancy center, as de?ned in S.B.501, I?m absolutely opposed to this proposed bill. First, as a faith based ministry, protected by the First Amendment which guarantees freedom of religion, it is a matter of religious principle that we oppose abortion. Thus, being forced to refer women to organizations that perform abortions is a violation of a fundamental Constitutional right. It is also for this reason that this same law in California is being challenged, and will be fought all the way to the US Supreme Court. Secondly, this bill starts down a slippery slope. When the state begins to dictate what a religious organization mist say to someone we are counseling, where is the line drawn? At what point is the content of what we counsel legislated? At what point are we given a state approved script that must be followed? And why does this bill only target pregnancy centers? Why doesn?t this bill regulate the educational content being provided by Med-Quest providers? I don?t say this as a recommendation for a revised bill, as I fully oppose this legislation for the Constitutional reasons above. This point was merely made to point out the incompleteness, and one sided nature of the bill, which clearly targets pregnancy centers rather than forcing complete information dissemination across the entire sector. Finally, as a Hawaii taxpayer, it would be imprudent for the state to pass this legislation knowing that it is already being challenged in California, and headed to the US Supreme Court later this year. The state shouldn?t open itself to the cost of legal challenges until at least the California challenge has been decided. I hope these points will be given consideration, and that you will oppose SB. 501. 94?1044 WAIPIO UKA STREET WAIPAI-IU. HI 96797 0 808?678?3994 0 CALVARYCHAPELPEARLHARBORCOM EXHIBIT 1O Case Document 30-12 Filed 09/08/17 Page 1 of 2 PageID 386 Nahum PW cm cg Ill/lam} offering help hope TESTIMONY to Senate Committee on Commerce, Consumer Protection, and Health Senate Judiciary and Labor Committee Regarding: SB. 501 Relating to Health Friday, February 3, 2017 9:30 AM -- State Capitol Conference Room 016 Submitted in OPPOSITION by: Joy Wright, Malama Pregnancy Center of Maui Chairs Baker and Keith-Agaran; Vice Chairs Nishihara and Rhodes, and Committee Members: Thank you for the opportunity to testify in opposition to SE. 501. As the Executive Director of a pregnancy resource center that values the sanctity of life and the unborn I have serious concerns about this bill. One concern is that the proposed bill would effectively censor the voice of the pregnancy center to compelled speech which is a violation of the First Amendment. The First Amendment of the United States Constitution protects pregnancy centers from a law of this nature. The government is prohibited from compelling a faith based organization to give a message which is in direct opposition and violation of its fundamental principles. In addition, the proposed bill also violates First Amendment guarantees of freedom of religion. Pregnancy centers are faith based ministries that are life-af?rming and not in favor of abortion. The pregnancy center?s opposition to abortion simply translates that as a matter of religious principle they do not perform or refer for abortion. This law, if enacted, would mandate that such faith based ministries violate their religious convictions and become abortion referral agencies. The underlying truth of this bill is not dif?cult to identify. SB. 501 speci?cally targets Christian life?af?rming nonpro?t and privately ?mded pregnancy centers to; silence their voice and First Amendment right to oppose abortion, encourage potential clients to seek state funded programs that promote abortion, and lastly to force the center and its staff and volunteers to violate their convictions by referring clients for an abortion. Our state legislators need to stop bringing all of California's bad ideas to Hawaii. It is interesting to note that similar bills have been struck down in Texas, Ma?land, and New York. Hawaii should not waste important time and funds to force this unconstitutional provision upon our residents. It is irrational to continue to pursue this type of legislation. It is also abusive to the pro-life centers to threaten heavy ?nes if this coercive mandate isn't followed. Mailing: 1710 Ka?ahumanu PMB 423, Wailuku, HI 96793 Physical: 64 Central Avenue, Wailuku HI 96793 (808) 280-5810 EXHIBIT 11 Case Document 30-12 Filed 