No. 16-1140
================================================================

In The

Supreme Court of the United States
-----------------------------------------------------------------NATIONAL INSTITUTE OF FAMILY AND
LIFE ADVOCATES, D/B/A NIFLA, ET AL.,
Petitioners,
v.
XAVIER BECERRA, ATTORNEY GENERAL
OF CALIFORNIA, ET AL.,
Respondents.
-----------------------------------------------------------------On Writ Of Certiorari To The United States
Court Of Appeals For The Ninth Circuit
-----------------------------------------------------------------BRIEF FOR THE CITY AND COUNTY OF
SAN FRANCISCO; THE CITIES OF OAKLAND,
BALTIMORE, LOS ANGELES, AND NEW YORK;
AND THE COUNTY OF SANTA CLARA AS AMICI
CURIAE IN SUPPORT OF RESPONDENTS
-----------------------------------------------------------------DENNIS J. HERRERA
BARBARA J. PARKER
City Attorney
City Attorney
MARIA BEE
CHRISTINE VAN AKEN
YVONNE R. MERÉ
ERIN BERNSTEIN
MATTHEW GOLDBERG
MALIA MCPHERSON
MOLLIE M. LEE
OFFICE OF THE OAKLAND
Counsel of Record
CITY ATTORNEY
1 Frank H. Ogawa Plaza
CITY ATTORNEY’S OFFICE
City Hall Room 234
Oakland, CA 94612
One Dr. Carlton B. Goodlett Pl. Attorneys for the
San Francisco, CA 94102
City of Oakland
Telephone: (415) 554-4290
Solicitor ANDRE M. DAVIS
mollie.lee@sfcityatty.org
SUZANNE SANGREE
Attorneys for the City and
BALTIMORE CITY
County of San Francisco
LAW DEPARTMENT
100 North Holliday Street
Room 109
Baltimore, MD 21202
(443) 388-2190
Attorneys for the
City of Baltimore
[Additional Counsel Listed On Signature Page]
================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM

 i
TABLE OF CONTENTS
Page
INTEREST OF AMICI CURIAE .........................

1

SUMMARY OF ARGUMENT ..............................

3

ARGUMENT ........................................................

6

I.

Many Pregnancy Centers Deceive Women
About The Services They Offer And The
Qualifications Of Their Personnel, And
Also Provide Inaccurate Information
About Pregnancy And Abortion .................

6

A. Deceptive Advertising .........................

6

B. Unlicensed Facilities Purporting To
Be Licensed..........................................

9

C. Breaches Of Patient Confidentiality .... 11
D. Medically And Legally Inaccurate Information ............................................. 12
E. False Information About Pregnancies
And Other Delay Tactics ..................... 15
F. Pregnancy Center Clients Are Often
Vulnerable To Deception ..................... 18
II.

Pregnancy Center Disclosure Laws
Should Be Evaluated Under The Same
Standard As Other Reproductive Health
Disclosure Laws ......................................... 20

CONCLUSION..................................................... 30

 ii
TABLE OF AUTHORITIES
Page
CASES
Burson v. Freeman, 504 U.S. 191 (1992).......................5
Centro Tepeyac v. Montgomery Cnty., 722 F.3d
184 (4th Cir. 2013) ...................................................27
Discount Tobacco City & Lottery, Inc. v. United
States, 674 F.3d 509 (6th Cir. 2012) ........................28
EMW Women’s Surgical Ctr., P.S.C. v. Beshar,
___ F. Supp. 3d ___, 2017 WL 4288906 (W.D.
Ky. Sept. 27, 2017) ...................................................20
Evergreen Ass’n, Inc. v. City of New York, 740
F.3d 233 (2d Cir. 2014) ........................................ 8, 27
First Resort, Inc. v. Herrera et al., 860 F.3d 1263
(9th Cir. 2017)..........................................................15
Greater Balt. Ctr. for Pregnancy Concerns, Inc. v.
Mayor & City Council of Balt., No. 16-2325
(4th Cir. Jan. 30, 2017) ..............................................7
Madsen v. Women’s Health Ctr., Inc., 512 U.S.
753 (1994) .......................................................... 25, 27
McCullen v. Coakley, 134 S. Ct. 2518 (2014).......... 5, 25
Milavetz, Gallop & Milavetz, P.A. v. United
States, 559 U.S. 229 (2010)......................................26
Planned Parenthood Minn., N.D., S.D. v. Rounds,
530 F.3d 724 (8th Cir. 2008) ....................................21
Planned Parenthood Minn., N.D., S.D. v. Rounds,
686 F.3d 889 (8th Cir. 2012) ....................................21
Planned Parenthood of Heartland v. Heineman,
724 F. Supp. 2d 1025 (D. Neb. 2010) .......................21

 iii
TABLE OF AUTHORITIES – Continued
Page
Planned Parenthood of Ind. & Ky., Inc. v.
Comm’r, Ind. State Dep’t of Health, 265
F. Supp. 3d 859 (S.D. Ind. 2017)..............................20
Planned Parenthood v. Casey, 505 U.S. 833
(1992) ................................................................. 20, 27
Riley v. Nat’l Federation of the Blind of N. C.,
Inc., 487 U.S. 781 (1988)..........................................27
Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) .........29
Tepeyac v. Montgomery Cnty., 5 F. Supp. 3d 745
(D. Md. 2014) ...........................................................11
Tex. Med. Providers Performing Abortion Servs.
v. Lakey, 667 F.3d 570 (5th Cir. 2012) .....................21
Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656
(2015) .......................................................................25
Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985) ... 5, 26, 27, 28
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. I ................................... 5, 21, 25, 26
STATUTES
15 U.S.C. § 1333 ..........................................................26
18 Pa. Cons. Stat. §§ 3205(2)-(3), 3208(a)(1) ..............23
745 Ill. Comp. Stat. §§ 70/2, 70/3, 70/6, 70/9 ................3
Ala. Code § 26-23A-4 ..................................................20
Alaska Stat. §§ 18.05.032(a)(1)-(3), 18.16.060(b) ..... 22, 23

 iv
TABLE OF AUTHORITIES – Continued
Page
Alaska Stat. §§ 18.16.060, 18.05.032 .........................20
Ariz. Rev. Stat. Ann. § 36-1702 ...................................23
Ariz. Rev. Stat. Ann. § 36-2153 ...................................20
Ark. Code Ann. §§ 20-16-1703 to 20-16-1705.............20
Ark. Code Ann. § 20-16-1704 ................................ 22, 23
Austin, Tex., City Code §§ 10-10-1 to 10-10-3 ..............3
Balt., Md., City Health Code §§ 3-501 to 3-506 ....... 1, 3
Cal. Bus. & Prof. Code § 2052.......................................9
Cal. Health & Safety Code § 109275(b), (c)(1) ...........24
Cal. Health & Safety Code § 109280..........................24
Cal. Health & Safety Code §§ 123470-123473 ..... passim
Cal. Health & Safety Code § 125335..........................23
Conn. Gen. Stat. § 19a-601 .........................................20
Court of Common Council of the City of Hartford, Ct., Ordinance Amending Chapter 17 of
the Hartford Municipal Code To Add Article
VI-Pregnancy Information Disclosure and
Protection (Dec. 11, 2017) .........................................3
Fla. Stat. §§ 390.0111(3), 390.025 ..............................20
Fla. Stat. Ann. § 458.324 ............................................24
Ga. Code Ann. §§ 31-9A-3 to 31-9A-4 .........................20
Ga. Code Ann. §§ 31-9A-3(2)(C)-(D), 31-9A4(a)(1)-(1.1) ..............................................................23
Idaho Code Ann. § 18-609...........................................20

