d
No. 16-1140
IN THE

Supreme Court of the United States
NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES,
dba 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 AMICI CURIAE EQUAL RIGHTS
ADVOCATES, PLANNED PARENTHOOD AFFILIATES OF
CALIFORNIA, CALIFORNIA WOMEN LAWYERS,
HADASSAH, AND THE FAMILY VIOLENCE APPELLATE
PROJECT IN SUPPORT OF RESPONDENTS

SANFORD JAY ROSEN
Counsel of Record
GAY CROSTHWAIT GRUNFELD
DEVIN W. MAUNEY
ROSEN BIEN GALVAN
& GRUNFELD LLP
50 Fremont Street, 19th Floor
San Francisco, California 94105
(415) 433-6830
srosen@rbgg.com
Counsel for Amici Curiae
Equal Rights Advocates,
Planned Parenthood Affiliates
of California, California
Women Lawyers, Hadassah,
and the Family Violence
Appellate Project

 i
TABLE OF CONTENTS
PAGE

TABLE OF AUTHORITIES ...................................... iii
INTEREST OF AMICI CURIAE ................................ 1
INTRODUCTION AND SUMMARY OF
ARGUMENT ....................................................... 3
ARGUMENT ............................................................... 7
I.

CRISIS PREGNANCY CENTERS USE
DECEPTIVE TACTICS TO LURE IN
WOMEN, GIVE THEM MEDICALLY
INACCURATE INFORMATION, AND
UNDERMINE THEIR ACCESS TO
REPRODUCTIVE HEALTHCARE .....................7
A. CPCs Commonly Use Deception to Get
Women in the Door .........................................8
B. CPCs Spread Medical Misinformation,
Delay Efforts to Find Appropriate
Care, and Endanger Women
Sometimes Through Incompetence ..............14

II.

CPCs’ DECEPTIVE TACTICS AND
MISINFORMATION HARM WOMEN,
ESPECIALLY LOW-INCOME AND
OTHER VULNERABLE WOMEN,
JEOPARDIZING THEIR LIVES AND
HEALTH AND AT GREAT COST TO
THE PUBLIC .....................................................20

 ii
PAGE

III. BOTH UNLICENSED AND LICENSED
CPCs ENGAGE IN REGULATORY
EVASION THAT THE REPRODUCTIVE
FACT ACT APPROPRIATELY
REMEDIES WITHOUT UNDUE
RESTRICTION ON THE CPCs .........................26
A. Unlicensed CPCs Deliberately Evade
California’s Healthcare Licensing
Regime ...........................................................27
B. Licensed CPCs Evade Regulations that
Would Require Them to Provide
Referrals for Medically Appropriate
Care ...............................................................29
C. The Reproductive FACT Act’s Notice
Requirement Appropriately Applies to
Licensed CPCs and Exempts Licensed
Clinics which Provide All Services
Listed on the FACT Act’s Notice ..................32
1. The Reproductive FACT Act
Provides Women a Minimally
Intrusive Escape Hatch from the
Trap Set by Licensed CPCs .....................32
2. The FACT Act Reasonably Exempts
from the Licensed Clinic Notice
Requirement those Licensed Clinics
which Provide All Services Listed
on the FACT Act’s Notice ........................33
CONCLUSION ..........................................................35

 iii
TABLE OF AUTHORITIES
PAGE(S)

CASES
Fargo Women’s Health Org., Inc. v. Larson,
381 N.W.2d 176 (N.D. 1986) ..................................9
First Resort, Inc. v. Herrera,
860 F.3d 1263 (9th Cir. 2017) .............. 7, 13, 16, 20
Lewis v. Pearson Found., Inc.,
908 F.2d 318 (8th Cir.), on reh’g, 917 F.2d
1077 (8th Cir. 1990)..............................................10
Nat’l Inst. of Family & Life Advocates v. Harris,
839 F.3d 823 (9th Cir. 2016) ................................28
Schenck v. United States,
249 U.S. 47 (1919) ..................................................6
Whitney v. California,
274 U.S. 357 (1927) ................................................3
Zauderer v. Office of Disciplinary Counsel of
the Sup. Ct. of Ohio,
471 U.S. 626 (1985) ..............................................29
STATUTES
Cal. Health & Safety Code § 1200.......................26, 27
Cal. Health & Safety Code § 1204.......................29, 30
Cal. Health & Safety Code § 1206.......................29, 30
Cal. Health & Safety Code § 123471 ...................32, 33

 iv
PAGE(S)