09/08/17 Page 2 of 2 PageID 387 mm PW Genie/v all Mam} offering help hope This bill is an insult to women and implies the need of oppressive government mandates to "take care" of them. Women are smart and can make the appropriate choices regarding service providers. It is a bias bill in that abortion providers and primary care clinics are excluded from the mandate. If lawmakers in Hawaii are proposing this bill, shouldn?t abortion providers post a sign notifying their clients of their rights, and alternative programs such as pregnancy centers that would allow them to exercise their reproductive right? Abortion and contraceptive sales staff should not expect free advertising in limited space that exists in pregnancy center. The government should not be allowed to interfere in the transactions of private organizations. Pregnancy centers should be afforded their First Amendment rights per the United States Constitution. This overreach affecting our choice to use limited service pregnancy centers is abusive and has been found to be unconstitutional in other states. Vote NO on SB501. Mailing: 1710 Ka?ahumanu PMB 423, Wailuku. HI 96793 Physical: 64 Central Avenue, Wailuku HI 96793 (808) 280-5810 Case 1:17-cv-00326-DKW-KSC Document 30-13 Filed 09/08/17 Page 1 of 11 388 PageID #: 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 dTh/a NIFLA, a Virginia corporation, Plaintiffs Civil Action No. 17-00326-DKW-KSC DECLARATION OF STACEY JIMENEZ 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. I, Stacey Jimenez,an adult resident ofthe State of Hawaii,state the following based on my personal knowledge: I am the Director of Operations for A Place for Women in Waipio, a pregnancy resource center that serves the Oahu community. 2. A Place for Women in Waipio is a ministry of Calvary Chapel Pearl Harbor, and is located in the church building, along with a host of other church ministries. Case 1:17-cv-00326-DKW-KSC Document 30-13 Filed 09/08/17 Page 2 of 11 389 3. PageID #: Calvary Chapel Pearl Harbor is a religious not-for-profit corporation located at 94-1044 Waipio Uka Street, Waipahu, HI 96797. 4. A Place for Women in Waipio provides pregnancy-related medical and non-medical information and services to our clients under the supervision of our executive director, Sue Skinner,in furtherance of our religious beliefs and prolife viewpoint. 5. We provide medical services, such as ultrasound examinations,under the supervision of our medical director, Dr. Vivien Wong. 6. We also provide urine pregnancy tests, which are currently self- administered by our clients. 7. Our non-medical services include pregnancy counseling, adoption referrals, abstinence education,post-abortive recovery classes for men and women, childbirth education classes, and the provision of various materials and supplies (including diapers and baby clothes)to pregnant women. Men can also take part in counseling sessions and receive baby items with women clients. 8. As a result of donor funding from people who share our pro-life convictions, A Place for Women in Waipio provides all its services free of charge It does not take any funds from clients,the State of Hawaii, or the federal government. 2 Case 1:17-cv-00326-DKW-KSC Document 30-13 Filed 09/08/17 Page 3 of 11 390 9. PageID #: As a ministry of Calvary Chapel, a Christian church, it is the mission of A Place for Women in Waipio to at all times reflect the love of Christ to all who come to see us, and to empower women with knowledge before they make a difficult decision about their health and the health of their unborn child. 10. More specifically, as stated on our 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." A Place for Woman, Mission Statement, http://aplaceforwomeninwaipio.com ! Who We Are/Missions Goals/index.html. 11. My sincerely held religious beliefs, and the beliefs professed by Calvary Chapel Pearl Harbor,include the conviction that all human life一from conception is a gift from God that should under no circumstances be destroyed by abortion,which we consider to be the killing of an innocent life that is at all times impermissible. 12. Because of our belief regarding the impermissibility of abortion,A Place for Women in Waipio never performs or refers for abortions. 