 v
TABLE OF AUTHORITIES – Continued
Page
Idaho Code Ann. § 18-609(2), (4) ................................23
Ind. Code § 16-34-2-1.1, § 16-34-2-1.1(a)(1)(K) ..........20
Kan. Stat. Ann. §§ 65-6709 to 65-6710.......................20
Kan. Stat. Ann. §§ 65-6709(b)(2), 65-6710(a)(1) ........23
King County, Wa., Board of Health, Rule & Reg.
No. BOH17-04 (July 20, 2017) ..................................3
Ky. Rev. Stat. Ann. §§ 311.725, 311.727 .....................20
Ky. Rev. Stat. Ann. § 311.725(1)(b)(1), (2)(a) ..............23
La. Rev. Stat. Ann. § 27.249 ........................................26
La. Rev. Stat. Ann. §§ 40:1061.15 to 40:1061.17 ........21
La. Rev. Stat. Ann. § 40:1103.4 ...................................24
Me. Rev. Stat. tit. 22, §§ 1597-A, 1599-A ....................21
Me. Rev. Stat. tit. 24, § 2905-A ...................................24
Mich. Comp. Laws § 333.17015 ..................................21
Mich. Comp. Laws § 333.17513 ..................................24
Minn. Stat. §§ 145.4242-145.4243 ..............................21
Minn. Stat. §§ 145.4242(a)(2)(iii), 145.4243(a)(1) ....... 23
Miss. Code Ann. §§ 41-41-33, 41-41-35 ......................21
Miss. Code Ann. §§ 41-41-33(1)(b)(iv), 41-4335(1)(a).....................................................................23
Mo. Rev. Stat. §§ 188.027, 188.039 .............................21
Mo. Rev. Stat. § 194.387 ..............................................24
Montgomery County, Md., Board of Health, Res.
No. 16-1252 (Feb. 2, 2010) .........................................3

 vi
TABLE OF AUTHORITIES – Continued
Page
N.C. Gen. Stat. §§ 90-21.82, 90-21.83, 90-21.85 .........21
N.D. Cent. Code §§ 14-02.1-02 to 14-02.1-02.1 ........21
N.D. Cent. Code §§ 14-02.1-02(11)(b)(1)-(2), 1402.1-02.1(1)(a) .........................................................23
Neb. Rev. Stat. §§ 28-327 to 28-327.01 .......................21
Neb. Rev. Stat. § 28-327(1)(a), (2)(d) ..........................23
Nev. Rev. Stat. § 442.253.............................................21
N.Y.C., N.Y., Admin. Code § 20-816(a)-(e) ................ 1, 3
Oakland, Cal., Mun. Code § 5.06.110 ....................... 1, 3
Ohio Rev. Code Ann. §§ 2317.56, 2919.192 ................21
Ohio Rev. Code Ann. §§ 2317.56(B)(2)(b),
2317.56(C)(1) ...........................................................22
Okla. Stat. tit. 63, §§ 1-738.2, 1-738.3, 1-746.2, 1746.3 ........................................................................21
Okla. Stat. tit. 63, §§ 1.738.2(B)(1)(a)(5),
1.738.3(A)(1)(a) ........................................................23
R.I. Gen. Laws § 23-4.7-3 ...........................................21
S.B. No. 501, S.D. 1, 29th Leg., Reg. Sess. (Haw.
2017) ..........................................................................3
S.C. Code Ann. § 40-83-30 ..........................................26
S.C. Code Ann. §§ 44-41-330, 44-41-340.....................21
S.C. Code Ann. §§ 44-41-330(A)(2), 44-41340(A)(1) ..................................................................23
S.D. Codified Laws §§ 34-23A-10.1, 34-23A-10.3 .......21
S.D. Codified Laws § 34-23A-10.1(2)(a), (c)................23

 vii
TABLE OF AUTHORITIES – Continued
Page
S.F., Cal., Admin. Code §§ 93.1-93.5 .............................3
S.F., Cal., Admin. Code § 93.2(9) ................................15
S.F., Cal., Admin. Code § 93.4.......................................1
Tex. Health & Safety Code Ann. §§ 171.012,
171.0123, 171.013, 171.015 .....................................21
Tex. Health & Safety Code Ann. §§ 171.012(a)(2)(3), 171.014(a)(2), 171.015(1)(a) ............................... 23
Tex. Occ. Code § 203.351 ............................................24
Utah Code Ann. §§ 76-7-305, 76-7-305.5, 76-7305.6 ........................................................................21
Utah Code Ann. §§ 76-7-305(2)(a), 76-7305.5(2)(g)-(k) ..........................................................23
Va. Code Ann. § 18.2-76 ..............................................21
Va. Code Ann. § 18.2-76(D)(5), (F)(1) .........................23
W. Va. Code §§ 16-2I-2–16-2I-3 ...................................21
W. Va. Code §§ 16-2I-2(b)(3)-(4), 16-2I-3(a)(1) ............23
Wis. Stat. § 253.10 ......................................................21
Wis. Stat. § 253.10(c)(1)(L)(d), (d)(1) ..........................23
RULES
Sup. Ct. R. 37.6 .............................................................1

 viii
TABLE OF AUTHORITIES – Continued
Page
OTHER
Relating to Health: Hearing on S.B. 501 Before
the S. Comms. on Commerce, Consumer Protection & Health and on Judiciary and Labor,
29th Leg. 1-2 (Haw. 2017) .......................................19
Am. Cancer Soc’y, Abortion and Breast Cancer
Risk ..........................................................................13
American College of Obstetricians and Gynecologists, State Legislative Mandates: Mammography & Breast Density (2012) ...............................24
Amy Everitt, Remarks at the Oakland City
Council Life Enrichment Committee Meeting
(June 28, 2016) ..........................................................7
Comments and Documents Relating to Disclosure of Information by Limited Service Pregnancy Centers: Hearing on BOH-17-04 Before
the Bd. of Health, King Cnty. Bd. of Health at
81 (King Cnty., Wa. 2017)........................................18
Informed Choices, About our Services........................15
Informed Choices, Home.............................................14
Informed Choices, Location & Hours ...........................9
Kaiser Family Foundation, State Ultrasound
Requirements in Abortion Procedure: As of
April 1, 2017 ............................................................15
King County Board of Health Staff Report,
Briefing No. 17-B14 (June 15, 2017) ......................10

 ix
TABLE OF AUTHORITIES – Continued
Page
Letter from Muntu Davis, Cnty. Health Officer,
and Kiko Malin, Dir., Family Health Servs.
Div., Alameda Cnty., Cal., to Oakland City
Council Members (June 26, 2016) .................... 17, 19
Relating to Health: Hearing on H. Comm. on
Health, 29th Leg. (Haw. 2017) ................................12
Relating to Health: Hearing on H.B. 663 Before
the H. Comm. on Health, 29th Leg. 55-56
(Haw. 2017) ..............................................................18
Relating to Health: Hearing on S.B. 501 Before
the S. Comm. on Ways & Means, 29th Leg.
(Haw. 2017) .................................................. 12, 17, 18

 1
INTEREST OF AMICI CURIAE1
Amici are cities and counties that regulate pregnancy centers. Through legislation, litigation, investigations, and enforcement efforts, amici have developed
substantial records about the harms caused by many
pregnancy centers. These harms often arise when
pregnancy centers mislead women about the services
they provide, leading women to delay accessing abortion services or comprehensive prenatal care. Some
amici have enacted legislation to address deceptive
practices by pregnancy centers. For instance, Baltimore and New York City have enacted ordinances requiring pregnancy centers to disclose certain
information about their services. See Balt., Md., City
Health Code §§ 3-501 to 3-506; N.Y.C., N.Y., Admin.
Code § 20-816(a)-(e). San Francisco and Oakland prohibit pregnancy centers that provide limited medical
services from falsely advertising services they do not
offer. See S.F., Cal., Admin. Code § 93.4; Oakland, Cal.,
Mun. Code § 5.06.110. Other amici, like the City of Los
Angeles and the County of Santa Clara have encountered pregnancy centers’ deceptive practices in the
course of investigation or enforcement efforts.