Cal. Health & Safety Code § 123472 ................. passim
Cal. Welf. & Inst. Code § 24005 ..........................30, 31
OTHER AUTHORITIES
2015 Cal. Legis. Serv. Ch. 700 (A.B. 775) ...........20, 23
About NIFLA, National Institute of Family and
Life Advocates, https://nifla.org/about-nifla/
(last visited Feb. 25, 2018) ...............................5, 25
A Comprehensive Medical Conversion Program,
National Institute of Family and Life
Advocates, https://nifla.org/life-choiceproject-tlc/ (last visited Feb. 25, 2018).................30
Amanda Marcotte, New Anti-Choice Tactic:
Pretend to Be Pro-Choice,
Slate (Oct. 9, 2014, 12:52 PM), available
at: http://www.slate.com/blogs/
xx_factor/2014/10/09/third_box_anti_
abortion_clinic_rebrands_itself_as_a_
pro_choice_counseling.html .................................13
Analysis of California Senate Bill (SB) 999
Contraceptives: Annual Supply, Cal. Health
Benefits Review Program (March 28, 2016),
http://analyses.chbrp.com/document/
view.php?id=1207 .................................................22
Assemb. Comm. on Judiciary, Reproductive
FACT Act, Cal. Assemb. Reg. Sess.
2015-2016 (April 16, 2015) .............................29, 33

 v
PAGE(S)

Australian Institute for Judicial
Administration, Sexual and reproductive
abuse, National Domestic and Family
Violence Bench Book § 3.1.2 (May 2017),
http://dfvbenchbook.aija.org.au/understand
ing-domestic-and-family-violence/sexualand-reproductive-abuse/ .......................................24
Cal. Dep’t of Health Care Svcs., Family
PACT Overview (June 2015),
http://www.familypact.org/Providers/
provider-resources/TipSheets/
Overview6-15ADA.pdf..........................................30
Cal. Dep’t of Health Care Svcs., Family PACT
Program Standards (Jan. 2018), available
at: http://www.familypact.org/Providers/
policies-procedures-and-billing-instructions .......34
California Planned Parenthood Education
Fund, Inc. Fact Sheet,
Planned Parenthood Affiliates of
California (2015), available at:
http://www.ppactionca.org/voterresources/fact-sheets.html ...................................21
Casey Watters et al., Pregnancy Resource
Centers: Ensuring Access and Accuracy of
Information, Public Law Research Institute,
U.C. Hastings College of Law
(April 1, 2011) .........................................................8

 vi
PAGE(S)

Comm. on Health Care for Underserved
Women, Opinion Number 586, Health
Disparities in Rural Women, American
College of Obstetricians and Gynecologists
(February 2014), https://www.acog.org/
Clinical-Guidance-and-Publications/
Committee-Opinions/Committee-on-HealthCare-for-Underserved-Women/HealthDisparities-in-Rural-Women ................................24
Crisis Pregnancy Centers Lie: The Insidious
Threat to Reproductive Freedom,
NARAL Pro-Choice America (2015)
(“NARAL National CPC Report”),
https://www.prochoiceamerica.org/
wp-content/uploads/2017/04/cpc-report2015.pdf ........................................................ passim
Frequently Asked Questions,
Heartbeat International,
https://www.heartbeatservices.org/aboutus/faqs#CN (last visited Feb. 24, 2018) .................5
Hayley Tsukayama, Google removes “deceptive”
pregnancy center ads, Wash. Post
(April 28, 2014), https://www.washington
post.com/news/the-switch/wp/2014/04/28/
naral-successfully-lobbies-google-to-takedown-deceptive-pregnancy-center-ads/?
utm_term=.16d848a566c1.......................... 4, 11, 13
Heartbeat Program Policies,
Heartbeat International,
https://www.heartbeatservices.org/about-us
(last visited Feb. 25, 2018) ...............................5, 12

 vii
PAGE(S)