3 Case 1:17-cv-00326-DKW-KSC Document 30-13 Filed 09/08/17 Page 4 of 11 391 13. PageID #: Our website clearly indicates that we do not perform or refer for abortions, and anyone seeking abortion information from us over the phone is told that we do not perform or refer for abortion. Our Limitation of Services form, which every client must sign before any counseling session can begin, also clearly states in bold print that we do not perform or refer for abortion. 14. A Place for Women in Waipio, as a matter of religious belief, also supports natural family planning as means 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 violate our religious beliefs to promote or provide artificial means of contraception 15. Complying with the compelled speech requirements of SB 501 in any manner would violate the sincerely held religious beliefs of Calvary Chapel Pearl Harbor and A Place for Women in Waipio. 16. During the House Health Committee hearing on February 2,2017(on HB663,the companion bill to SB 501), Morgan Trube, a former client of ours, testified negatively about her experience with us. Ms. Trube, who is currently the President ofPlanned Parenthood Generation Action, essentially gave the impression that A Place for Women in Waipio had manipulated or deceived her in some way during her visit with us, which was most certainly not the case 4 Case 1:17-cv-00326-DKW-KSC Document 30-13 Filed 09/08/17 Page 5 of 11 392 17. PageID #: In fact, Ms. Trube's negative testimony was diametrically opposed to the actual exit survey review she voluntarily provided to us on the day of her visit, which was highly complimentary of the services we provided her as well as the way we made her feel. 18. More specifically, Ms Trube had given our services the highest rating possible with respect to how comfortable she was in the counseling room, how much respect she felt we had treated her with, how much concern we expressed for her and her situation,how free she felt to express what she wanted for herself, how satisfied she was that we had provided her with the help and referrals she needed, and whether she would recommend A Place for Women in Waipio to friends. 19. On February 3,2017,the day after the hearing on HB663,the Senate held a joint committee hearing on SB5O 1, and Morgan Trube again shared her misleading testimony concerning her experience at A Place For Women in Waipio. 20. When my name was called to testify in opposition to 5B501,in order to counter what we deemed and what her exist survey established to be inaccurate testimony before the joint committee hearing,I began to share about the exit survey Morgan Trube gave to A Place For Women in Waipio on the day of her visit(which was as positive an exit survey as could be given); however, the committee chair, Senator Rosalyn Baker,firmly interrupted me, shut down my testimony, and told me to stand on my written testimony like so many others. 5 Case 1:17-cv-00326-DKW-KSC Document 30-13 Filed 09/08/17 Page 6 of 11 393 21. PageID #: I submitted testimony to the Senate Committee on Ways and Means一 which did include a summary of Morgan Trube's exit interview for its SB 501 hearing scheduled for February 23,2017 at 9:35 a.m. 22. But despite the fact that my testimony was properly submitted on time and according to the rules of the Senate,my testimony was never properly distributed to the Senators before the vote or posted to the public record. See Exhibit 12,which is a true and correct copy of the e-mail confirmation from mai1inglist@capito1.hawaii.gov confirming my on-time submission. 23. SB 501 was next heard by committee in the House of Representatives on March 16,2017 at the House Health Committee hearing 24. At the hearing on SB 501 in the House Health Committee,the chairman,Representative Della Belatti,announced that she had received a "cease and desist" notice regarding my testimony. Representative Belatti physically distributed my written testimony to the committee members at that time but she made it clear that my testimony would not be made part of the public record Then,just before I came up to speak,she sternly warned me not to "disclose publicly,private and protected information," apparently referring to the information Ms. Trube had already decided to make public,although her testimony was misleading,and mine was meant to set the record straight. 6 Case 1:17-cv-00326-DKW-KSC Document 30-13 Filed 09/08/17 Page 7 of 11 394 25. PageID #: I had heard rumors that there was something underway to keep my testimony about Ms. Trube's exit survey out of the proceedings, but neither I nor anyone from A Place for Women in Waipio had actually been given a copy of whatever it may have been. 26. Nonetheless, based on the "cease and desist"letter held by Chairman Belatti, my testimony concerning Ms. Trube's exit interview was excluded completely from the public record. 