1

Pursuant to Supreme Court Rule 37.6, amici affirm that no
counsel for a party authored this brief in whole or in part and that
no person other than amici and their counsel made a monetary
contribution to its preparation or submission. Counsel for Petitioners’ letter consenting to the submission of amicus briefs has
been filed with the Clerk’s Office. Counsel for Respondents have
consented to the filing of this amicus brief.

 2
Collectively, amici are leaders among local governments in advocating and acting to protect consumers.
Amici submit this brief to provide the Court with
factual information from municipal records, as well as
to urge the Court to adopt a consistent standard for
reviewing reproductive health disclosure laws. This evidence demonstrates that there is ample reason to regulate pregnancy centers – not to discriminate against
their viewpoints, but because pregnant women have a
critical need for accurate and timely information. That
would be reason enough for amici to require pregnancy
centers to disclose truthful information to the pregnant women they serve. The need for disclosure mandates is only strengthened by overwhelming evidence
that the deceptive conduct of some pregnancy centers
hinders the ability of pregnant women to obtain accurate information and appropriate services, causing significant harms. Recognizing that there is not a onesize-fits-all approach, amici have selected different
policy tools to respond to this problem. Some amici
have enacted compelled disclosure laws similar to California’s Reproductive FACT Act,2 while others have
taken different approaches tailored to specific problems in their jurisdictions. All amici share an interest
in maintaining a broad range of policy tools so that jurisdictions around the country can select an approach
that best fits the problems they have identified. Amici
urge the Court to uphold the FACT Act.
------------------------------------------------------------------

2

Cal. Health & Safety Code §§ 123470-123473 (FACT Act).

 3
SUMMARY OF ARGUMENT
California is not alone in regulating pregnancy
centers.3 At least ten other jurisdictions, including four
amici, have enacted regulations that impose disclosure
requirements or advertising restrictions on pregnancy
centers.4 These regulations respond to the particular
harms that result when pregnancy centers use false
information and deceptive practices to prevent pregnant women from accessing desired health care, including abortion, in a timely fashion. While some
pregnancy centers are honest brokers that provide valuable services to pregnant women, amici’s legislative
records – as well as records developed through their

3

State and local laws define pregnancy centers differently,
with some focused on limited-service pregnancy centers and others including pregnancy centers that provide comprehensive reproductive health care. As used in this brief, the term “pregnancy
centers” refers to facilities that offer pregnant women limited services such as pregnancy tests or ultrasounds, but do not offer or
provide referrals for abortion.
4
See Austin, Tex., City Code §§ 10-10-1 to 10-10-3; Balt., Md.,
City Health Code §§ 3-501 to 3-506; Court of Common Council of
the City of Hartford, Ct., Ordinance Amending Chapter 17 of the
Hartford Municipal Code To Add Article VI-Pregnancy Information Disclosure and Protection (Dec. 11, 2017) (enacted); S.B.
No. 501, S.D. 1, 29th Leg., Reg. Sess. (Haw. 2017); 745 Ill. Comp.
Stat. §§ 70/2, 70/3, 70/6, 70/9; King County, Wa., Board of Health,
Rule & Reg. No. BOH17-04 (July 20, 2017); Montgomery County,
Md., Board of Health, Res. No. 16-1252 (Feb. 2, 2010); N.Y.C., N.Y.,
Admin. Code § 20-816(a)-(e); Oakland, Cal., Mun. Code § 5.06.110;
S.F., Cal., Admin. Code §§ 93.1-93.5.

 4
litigation and enforcement actions – show recurring
patterns of deception at many pregnancy centers.5
This deception frequently begins when pregnancy
centers use intentionally misleading advertising to attract women seeking abortions, even though the centers do not provide or refer for abortions. Sometimes,
pregnancy center staff members pretend that they
work for clinics that provide abortions, and dupe pregnant women into going to the pregnancy center instead
of their intended destination. At unlicensed pregnancy
centers, the deception often continues when staff request medical histories, wear scrubs, and purport to
give clients “full examinations,” falsely leading them to
believe they have been treated by a medical professional. Pregnancy centers also frequently give clients
medically or legally inaccurate information about
abortion, and fail to provide them with information
about the availability of medical assistance for family
planning and abortion services. The trickery culminates with lies and delay tactics designed to prevent a
pregnant woman from seeing an abortion provider until it is too late for her lawfully to choose an abortion –
with the consequence that comprehensive prenatal
care is also delayed.

5

Many of amici’s legislative records have been included in
court records in cases challenging amici’s laws. For the convenience of the Court, references are provided to court filings where
possible. Where evidence has not been included in court filings,
citations are provided to legislative records. All cited records are
on file with counsel.

 5
California’s FACT Act responds to these harms by
ensuring that pregnant women at unlicensed facilities
are notified that the person treating them is not a licensed medical provider, and that pregnant women at
licensed facilities are informed about the option to access comprehensive reproductive health care at little
or no cost. In requiring pregnancy centers to provide
factual information about care and services, the FACT
Act is similar to dozens of laws that compel disclosures
by physicians before providing abortions. Like these
other disclosure laws, the FACT Act regulates some
speakers treating pregnant women but not others, responding to the particular harms the legislature was
trying to solve. This does not constitute viewpoint discrimination. “States adopt laws to address the problems that confront them. The First Amendment does
not require States to regulate for problems that do not
exist” by enacting an overly broad statute to counter a
particular issue. McCullen v. Coakley, 134 S. Ct. 2518,
2532 (2014) (quoting Burson v. Freeman, 504 U.S. 191,
207 (1992) (plurality opinion)). So long as disclosure
laws simply require a commercial speaker to provide
“purely factual and uncontroversial information,” they
need only be “reasonably related to the State’s interest.” Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985). The
FACT Act easily satisfies this standard.
Amici urge the Court to maintain a consistent
standard for evaluating reproductive health disclosure
laws. If the Constitution allows a state to require abortion providers to give a pregnant woman factual

 6
information about available resources, it must also allow similar disclosures to be imposed on providers who
do not offer abortions.
------------------------------------------------------------------

ARGUMENT
I.

Many Pregnancy Centers Deceive Women
About The Services They Offer And The
Qualifications Of Their Personnel, And Also
Provide Inaccurate Information About Pregnancy And Abortion.

Some pregnancy centers are straightforward
about their objectives, honestly advertising the services they offer, and supporting women who choose to
carry their pregnancies to term. But other pregnancy
centers take a different approach, as demonstrated in
amici’s legislative records.
A. Deceptive Advertising
Many pregnancy centers use advertising campaigns that lead pregnant women to believe that they
offer abortions, and intentionally dupe women seeking
abortions into making appointments at the centers.
For instance, a San Francisco pregnancy center that
does not perform abortions or refer women to abortion
providers pays to advertise on Google searches for
“abortion San Francisco” and on yellowpages.com

 7
under “abortion services.”6 These advertisements include links to a website that features a testimonial
from a “client who chose to terminate her pregnancy,”
without disclosing that the pregnancy center did not
help that client obtain an abortion. Id. at 39. Other
pregnancy centers advertise that they provide “Abortion and Morning After Pill information, including procedures and risks,” omitting that the advertised
“procedures” do not include abortion and contraceptive
care.7
One pregnancy center’s executive director admitted that its “ads are purposely vague, of course.” Id. at
708. After running these “purposely vague” ads, this
pregnancy center reported an increase in the number
of calls from women who “wanted to schedule an abortion” and who “were under the [false] impression from
the bus advertisements that [the center] assisted in
paying for abortions.” Id. at 705.