27. Later, my attorney received via e-mail a copy of the cease and desist letter from the private lawyer who wrote it on behalf of Ms. Trube, addressed to me at A P'ace for Women in Waipio and copied to several senators and representatives. 28. I know that a number of others opposed to SB 501一including other pregnancy resource centers一also submitted timely and conforming testimony whose submissions,while eventually posted in the record,were not posted in a timely manner and therefore not considered by the Senate Committee on Ways and Means prior to,or at,its hearing on February 23,2017. See,e.g., Exhibit 13, which is a true and correct copy of the e-mail confirmation from mailinglist@capito1.hawaii.gov,confirming the on-time submission of Joy Wright of Malama Pregnancy Center of Maui;Exhibit 14,which is a true and correct copy of the e-mail confirmation from mai1inglist@capitol.hawaii.gov,confirming the 7 Case 1:17-cv-00326-DKW-KSC Document 30-13 Filed 09/08/17 Page 8 of 11 395 PageID #: on-time submission of Ana Schaetzle, who is the Director of The Pregnancy Center in Kailua-Kona, Hawaii; Exhibit 15, which is a true and correct copy of the e-mail confirmation from mailinglist@capitol.hawaii.gov, confirming the on-time submission of Faith Nickelsen, RN, BSN, Nurse Manager, A Place for Women in Waipio. 29. The Hawaii Attorney General was asked by a Senator to provide a written opinion with regard to the Senate censorship of my testimony and other testimony in opposition to SB 501. 30. In that opinion the Office of the Attorney General concluded that, "[a]ssuming ... testimony is submitted in accordance with the applicable procedural rules prior to a legislative hearing, the Senate is not authorized by the constitutions, statutes or Senate rules to withhold, edit, or redact the content of the testimony submitted or to delay its distribution without violating the testifier's constitutional right offree speech." Exhibit 16 (Hawaii Attorney General Opinion re: Request for Advice on Public Testimony, dated March 29,2017)at 6 31. During my attendance at the various hearings on SB 501, it became clear to me that the bill was designed to impose speech and disclosure requirements only upon pro-life pregnancy resource centers. 32. During the April 5,2017 hearing on SB5O1 in the House Judiciary Committee, the committee members asked various testifiers questions. 8 Case 1:17-cv-00326-DKW-KSC Document 30-13 Filed 09/08/17 Page 9 of 11 396 PageID #: Representatives Joy San Buenaventura and Cynthia Thielen (both attorneys)asked a series of questions to the physician from the American Congress of Obstetricians and Gynecologists and the attorney for Planned Parenthood simultaneously. These questions included an inquiry into whether Planned Parenthood would accept certain proposed amendments to SB5O 1, culminating in Representative Buenaventura asking Laurie Field of Planned Parenthood,that assuming certain changes were made with respect to the services that limited service pregnancy centers offered,"Would you [Planned Parenthood]allow them to not have to post these signs?" This question and answer session made it abundantly clear to me that Planned Parenthood was the "force"behind SB 501,in that it was being asked as to what it would permit pro-life centers to do or not do. No one at A Place for Women in Waipio was ever similarly consulted, and to my knowledge no other pro-life pregnancy centers in Hawaii were consulted in the same way that Planned Parenthood was. 33. Representative Buenaventura also intimated, while the ACOG physician and Planned Parenthood representative were about to answer questions, that the reason she wanted to get their opinions on SB 501 was because it was likely one oftheir bills. 9 Case 1:17-cv-00326-DKW-KSC Document 30-13 Filed 09/08/17 Page 10 of 11 #: 397 34. PageID SB 501,in its final form, forces us at A Place for Women in Waipio to speak a message that is antithetical to our reason for being. SB 501 also一by forcing us to direct women to a resource that will provide for state-sponsored abortion and contraceptive services一violates our sincerely held religious beliefs 35. This makes the fact that our testimony was effectively censored that much more difficult to understand. Pregnancy resource centers are the only nonprofit organizations,and the only organizations period,for that matter,that are affected by SB 501. Yet pregnancy resource centers and their supporters are to my knowledge the only ones whose properly submitted testimony has been improperly censored or posted late,well after the hearing on the matter was concluded 36. I know of no other entity,other than the religious,pro-life pregnancy resource centers in Hawaii,that this bill was supposed to affect or that the bill in its final form compels to speak (against their conscience)the State of Hawaii's message,or to direct women to state-funded abortion or contraceptive services. 37. In fact,the only organizations that I know of which are required to recite this referral for state-sponsored family planning services (which include abortion and contraception,which we do not provide or refer for)are the religious, pro-life pregnancy centers in Hawaii. I am unaware of any other providers of family planning services that are required to recite this government message 10 Case 1:17-cv-00326-DKW-KSC Document 30-13 Filed 09/08/17 Page 11 of 11 #: 398 PageID Pursuant to 28 U.S.C.怪 1746,1 declare under penalty of perjury that the foregoing is true and correct to the best of my personal knowledge. Executed on September 8,2017. 11 Case Document 30-14 Filed 09/08/17 Page 1 of 1 PageID 399 From: Stacey Jimenez Sent: Saturday, February 25, 2017 9:38 PM To: Subject: Fwd: Submitted testimony for $3501 on Feb 23, 2017 Begin forwarded message: From: Subject: Submitted testimony for SB501 on Feb 23, 2017 Date: February 21, 2017 at 4:53:18 PM HST To: Cc: sii95216@hawaiiantel.net SB501 Submitted on: 2/21/2017 Testimony for WAM on Feb 23, 2017 in Conference Room 211 Submitted By Organization Tesf'f'er Presept at Posntion Hearing Stacey Jimenez A PLACE FOR WOMEN ose No lN WAIPIO PP Comments: Please note that testimony submitted less than 24 hours prior to the hearing, improperly identified, or directed to the incorrect office, may not be posted online or distributed to the committee prior to the convening of the public hearing. Do not reply to this email. This inbox is not monitored. For assistance please email EXHIBIT 12 Case Document 30-15 Filed 09/08/17 Page 1 of 1 PageID 400 From: Joy Wright Sent: Monday, February 27, 2017 1:06 PM To: CCPH Marketing Subject: Fwd: Submitted testimony for 53501 on Feb 23, 2017 Here you go Joy Wright Executive Director Malama Pregnancy Center of Maui 64 Central Ave, Wailuku HI 96793 Mailing: 1710 Ka?ahumanu PMB 423, Wailuku, HI 96793 (808) 280-5810 Forwarded message From: Date: Wed, Feb 22, 2017 at 8:36 AM Subject: Submitted testimony for SB501 on Feb 23, 2017 To: Cc: ioywriglitnincmaui?t?gmailcom 53501 Submitted on: 2/22/2017 Testimony for WAM on Feb 23, 2017 in Conference Room 211 Submitted By Organization $3353: . Malama Pre nanc Joy Wright Center of ?llan Oppose No Comments: Please note that testimony submitted less than 24 hours prior to the hearing, improperly identified, or directed to the incorrect office, may not be posted online or distributed to the committee prior to the convening of the public hearing. Do not reply to this email. This inbox is not monitored. For assistance please email webmaster@cepitol.hawaii.qov EXHIBIT 13 Case Document 30-16 Filed 09/08/17 Page 1 of 1 PageID 401 From: Ana Schaetzle Sent: Sunday, February 26, 2017 10:01 AM To: Subject: Fwd: Submitted testimony for 53501 on Feb 23, 2017 This is my personal testimony which I have not seen online. Mahalo Stacey. Ana Schaetzle (808) 443-7458 Begin forwarded message: From: Subject: Submitted testimony for SB501 on Feb 23, 2017 Date: February 21,2017 at 9:01:25 PM HST To: Cc: 83501 Submitted on: 2/21/2017 Testimony for WAM on Feb 23, 2017 in Conference Room 211 Submitted By Organization 32:12: I Ana Schaetzle II Individual Oppose II No I Comments: Please note that testimony submitted less than 24 hours prior to the hearinq, improperly identified, or directed to the incorrect office, may not be posted online or distributed to the committee prior to the convening of the public hearing. Do not reply to this email. This inbox is not monitored. For assistance please email EXHIBIT 14 Case Document 30-17 Filed 09/08/17 Page 1 of 1 PageID 402 From: FNickelsen Sent: Sunday, February 26, 2017 12:22 PM To: Marketing Subject: Fwd: Submitted testimony for $3501 on Feb 23, 2017 Aloha, Faith Hebrews 1 1 :1 Begin forwarded message: From: mailinglist@canitol.hawaiigov Date: February 22, 2017 at 7:42:12 AM HST To: Cc: Subject: Submitted testimony for SB501 on Feb 23, 2017 SB501 Submitted on: 2/22/2017 Testimony for WAM on Feb 23, 2017 in Conference Room 211 Submitted By Organization Testifier Present at Posmon Hearing . . A Place for Women in Faith Nickelsen Waipio Oppose No Comments: Please note that testimony submitted less than 24 hours prior to the hearing, improperly identi?ed, or directed to the incorrect of?ce, may not be posted online or distributed to the committee prior to the convening of the public hearing. Do not reply to this email. This inbox is not monitored. For assistance please email webmaster?zcapitol.hawaii.gov EXHIBIT 15 Case Document 30-18 Filed 09/08/17 Page 1 of 6 PageID 403 DAVID Y. IGE GOVERNOR DOUGLAS 5. CHIN ATTORNEY GENERAL RUSSELL A. SUZUKI FIRST DEPUTY ATTORNEY GENERAL STATE OF HAWAII DEPARTMENT OF THE ATTORNEY GENERAL 425 QUEEN STREET HONOLULU. HAWAII 96813 TELEPHONE NO: (608) 555-1500 March 29. 2017 The Honorable Breene Harimoto Senator, District 16 The Twenty-Ninth State Legislature State Capitol, Room 215 Honolulu, Hawai?i 968 13 Re: Request for Advice on Public Testimony Dear Senator Harimoto: This letter responds to your request for legal advice concerning public testimony submitted on bills heard in committee hearings held during the legislative session. You have asked the following questions and our short answers appear below: 1. Can the Senate withhold from senators and the public duly submitted testimonies for noticed public hearings and decision- making meetings where written testimonies are allowed? If so, can only selected testimonies be withheld from senators and the public while other testimonies are made available? Answer: No. As explained below. based on the constitutional rights to petition government and to free speech, a person has a constitutionally protected right to submit testimony for legislative hearings. Assuming testimony is submitted in accordance with the Senate's rules, the Senate is not authorized by the constitutions, statute or Senate rules to withhold, edit or redact the content of the testimony or to delay its distribution without infringing on those constitutional rights and should not do so unless the right to petition government is outweighed by some other overriding right. We do not see an overriding interest in the specific case described herein to warrant censorship of the testimony. EXHIBIT 16 Case Document 30-18 Filed 09/08/17 Page 2 of 6 PageID 404 The Honorable Breene Harimoto March 29. 2017 Page 2 of 6 2. Is the Senate responsible or liable for the content of written testimonies received from the public when making such testimonies available to senators and the public? Answer: No. The testimony under consideration relates to health/ treatment/ medical issues. The Senate is not a covered entity under HIPAA1 and is not required to comply with its privacy requirements. Further, while the Senate should, out of concern for public health and safety, refrain from disseminating or publishing (via the legislature?s website] testimony that endangers public safety or incites illegal or violent activity, the Senate is not responsible for the content of testimony submitted by the public. Claims against the legislature and or legislators arising out of testimony submitted would likely be barred by sovereign immunity or absolute legislative immunity. 3. Under what circumstances is the Senate allowed or required to redact information in written testimonies received prior to making such testimonies available to senators and the public? If the Senate is allowed or required to redact certain information in testimonies, then must the Senate review every testimony submitted? Can the Senate review testimonies on a selective basis? Answer: The public has a constitutionally protected right to free speech and a right to petition the government. We know of no authority that allows or requires the Senate to redact or edit written testimony submitted by the public. I. Factual Background During a recent Senate hearing, a member of the public testified about her experience at A Place for Women, a limited service pregnancy center in Waipio. During her testimony, she disclosed certain personal health information about herself. Subsequently, prior to a Ways and Means committee hearing, a representative from A Place for Women submitted written testimony to refute the testimony previously submitted by the individual and included ?information from an opinion exit survey following the aforementioned individual?s visit to the pregnancy center." 