6

Appellees’ Supplemental Excerpts of Record at 151, 153-54,
157-58, First Resort, Inc. v. Herrera et al., 860 F.3d 1263 (9th Cir.
2017) (No. 15-15434), ECF No. 12; see also Amy Everitt, Remarks
at the Oakland City Council Life Enrichment Committee Meeting
(June 28, 2016), http://oakland.granicus.com/MediaPlayer.php?
view_id=2&clip_id=2026&meta_id=139607, at 8:35 [hereinafter
Oakland City Council LEC] (noting that a Google search for “abortion Oakland” listed crisis pregnancy centers as two of the top
three results).
7
Joint Appendix to Appellants’ Brief at 702-03, Greater Balt.
Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Balt.,
No. 16-2325 (4th Cir. Jan. 30, 2017), ECF No. 26 [hereinafter Balt.
J.A.].

 8
Phone calls to pregnancy centers are unlikely to
yield further clarity. A nationwide pregnancy center
hotline trains staff to be intentionally “vague” when
fielding calls about abortion services. Oakland City
Council LEC at 10:10. And in a survey of pregnancy
centers, “not one of the [pregnancy centers] admitted
that they don’t offer complete pregnancy counseling including abortion and contraception options, unless explicitly asked.”8
Some pregnancy centers adopt a different strategy
to attract clients – namely, diverting pregnant women
who are going to other clinics and tricking them about
where they are and what services are offered there.
Pregnancy centers “often have misleading names and
signage and set up shop near legitimate reproductive
health care providers.” Id. at 311. They use “large and
vague signs and advertis[e]ments” to divert patients
from their intended destinations. Id. at 951. Many
women “accidentally enter[ ] into a ‘limited service’
pregnancy center,” “thinking it is a medical facility
that offers a full range of reproductive health services.”
Id.
Other pregnancy centers go further, actively deceiving women who intend to go to clinics that provide
more comprehensive care, including contraception and
abortion services. In Brooklyn, for example, a pregnancy center operates in the same building as a clinic
8

Joint Appendix to Appellants’ Brief at 308, Evergreen Ass’n,
Inc. v. City of New York, 740 F.3d 233 (2d Cir. 2014) (No. 11-2735cv), ECF Nos. 78-81 [hereinafter N.Y.C. J.A.].

 9
that provides contraceptive and abortion care, but on a
different floor. Someone posing as a clinic employee intercepted a patient outside of the clinic and took her to
the pregnancy center instead. Id. at 315. Another pregnancy center parks a bus advertising free ultrasounds
outside of a clinic that provides abortions. Id. at 44243. Workers on the bus have falsely stated that “the
counselors work for [the] clinic, [and] that the clinic is
closed,” in an apparent effort to lure women to the
pregnancy center instead of the clinic. Id. at 443.
B. Unlicensed Facilities Purporting To Be
Licensed
Some pregnancy centers falsely claim that they
are licensed medical facilities. For instance, a California pregnancy center advertises that its unlicensed
mobile unit provides “the same services” as its licensed
facility, even though the mobile unit cannot legally provide medical services that are provided by the licensed
facility.9
Other pregnancy centers “go to great lengths to
foster an impression of medical authority, even though
most are not licensed medical facilities, and the women
coming in are unlikely to see a licensed medical provider.” N.Y.C. J.A. at 308. These pregnancy centers
“look like a doctor’s office,” id. at 312, or “like a medical
9

See Informed Choices, Location & Hours, http://www.
informed-choices.org/map-office-hours (last visited Feb. 15, 2018);
Cal. Bus. & Prof. Code § 2052 (prohibiting the unlicensed practice
of medicine).

 10
facility,” id. at 321. Clients are often asked for a full
medical history, and then given a “full examination” by
staff in scrubs. Id. at 400.10 As one woman testified:
On October 18th at 23 weeks pregnant, I went
to EMC Pregnancy Center in downtown
Brooklyn. Though this crisis pregnancy center
did not appear to have any licensed medical
personnel on staff, it looked and felt like a doctor’s office. I was given paperwork to fill out
that asked for a medical history as well as all
of my contact information and all of my partner’s contact information. A woman in scrubs
was seeing patients in an exam room that
looked just like every OB/GYN office I’ve ever
been in.
I took a pregnancy test . . . and sat waiting for
the results with scared 16, 17 and 18-year-old
women. Women half my age who had come
seeking help at a desperate moment. Though
I knew I was pregnant and had been testing
positive on pregnancy tests since I was four
weeks along, I was told my pregnancy test was
inconclusive. The only way to know for sure
was a sonogram.

10

See also King County Board of Health Staff Report, Briefing No. 17-B14, at 5 (June 15, 2017), https://kingcounty.legistar.
com/View.ashx?M=F&ID=5269982&GUID=C4A67A50-9E92-4A42BA4F-2217DFE71C1C [hereinafter King Cnty. Staff Report] (describing a pregnancy center waiting room that “looked like a
professional office” and had a framed “test site provider” certificate from the Washington State Department of Public Health,
even though it was not a licensed medical facility).

 11
I was taken into the examination room where
the woman in scrubs pulled a wand over my
belly and played the sound of the heartbeat
for me. She oohed and aahed and with a few
more quick swipes, she gave the baby a full
examination. She pronounced my baby
healthy and perfect. The whole procedure took
less than five minutes. I was never seen by a
doctor or nurse and my fetus had not received
a full medical examination. Though if I didn’t
know it beforehand, I would have assumed, as
many women do, that they had had a full
checkup.”
Id. at 399-401.
C. Breaches Of Patient Confidentiality
Pregnancy centers often ask clients “to fill out
forms soliciting personal information, including health
history, relationship status and work information with
no assurance of confidentiality,” N.Y.C. J.A. at 308, or
with assurances of confidentiality that the centers
later violate.11 This raises particular concerns in unlicensed facilities. “[I]n a room set up to look like a doctor’s office, many women do not know that there isn’t a
licensed medical professional giving them this information or that private health and contact information
may not be treated confidentially.” Id. at 312.
11

See, e.g., Complaint Ex. D-2 at 8, Tepeyac v. Montgomery
Cnty., 5 F. Supp. 3d 745 (D. Md. 2014) (No. 8:10-cv-01259-DKC),
ECF No. 1-5 [hereinafter Complaint Ex. D-2] (testimony of Laura
Berger).

 12
Pregnancy centers have used women’s personal
information to show up at their workplaces, id. at 33739, send them harassing texts, id. at 338, and sign
them up for pregnancy tracking and notifications without their consent.12 They have shared a woman’s personal information with other pregnancy centers, see
Complaint Ex. D-2, at 8; and even attempted to read
the medical records of a former patient into the record
at a public hearing.13
D. Medically And Legally Inaccurate Information
While some pregnancy centers seek to enhance
decision-making by providing information about abortion alternatives, others undermine informed decisionmaking by giving women inaccurate information about
abortion and contraception.
Some pregnancy centers provide women with
medical information about the risks of abortion and
contraceptives that is inconsistent with the medical
standard of care. For example, pregnancy centers often
tell clients that abortion causes breast cancer, see
12

Relating to Health: Hearing on S.B. 501 Before the S.
Comm. on Ways & Means, 29th Leg. at 117 (Haw. 2017),
https://www.capitol.hawaii.gov/Session2017/Testimony/SB501_SD1_
TESTIMONY_WAM_02-23-17_.PDF [hereinafter S. Comm. WAM
Hearing on S.B. 501] (testimony of Morgen Trube).
13
Relating to Health: Hearing on H. Comm. on Health, 29th
Leg. at 253-54 (Haw. 2017), https://www.capitol.hawaii.gov/
Session2017/Testimony/SB501_SD1_TESTIMONY_HLT_03-1617_.PDF (testimony of Ghazaleh Moayedi, DO).

 13
N.Y.C. J.A. at 946, 950; King Cnty. Staff Report at 5,
even though the American Cancer Society has concluded that “the scientific evidence does not support
the notion that abortion of any kind raises the risk of
breast cancer or any other type of cancer.”14 In another
common example, pregnancy centers often greatly exaggerate the risks of abortion, telling women that it “is
a dangerous procedure” and that they “will become
sterilized from the abortion and never able to have
children again.” N.Y.C. J.A. at 950; see also id. at 650
(“[C]ountless women” report “that they were told specifically from the staff at Crisis Pregnancy Centers
that they will never have another child again.”). Some
pregnancy centers also discourage contraceptive use
by telling clients that contraceptives cause sterility or
sexually transmitted diseases. Complaint Ex. D-2 at 6
(testimony of Eleanor Dayhoff-Brannigan) (describing
a pregnancy center giving misinformation about contraception, including that “birth control pills would
lead to sterility”); N.Y.C. J.A. at 315-16 (“According to
this [pregnancy center], Depo-Prevara [sic], a form of
contraception, causes HPV, a sexually transmitted infection.”).
The provision of medically inaccurate information
by pregnancy centers – many of which present themselves to the public as medical facilities – is widespread. In a 2010 investigation of pregnancy centers
throughout California, 40 percent advised that
14

Am. Cancer Soc’y, Abortion and Breast Cancer Risk (last
revised June 19, 2014), https://www.cancer.org/cancer/cancercauses/medical-treatments/abortion-and-breast-cancer-risk.html.

 14
hormonal birth control increases the risk of infertility,
60 percent advised that condoms were ineffective in reducing pregnancy and sexually transmitted diseases,
70 percent advised that abortion increases the risk of
breast cancer, and 85 percent advised that abortion increases the risk of infertility. Oakland City Council
LEC at 22:45.
Additionally, pregnancy centers sometimes lie to
women about whether and when abortion is legal.
Some pregnancy centers falsely “tell the Hispanic
women that abortion is illegal” and “[t]hat if they do
have abortions that they will be deported back to their
country.” N.Y.C. J.A. at 450. Others encourage women
to wait to decide about abortion by claiming that
“[a]bortion is legal through all nine months of pregnancy,” even when the procedure is not legal or not
available at later gestational ages. Balt. J.A. at 179. A
pregnancy center patient in New York was “shocked”
to learn that she had delayed her abortion decision until it was too late for the procedure, because the pregnancy center “had assured her she could have an
abortion in the third trimester.” N.Y.C. J.A. at 941. And
a California pregnancy center falsely advises that a
woman must undergo multiple steps – including an ultrasound – before obtaining an abortion, even though
California law does not require this.15
15

The center’s website tells women that they must first “Verify” a pregnancy via a “laboratory quality pregnancy test,” second
“Confirm” via a “limited obstetric ultrasound,” and third “Decide”
by speaking “with a trained pregnancy options consultant.” Informed Choices, Home, http://www.informed-choices.org/ (last

 15
E. False Information About Pregnancies
And Other Delay Tactics
At pregnancy centers that trade in deception, the
duplicity often culminates in delay tactics designed to
prevent women considering abortions from seeing a
provider until it is too late to terminate the pregnancy.
“When a woman is misled into believing that a clinic
offers services that it does not in fact offer, she loses
time crucial to the decision whether to terminate a
pregnancy. Under these circumstances a client may
also lose the option to choose a particular procedure, or
to terminate the pregnancy at all.” S.F., Cal., Admin.
Code § 93.2(9). Such delays may also lead to increased
safety risks and medical costs. Although abortion is a
safe medical procedure, the risks of abortion – and its
costs – increase as a woman advances through her
pregnancy. Balt. J.A. at 712. As a result, the longer a
woman is delayed in having an abortion, the riskier
and costlier the procedure becomes. Id.16 Similarly,
visited Feb. 22, 2018). It specifically states that “No matter what
you decide to do if your pregnancy test is positive, you will need
an ultrasound to confirm if you have a viable pregnancy and to
accurately date your pregnancy.” Informed Choices, About our Services, http://www.informed-choices.org/our-services (last visited
Feb. 22, 2018). However, California does not require that a woman
undergo an ultrasound before an abortion. See Kaiser Family
Foundation, State Ultrasound Requirements in Abortion Procedure: As of April 1, 2017, https://www.kff.org/womens-healthpolicy/state-indicator/ultrasound-requirements/?currentTimeframe=
0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:
%22asc%22%7D (last visited Feb. 22, 2018).
16
See also Appellant’s Excerpts of Record at 65, ¶ 29, First
Resort, Inc. v. Herrera, 860 F.3d 1263 (9th Cir. 2017) (No. 1515434), ECF 7-3.

 16
delays in access to the birth control method of a
woman’s choice can leave the woman and her partner
vulnerable to unintended pregnancy and sexually
transmitted disease. Id.; see also N.Y.C. J.A. at 640.
Care providers across the country testified about
encountering patients who sought abortions but could
not obtain them because of pregnancy center delay tactics. In one example, a woman went to a pregnancy center in the mistaken belief that they offered abortions.
N.Y.C. J.A. at 941. The center told her “she needed an
ultrasound before the procedure.” Id. “Then another
ultrasound.” Id. The center strung her along by telling
her they were “uncertain[ ] about how advanced her
pregnancy was.” Id. The woman’s pregnancy advanced
to the third trimester. When she finally sought an abortion at a hospital-based clinic, her doctor “had to tell
her it was no longer possible: she was well beyond the
legal limit for abortion in New York.” Id. The woman
was “shocked”; her pregnancy center counselor had assured her that she could have an abortion in her third
trimester of pregnancy. Id. After examining the
woman, her doctor found that there was no medical
reason why she should have had to wait for an abortion; her case was straightforward and her pregnancy
could have been dated with a single ultrasound. Id.
The doctor reported that this pattern of deception was
“not uncommon” in her experience. Id. at 942.
In another example, a pregnant 16-year-old girl
sought care at a pregnancy center, and they “delayed
doing an ultrasound several times,” and then told the
girl and her parents that “the pregnancy was not as far

 17
along as it actually was.” S. Comm. WAM Hearing on
S.B. 501 at 107. When the girl and her parents finally
sought care at a full-service practice, her pregnancy
was too advanced for her to obtain an abortion. Id. Her
doctor reported that upon hearing the news, “this 16
year-old girl was beyond grief and her parents were
understandably very upset. For two months this center
had deceived this family, and essentially forced this
girl into continuing her pregnancy.” Id.
These delay tactics are often deliberate. “[S]ome
girls are set up for procedures with appointments, only
to have these appointments canceled and rescheduled
time and time again, in an attempt to prolong the process past a point when a woman can have access to a
real and safe abortion procedure by a licensed provider.” N.Y.C. J.A. at 649; see also Balt. J.A. at 180 (describing similar practices). Some pregnancy centers
wait to transfer patients out of their care until the
pregnancy is at “20-24 weeks, because the center
knows that the patient can no longer terminate the
pregnancy.”17 A pregnancy center told a 15-year-old
who was 21 weeks pregnant that “she was too far
along” for an abortion, a false statement. N.Y.C. J.A. at
656, 660. A different pregnancy center told a patient
that she had “weeks” to make her decision, even
17

Letter from Muntu Davis, Cnty. Health Officer, and Kiko
Malin, Dir., Family Health Servs. Div., Alameda Cnty., Cal., to
Oakland City Council Members (June 26, 2016), https://oakland.
legistar.com/View.ashx?M=F&ID=4568298&GUID=949F4B1B3B0E-46B9-9451-77E4D44ADD98 [heareinafter Alameda Cnty.
Health Services Letter] (describing pregnancy center advertising
in low-income neighborhoods).