1 HIPAA refers to the Health Insurance Portability and Accountability Act of 1996. Case Document 30-18 Filed 09/08/17 Page 3 of 6 PageID 405 The Honorable Breene Harimoto March 29. 2017 Page 3 of 6 The representative from A Place for Women said that her testimony was submitted in advance of the committee deadline but that it was not posted or distributed to committee members prior to the hearing. Later, at a meeting at the Senate president's office, she was told that her testimony was withheld ?due to a potential violation of the HIPAA Privacy Rule." Other testimony related to this issue that was submitted in advance of the committee deadline was not posted until 5 days after the Ways and Means hearing. II. The Constitutional Rights that Apply A. The Public's Right to Petition the Government and Freelv Express Its Opinions and Ideas The Petition Clause, which is part of the First Amendment of the United States Constitution, provides that: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof: or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Article I, Section 4 of the Hawai?i Constitution provides that: No law shall be enacted respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of Speech or of the press or the right of the peeple peaceably to assemble and to petition the government for a redress of grievances. Both our federal and state constitutions protect the individuals right to free speech and the right to petition government. To further protect these rights, in 2002 the Hawai?i Legislature enacted Act 187. entitled the "Citizen Participation In Government Act," which is codified at Hawaii Revised Statutes chapter 634F. In Act 187 the Legislature recognized "[c]itizen participation in government as an inalienable right essential to the survival of democracy" and that "[clommunication, testimony, claims, and arguments provided by citizens to their government are essential to wise government decisions and public policy, the public health, safety, and welfare, effective law enforcement, the efficient Operation of government programs. the credibility and trust afforded government, and the continuation of America's republican form of government through representative 685101 1.DOC Case Document 30-18 Filed 09/08/17 Page 4 of 6 PageID The Honorable Breene Harimoto 406 March 29, 2017 Page 4 of 6 democracy." Act 187 is intended to "[p]rotect and encourage citizen participation in government to the maximum extent permitted by law" by protecting "any oral or written testimony submitted or provided to a governmental body during the course of a governmental proceeding," such as testifying before a legislative committee, and providing an expedited review and dismissal of lawsuits that are determined to lack substantial justification or are interposed for delay or harassment and that are solely based on the party's public participation before a governmental body. B. The Legislature's Right to Set Its Procedural Rules Article section 12 of the Hawai?i Constitution provides. in relevant part, that ?[elach house shall choose its own officers, determine the rules of its proceedings and keep a journal." Accordingly. the Senate and the House are authorized to adopt rules for their proceedings which include the hearings held on the various bills under consideration. The Senate's constitutional authority over the legislative process is vast and while the Senate and House may adopt rules for proceedings (for example, deadlines for submitting testimony or the number of copies of testimony to be submitted), neither the constitution. statute nor the Rules of the Senate authorize the Senate to alter or amend the content of any public testimony or to delay its distribution or publication on the internet. However, as explained below. because legislators are absolutely immune from lawsuits challenging their actions when acting in their legislative capacity. the ability to compel legislators to accept and post unredacted testimonies through a judicial order is unlikely. [11. Claims Against the Legislature and Legislators are Barred by Sovereign Immunity and chislative Irmnunitv Whether an individual can sue for the posting of objectionable testimonies or whether the public or another branch of government can force the kgislature to receive and post testimonies without redaction is another aspect of this issue that must be addressed. The Legislature is protected by the sovereign immunity