 18
though she “only had 10 days in which she was legally
able to seek termination.”18
These deceits also delay access to prenatal care. In
one instance, a pregnancy center delayed a patient’s
care, “asking her to return for subsequent visits until
she was well into her second trimester.” S. Comm.
WAM Hearing on S.B. 501 at 46-47. “Unfortunately the
patient had a serious medical condition and this delay
of care resulted in additional risks to her and the pregnancy. These risks could have been decreased had she
actually received prenatal care in the first trimester.”
Id.19
F. Pregnancy Center Clients Are Often
Vulnerable To Deception
Women who go to pregnancy centers are sometimes experiencing emotional and physical stress
that makes them especially susceptible to deception.
S.F., Cal., Admin. Code § 93.2(8). Domestic violence
18

Relating to Health: Hearing on H.B. 663 Before the H.
Comm. on Health, 29th Leg. 55-56 (Haw. 2017), https://www.capitol.
hawaii.gov/Session2017/Testimony/HB663_TESTIMONY_HLT_
02-02-17_.PDF (Testimony of Katelyn Stevens, PA-C).
19
See also Comments and Documents Relating to Disclosure
of Information by Limited Service Pregnancy Centers: Hearing on
BOH-17-04 Before the Bd. of Health, King Cnty. Bd. of Health at
81 (King Cnty., Wa. 2017), https://mkcclegisearch.kingcounty.gov/
View.ashx?M=F&ID=5452607&GUID=F536D4AF-3F70-468DB9CB-39FBE35565D2 (noting that inaccurate dating led a patient to “delay[ ] her prenatal care for months because she was
devastated because she thought the father of her baby was her
ex.”).

 19
increases in frequency and severity when women are
pregnant, and between four and nine percent of pregnant women are abused by their spouses or partners.
N.Y.C. J.A. at 320. Many pregnancy center clients are
vulnerable for additional reasons, including their age,
economic status, and lack of literacy. Balt. J.A. at 712.
These women “have even less general knowledge and
access to accurate reproductive health information
than other consumers.” Id. One New York City care
provider testified:
I work in the south Bronx and many of the patients that we serve are low income. Some of
them may have Medicaid, but in general I
would say it’s a population that experiences a
lot of barriers to accessing medical care. So in
that way, I think that these centers are particularly coercive because they prey on someone’s lack of health literacy, lack of access to
care. So these people are very desperate, especially if it’s a young woman experiencing an
unwanted pregnancy. Maybe she’s in an abusive relationship. These women are in crisis
and they’re desperate for help.
N.Y.C. J.A. at 342-43.20

20

See also Alameda Cnty. Health Services Letter; Relating to
Health: Hearing on S.B. 501 Before the S. Comms. on Commerce,
Consumer Protection & Health and on Judiciary and Labor, 29th
Leg. 1-2 (Haw. 2017), https://www.capitol.hawaii.gov/Session2017/
Testimony/SB501_TESTIMONY_CPH-JDL_02-03-17_LATE.PDF
(stating that pregnancy centers “disproportionately target teenagers, young women and women without easy access to actual
medical services”).

 20
II.

Pregnancy Center Disclosure Laws Should
Be Evaluated Under The Same Standard As
Other Reproductive Health Disclosure Laws

With the FACT Act, California has made the legislative judgment that the need for accurate information about care and services during pregnancy is
particularly acute, and has tailored disclosure requirements to address that need. Its legislative response is
analogous to the judgments that many other states
have made that women should be advised of the risks
of abortion, and this Court should apply the same
standard to the FACT Act as it has applied to other
reproductive health disclosure laws.
In Planned Parenthood v. Casey, this Court upheld
a Pennsylvania statute requiring abortion providers to
give verbal disclosures about the risks of abortion and
the gestational age of the fetus, as well to offer state
handouts listing agencies that offer pregnancy assistance and abortion alternatives. 505 U.S. 833 (1992). In
the 25 years since Casey, over 30 states have enacted
laws requiring doctors or medical facilities to make
pre-abortion disclosures to patients.21 Many of these
21

See Ala. Code § 26-23A-4; Alaska Stat. §§ 18.16.060,
18.05.032; Ariz. Rev. Stat. Ann. § 36-2153; Ark. Code Ann. §§ 2016-1703 to 20-16-1705; Conn. Gen. Stat. § 19a-601; Fla. Stat.
§§ 390.0111(3), 390.025; Ga. Code Ann. §§ 31-9A-3 to 31-9A-4;
Idaho Code Ann. § 18-609; Ind. Code § 16-34-2-1.1 (§ 16-34-21.1(a)(1)(K), invalidated by Planned Parenthood of Ind. & Ky., Inc.
v. Comm’r, Ind. State Dep’t of Health, 265 F. Supp. 3d 859 (S.D.
Ind. 2017), appeal filed, No. 17-3163 (7th Cir. Oct. 19, 2017)); Kan.
Stat. Ann. §§ 65-6709 to 65-6710; Ky. Rev. Stat. Ann. §§ 311.725,
311.727, invalidated by EMW Women’s Surgical Ctr., P.S.C. v.
Beshar, ___ F. Supp. 3d ___, 2017 WL 4288906 (W.D. Ky. Sept. 27,

 21
laws neatly mirror the FACT Act, requiring abortionperforming physicians to disclose state resources for
maternity care and social services.22 Arkansas, for example, requires distributing handouts that include
“[g]eographically indexed materials that inform a
pregnant woman seeking an abortion of public and
2017), appeal filed EMW Women’s Surgical Ctr., P.S.C. v. Beshar,
No. 17-6183 (6th Cir. Oct. 12, 2017); La. Rev. Stat. Ann.
§§ 40:1061.15 to 40:1061.17; Me. Rev. Stat. tit. 22, §§ 1597-A,
1599-A; Mich. Comp. Laws § 333.17015; Minn. Stat. §§ 145.4242145.4243; Miss. Code Ann. §§ 41-41-33, 41-41-35; Mo. Rev. Stat.
§§ 188.027, 188.039; Neb. Rev. Stat. §§ 28-327 to 28-327.01 (provisions requiring disclosure of risk factors of abortion procedures
held likely to violate First Amendment and enjoined in Planned
Parenthood of Heartland v. Heineman, 724 F. Supp. 2d 1025 (D.
Neb. 2010)); Nev. Rev. Stat. § 442.253; N.C. Gen. Stat. §§ 90-21.82,
90-21.83, 90-21.85; N.D. Cent. Code §§ 14-02.1-02 to 14-02.1-02.1;
Ohio Rev. Code Ann. §§ 2317.56, 2919.192; Okla. Stat. tit. 63, §§ 1738.2, 1-738.3, 1-746.2, 1-746.3; R.I. Gen. Laws § 23-4.7-3; S.C.
Code Ann. §§ 44-41-330, 44-41-340; S.D. Codified Laws §§ 34-23A10.1, 34-23A-10.3 (upheld on First Amendment challenge in
Planned Parenthood Minn., N.D., S.D. v. Rounds, 686 F.3d 889 (8th
Cir. 2012) (en banc); Planned Parenthood Minn., N.D., S.D. v.
Rounds, 530 F.3d 724 (8th Cir. 2008) (en banc)); Tex. Health &
Safety Code Ann. §§ 171.012, 171.0123, 171.013, 171.015 (upheld
on First Amendment challenge in Tex. Med. Providers Performing
Abortion Servs. v. Lakey, 667 F.3d 570 (5th Cir. 2012)); Utah Code
Ann. §§ 76-7-305, 76-7-305.5, 76-7-305.6; Va. Code Ann. § 18.2-76;
W. Va. Code §§ 16-2I-2–16-2I-3; Wis. Stat. § 253.10.
22
The State of Texas unsuccessfully tries to distinguish
these as informed consent laws “giving a patient information to
assess the risks and consequences of a procedure a doctor in a
certain medical facility is about to perform.” See Br. of Amicus Curiae State of Texas, et al. Supporting Petitioner, at 3. But at least
eighteen of these laws have provisions that mirror the FACT Act
by providing women with information about state-funded abortion alternatives, not medical information about abortion procedures. See infra n.25.

 22
private agencies and services available to assist her
through pregnancy, upon childbirth, and while her
child is dependent, including without limitation adoption agencies.”23 Ark. Code Ann. § 20-16-1704. Alaska
requires abortion providers to give patients “information concerning the eligibility for medical assistance benefits for prenatal care, childbirth, neonatal
care, abortion services, women’s health care, and contraception” and “geographically indexed material designed to inform a person of public and private
agencies, services, clinics, and facilities that are available to assist a woman with the woman’s reproductive
choices,” including entities providing or assisting with
adoption services, counseling, and contraceptive options. Alaska Stat. §§ 18.05.032(a)(1)-(3), 18.16.060(b).
In South Dakota, at least 24 hours prior to the abortion
procedure, doctors must verbally inform patients “that
medical assistance benefits may be available for prenatal care, childbirth, and neonatal care” and “the
name, address, and telephone number of a pregnancy
help center in reasonable proximity of the abortion

23

The Arkansas disclosure also mandates the following
statement: “There are many public and private agencies willing
and able to help you to carry your child to term and to assist you
and your child after your child is born, whether you choose to keep
your child or to place her or him for adoption. The State of Arkansas strongly urges you to contact one or more of these agencies
before making a final decision about abortion. The law requires
that your physician or his or her agent give you the opportunity
to call agencies like these before you undergo an abortion.” See
also Ohio Rev. Code Ann. §§ 2317.56(B)(2)(b), 2317.56(C)(1) (similar).

 23
facility where the abortion will be performed.”24 S.D.
Codified Laws § 34-23A-10.1(2)(a), (c). In total, at least
18 states require abortion providers to give patients
seeking abortions information or written materials
about agencies that are available to assist women during pregnancy, childbirth, and beyond.25 Depending on
the state, these materials may include contact information for agencies that offer ultrasounds, adoption
services, family planning and natural family planning,
and limited-service pregnancy centers.
Some states require disclosures about other reproductive health matters. California and Arizona, for example, require factual disclosures before egg donation.
See Cal. Health & Safety Code § 125335; Ariz. Rev.
Stat. Ann. § 36-1702. At least seven states require doctors to provide specific disclosures to mammogram

24

Texas’s requirements are quite similar. See Tex. Health &
Safety Code Ann. §§ 171.012(a)(2)-(3), 171.014(a)(2), 171.015(1)(a);
see also 18 Pa. Cons. Stat. §§ 3205(2)-(3), 3208(a)(1).
25
See Alaska Stat. §§ 18.05.032(a)(1)-(3), 18.16.060(b); Ark.
Code Ann. § 20-16-1704; Ga. Code Ann. §§ 31-9A-3(2)(C)-(D), 319A-4(a)(1)-(1.1); Idaho Code Ann. § 18-609(2), (4); Kan. Stat.
Ann. §§ 65-6709(b)(2), 65-6710(a)(1); Ky. Rev. Stat. Ann.
§ 311.725(1)(b)(1), (2)(a); Minn. Stat. §§ 145.4242(a)(2)(iii),
145.4243(a)(1); Miss. Code Ann. §§ 41-41-33(1)(b)(iv), 41-4335(1)(a); Neb. Rev. Stat. § 28-327(1)(a), (2)(d); N.D. Cent. Code
§§ 14-02.1-02(11)(b)(1)-(2), 14-02.1-02.1(1)(a); Okla. Stat. tit. 63,
§§ 1.738.2(B)(1)(a)(5), 1.738.3(A)(1)(a); 18 Pa. Cons. Stat.
§§ 3205(2)-(3), 3208(a)(1); S.C. Code Ann. §§ 44-41-330(A)(2), 4441-340(A)(1); S.D. Codified Laws § 34-23A-10.1(2)(a), (c); Utah
Code Ann. §§ 76-7-305(2)(a), 76-7-305.5(2)(g)-(k); Va. Code Ann.
§ 18.2-76(D)(5), (F)(1); W. Va. Code §§ 16-2I-2(b)(3)-(4), 16-2I3(a)(1); Wis. Stat. § 253.10(c)(1)(L)(d), (d)(1).

 24
patients about breast tissue density,26 at least five
states require that patients be informed about alternative treatments for breast cancer,27 and Texas requires
midwives to provide written disclosures in Spanish
and English related to the limitations of midwifery
practice. See Tex. Occ. Code § 203.351. While many of
these disclosures are linked to specific medical procedures, some are not. Missouri, for example, requires
health facilities to disclose in the event of a miscarriage that the patient has a right to determine the disposition of the fetus. See Mo. Rev. Stat. § 194.387.

26

California, Connecticut, Illinois, New York, Texas, Utah,
and Virginia require specific notice be given post-mammogram regarding breast density; each state specifies in a script the particular language to be given. See American College of Obstetricians
and Gynecologists (ACOG), State Legislative Mandates: Mammography & Breast Density (2012), http://www.leg.state.nv.us/
Session/77th2013/Exhibits/Senate/HHS/SHHS1054W.pdf (detailing state legislative efforts to require disclosure to women with
dense breast tissue).
27
See, e.g., Cal. Health & Safety Code § 109275(b), (c)(1) (failure to inform patients in writing of alternative treatments for
breast cancer is unprofessional conduct; state officials must develop standard disclosure form); Cal. Health & Safety Code
§ 109280 (requiring state officials to develop written disclosure
form for alternative treatments for prostate cancer and urging
physicians to disclose that information to patients); Fla. Stat.
Ann. § 458.324; La. Rev. Stat. Ann. § 40:1103.4 (requiring discussion of alternative methods of treating breast cancer); Me. Rev.
Stat. tit. 24, § 2905-A (requiring information be provided, orally
and in writing, about alternative efficacious methods of treatment
of breast cancer); Mich. Comp. Laws § 333.17513 (requiring doctor
to inform breast cancer patients, orally and in writing, about alternative methods of treatment of the cancer).