of the State and legislators enjoy absolute legislative immunity for their actions while engaging in legislative activities. The Legislature is a co-equal branch of government with the Judiciary and the Executive branches and its authority over its legislative process is absolute. When the Legislature is engaged in legislative activity it enjoys the sovereign immunity of the state and its legislators enjoy absolute legislative immunity for its actions. See Greer v. Baker, 137 Hawai?i 249 (2016) (holding that Senator Baker is entitled to raise the defense of absolute Case Document 30-18 Filed 09/08/17 Page 5 of 6 PageID 407 The Honorable Breene Harimoto March 29, 2017 Page 5 of 6 legislative immunity). The word "absolute" means "complete" or "outright." Websters Unabridged Dictionary of the English Language 5 (1989]. Similarly, those acting as an arm of the legislature, share the same immunity under the doctrine of absolute quasi-legislative immunity. Seibel v. Kemble, 63 Haw. 516 (1981). Given the immunity that the Legislature and legislators enjoy, it is doubtful that an individual can successfully bring an action against the Legislature for the posting of testimonies the individual ?nds objectionable. It is similarly doubtful that an action can be brought to compel the Legislature to stop redacting testimonies or posting them late. IV. The Senate is Not a Covered Entity Under HIPAA In the situation you describe, it is unclear what information from the opinion exit survey was included in the testimony submitted by the representative from A Place for Women. Based on your description, it appears that the testimony may have included certain protected health information that the Legislature would be required to withhold if it were a covered entity. The Senate is not a covered entity under and it is not subject to the restrictions on the disclosure of protected health information. Further, its testimony policy3 clearly puts the duty and responsibility on the testi?er not to submit information the testi?er does not want disclosed. If A Place for Women is a HIPAA covered entity and it disclosed protected health information in its testimony without first obtaining the requisite consent, it may be subject to liability, but HIPPA does not obligate the Senate to redact or withhold that testimony or delay its disclosure until after a hearing.4 2 Covered entities include health plans, health care clearinghouses and health care providers that transmit any health information in electronic form in connection with certain speci?ed transactions. See 45 C.F.R. 160.103. 3 The Senate Testimony Policy provides that: "All testimony received by the Hawai?i Senate is posted on the Hawai?i Legislature's website, which is accessible to the public. Please do not include private information that you do not want disclosed to the public." 4 In the factual circumstances you describe, there is no mention of a request for copies of testimony or other government records. As a result, we do not believe the Uniform Information Practices Act (Modified) (Hawaii Revised Statutes chapter 92F) applies here. However, even if chapter 92F did apply, we believe that the individual privacy interest is outweighed by the constitutional interests. 685101 1 Case Document 30-18 Filed 09/08/17 Page 6 of 6 PageID The Honorable Breene Harimoto 408 March 29, 2017 Page 6 of 6 V. CONCLUSION Based on the Petition Clause of the United States Constitution and article I, section 4 of the Hawai?i Constitution, individuals have a constitutionally protected right to submit testimony for legislative hearings. Assuming the testimony is submitted in accordance with the applicable procedural rules prior to a legislative hearing, the Senate is not authorized by the constitutions, statutes or Senate rules to withhold, edit. or redact the content of the testimony submitted or to delay its distribution without violating the testifier?s constitutional right of free Speech. The Senate is not a covered entity under HIPAA and is not required to comply with HIPAA's privacy requirements. However. While the right to submit testimonies and have them posted are protected by the constitutions, enforcing those rights by a court order might be difficult given the immunities that the Legislature and legislators enjoy. If you have further questions concerning these matters, please contact me. Very truly yours, ?Shae/La Robyn . Chun Deputy Attorney General Approved: Douglas S. Chin Attorney General