 25
These reproductive health disclosure laws do not
violate the First Amendment by regulating some
speakers but not others. The same is true of the FACT
Act. Contrary to Petitioners’ argument, Pet’rs’ Br. 3139, regulations that apply to pregnancy centers are not
ipso facto viewpoint discrimination. Even assuming
that all pregnancy centers oppose abortion, “[t]hat petitioners all share the same viewpoint regarding abortion does not in itself demonstrate that some invidious
content- or viewpoint-based purpose motivated the issuance of the [regulations].” Madsen v. Women’s Health
Ctr., Inc., 512 U.S. 753, 763 (1994). As the Court recognized in McCullen, 134 S. Ct. at 2532, a legislature
faced with a limited problem may reasonably enact a
limited solution. “When selecting among various options for combating a particular problem, legislatures
should be encouraged to choose the one that restricts
less speech, not more.” Id. Thus, McCullen held that a
buffer zone law did not discriminate by viewpoint, even
though it applied only to abortion clinics, and not to
other healthcare facilities. Id. In other contexts as well,
the Court recognizes that “policymakers may focus on
their most pressing concerns.” Williams-Yulee v. Fla.
Bar, 135 S. Ct. 1656, 1668 (2015). The Court has “accordingly upheld laws – even under strict scrutiny –
that conceivably could have restricted even greater
amounts of speech in service of their stated interests.”
Id.
Further, so long as disclosure laws simply require
a commercial speaker to provide “purely factual and
uncontroversial information,” they are subject to less

 26
exacting scrutiny. Zauderer v. Office of Disciplinary
Counsel of Supreme Court of Ohio, 471 U.S. 626, 651
(1985); accord Milavetz, Gallop & Milavetz, P.A. v.
United States, 559 U.S. 229, 249-50 (2010). By their nature, these laws compel regulated entities to convey
messages they likely would not otherwise speak, and
that are often contrary to the success of the entity.28 Yet
because disclosure regulations normally have only a
“minimal” effect on First Amendment interests, they
need only be “reasonably related to the State’s interest.” Zauderer, 471 U.S. at 651.
The straightforward Zauderer analysis should apply to this case, and under that test the California
FACT Act easily survives review. Pregnancy centers
are commercial speakers,29 and the FACT Act
28

See, e.g., 15 U.S.C. § 1333 (labeling requirements for cigarettes, including “Smoking can kill you”); La. Rev. Stat. Ann.
§ 27.249 (requiring casinos to post notices about resources for
compulsive gamblers); S.C. Code Ann. § 40-83-30 (requiring nonlawyers who provide immigration services to post notices that
they are not lawyers).
29
Amici agree with the United States that Zauderer should
apply regardless of whether the regulated entity charges for services. See Br. Amicus Curiae of United States Supporting Neither
Party at 20 [hereinafter SG Brief ]. There is no dispute that pregnancy centers provide commercially valuable services to their clients, and the First Amendment inquiry should not turn on
whether a medical clinic charges directly for its services, offers
them subject to insurance or government reimbursement, or
funds them through corporate or individual third party donations.
Such a rule would threaten to insulate pro bono service providers
from regulation, and thus jeopardize the ability of governments
to protect the most vulnerable of their residents from unsavory or
unsafe practices.

 27
disclosures are purely factual statements that relate to
their actual or perceived practice of medicine.30 The
disclosure for licensed facilities states that public programs offer free or low-cost reproductive health care
services – an undisputed fact – and provides a county
telephone number for accessing those services. This notice directly advances the State’s “strong interest in
protecting a woman’s freedom to seek medical and
counseling services in connection with her pregnancy.”
Madsen, 512 U.S. at 767. The disclosure for unlicensed
clinics is even simpler, merely informing clients that
the clinic is not a licensed medical facility. This kind of
requirement to disclose professional status survives
any level of scrutiny. See Riley v. Nat’l Federation of the
Blind of N. C., Inc., 487 U.S. 781, 799 n.11 (1988); Evergreen Ass’n, Inc. v. City of New York, 740 F.3d 233, 249
(2d Cir.), cert. denied, 135 S. Ct. 435 (2014); Centro Tepeyac v. Montgomery Cnty., 722 F.3d 184, 189-90 (4th
Cir. 2013).
Finally, there is no merit to the United States’ suggestion that a different standard should apply here because abortion is “controversial.”31 As used in
Zauderer, the word “uncontroversial” modifies “information” and refers to the facts required by the disclosure. It is these facts that must be uncontroversial – or
30

This provides an independent basis for upholding the disclosures, which are “reasonable . . . regulation by the State” of “the
practice of medicine,” Casey, 505 U.S. 884, both with respect to
licensed practitioners and to unlicensed ones who are deceiving
patients about their qualifications.
31
See SG Br. at 24 (describing federal statutes requiring
written or posted disclosures).

 28
objectively accurate – not the broader subject of the
law. See Discount Tobacco City & Lottery, Inc. v. United
States, 674 F.3d 509, 569 (6th Cir. 2012) (“[W]hether a
disclosure is scrutinized under Zauderer turns on
whether the disclosure conveys factual information . . .
not on whether the disclosure emotionally affects its
audience or incites controversy.”). The logic of Zauderer
does not depend on whether the subject of the law is
controversial; a pregnancy center has the same “minimal” interest in withholding information about the
scope of services it provides, or whether the state offers
free services elsewhere, as any other speaker who is
offering commercially valuable goods or services to the
public. See Zauderer, 471 U.S. at 651. Accordingly, this
Court should not adopt a more stringent standard for
factual disclosures merely because they may occur in a
broader context that carries political sensitivities.
Amici urge the Court to maintain a consistent
standard for evaluating mandatory disclosures by facilities that serve pregnant patients. The same standard should apply, regardless of whether it is imposed
on providers who offer abortions or those who do not.
And the standard should not change based on the perceived political sensitivity of the disclosure. Such a test
is not only unwarranted for commercial speech but
would put courts in the untenable position of deciding
which topics are too politically sensitive for regulation.
The United States’ proposed rule is unworkable at
best, and creates more constitutional problems than it
solves.

 29
Further, the FACT Act survives constitutional review, regardless of the level of scrutiny applied. As
amici’s records demonstrate, pregnancy centers frequently deceive pregnant women and impede their
ability to see other service providers. Pregnant women
have a short period of time to make life-altering decisions, “[a]nd the more [they] know, the better decisions
can be made.” Sorrell v. IMS Health Inc., 564 U.S. 552,
578 (2011). The FACT Act disclosures advance California’s compelling interests in combating consumer deception, protecting public health, and promoting
informed decision-making, and they should be upheld.
------------------------------------------------------------------

 30
CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted,
DENNIS J. HERRERA
City Attorney
CHRISTINE VAN AKEN
YVONNE R. MERÉ
MATTHEW GOLDBERG
MOLLIE M. LEE
Counsel of Record
CITY ATTORNEY’S OFFICE
City Hall Room 234
One Dr. Carlton B. Goodlett Pl.
San Francisco, CA 94102
Telephone: (415) 554-4290
mollie.lee@sfcityatty.org
Attorneys for the City and
County of San Francisco

BARBARA J. PARKER
City Attorney
MARIA BEE
ERIN BERNSTEIN
MALIA MCPHERSON
OFFICE OF THE OAKLAND
CITY ATTORNEY
1 Frank H. Ogawa Plaza
Oakland, CA 94612
Attorneys for the
City of Oakland
Solicitor ANDRE M. DAVIS
SUZANNE SANGREE
BALTIMORE CITY
LAW DEPARTMENT
100 North Holliday Street
Room 109
Baltimore, MD 21202
(443) 388-2190
Attorneys for the
City of Baltimore

 31
ZACHARY W. CARTER
Corporation Counsel
for the City of New York
100 Church Street
New York, NY 10007
Attorney for the
City of New York

MICHAEL N. FEUER
City Attorney
JAMES P. CLARK
THOMAS P. PETERS
BLITHE SMITH BOCK
SHAUN DABBY JACOBS
OFFICE OF THE LOS
ANGELES CITY ATTORNEY
JAMES R. WILLIAMS
200 N. Main Street,
County Counsel
7th Floor
COUNTY OF SANTA CLARA
Los Angeles, California
70 W. Hedding Street, East Wing
90012
9th Floor
Attorneys for the
San Jose, California 95110
City of Santa Clara
Attorney for the County of
Santa Clara, California