Jenny Kutner, Crisis pregnancy center tells
woman her IUD is “your baby,” plus
countless other lies, Salon (March 18, 2015),
https://www.salon.com/2015/03/18/crisis_
pregnancy_center_tells_woman_her_iud_
is_your_baby_plus_countless_other_lies/ ......19, 20
Julian Hattem, NARAL adds Yahoo success
after Google, The Hill (May 9, 2014),
http://thehill.com/policy/technology/205701after-pressure-yahoo-drops-crisispregnancy-center-ads ...........................................14
Kaiser Permanente: Refers Pregnant Patients
to Anti-Abortion Counseling Clinic,
California Healthline (Jan. 15, 1999),
https://californiahealthline.org/morningbreakout/kaiser-permanente-referspregnant-patients-to-antiabortioncounseling-clinic/ ..................................................13
Kathryn Doyle, Reproductive Control Can be
a Form of Partner Violence, Reuters
(September 4, 2015), https://www.reuters.com/
article/us-health-sexassault-coercion/
reproductive-control-can-be-a-form-of-partnerviolence-idUSKCN0R42CD20150904 ..................25
Katie J.M. Baker, New National Women’s
Clinic “Third Box” Has Anti-Abortion Past,
BuzzFeed News (October 8, 2014),
https://www.buzzfeed.com/katiejmbaker/
new-national-womens-clinic-third-box-hasanti-abortion-past?utm_term=
.lfGbd29Z6#.twBnE0klg .......................................12

 viii
PAGE(S)

Laura Santhanam, Why is the teen birth rate so
much higher in rural areas?, PBS
(Nov 16, 2016 10:28 AM),
https://www.pbs.org/newshour/health/
teen-birth-rate-higher-rural-areas ......................23
Lisa Pruitt, Toward a Feminist Theory of the
Rural, 2007 UTAH L. REV. 421 (2007) ..................24
Medical Clinic Conversion, National Institute
of Family and Life Advocates,
https://nifla.org/medical-clinic-conversion/
(last visited Feb. 25, 2018) ...................................29
Minority Staff of H. Comm. on Gov’t Reform,
109th Cong., False and Misleading Health
Information Provided by Federally Funded
Pregnancy Resource Centers (July 2006)
(“Waxman Report”)...........................................4, 16
Molly Redden, One State Finally Cracked
Down on Deceptive Anti-Abortion Pregnancy
Centers, Mother Jones (Oct. 12, 2015),
https://www.motherjones.com/politics/
2015/10/state-just-became-first-crackdown-deceptive-anti-abortion-pregnancycenters/ ............................................................19, 26
Nicole Georges et al., Yahoo and Google are
Still Running Deceptive Anti-Abortion Ads,
Vice News (May 9, 2014 12:20 PM),
https://news.vice.com/article/yahoo-andgoogle-are-still-running-deceptive-antiabortion-ads ..........................................................14

 ix
PAGE(S)

Pam Belluck, Pregnancy Centers Gain
Influence in Anti-Abortion Arena,
N.Y. Times (Jan. 4, 2013),
http://www.nytimes.com/2013/01/05/
health/pregnancy-centers-gain-influencein-anti-abortion-fight.html?_r=0
&pagewanted=all ...........................................15, 16
Pregnancy Care Clinic,
www.unplannedparenthood.org
(last visited Feb. 25, 2018) ...................................10
Pregnancy Center Standards of Affiliation, Care
Net (January 2013), http://cdn2.hubspot.net/
hub/367552/file-2184386735-pdf/Preg-CenterStandards-of-Affilition-1-13-C.pdf?
t=1418138924001 .............................................5, 12
Rachel Camp, Coercing Pregnancy,
21 Wm. & Mary J. Women & L. 275 (2015) ........24
Regulating Disclosure of Services and
Sponsorship of Crisis Pregnancy Centers,
Policy Number 20113, American Public
Health Association (Nov. 1, 2011),
https://www.apha.org/policies-andadvocacy/public-health-policystatements/policy-database/2014/
07/22/08/33/regulating-disclosure-ofservices-and-sponsorship-of-crisispregnancy-centers ..............................................7, 8

 x
PAGE(S)

Robin Abcarian, Going undercover at crisis
pregnancy centers, L.A. Times
(May 1, 2015), http://www.latimes.com/
local/abcarian/la-me-0501-abcarian-crisispregnancy-20150501-column.html ...... 4, 16, 18, 19
S. Comm. on Health, Reproductive FACT Act 4,
Cal. S. Reg. Sess. 2015-2016 (May 4, 2015).....8, 22
See Our Services,
Fallbrook Pregnancy Resource Center,
http://www.fallbrookprc.com/Our-Services
(last visited Feb. 25, 2018) .............................25, 28
Services, Pregnancy Care Clinic,
http://www.supportpcc.com/services/
(last visited Feb. 25, 2018) .............................11, 25
State Facts About Unintended Pregnancy:
California, Guttmacher Institute (2017),
https://www.guttmacher.org/sites/default/
files/factsheet/up-ca.pdf........................................21
State Facts on Publicly Funded Family
Planning Services: California, Guttmacher
Institute (September 2017),
https://www.guttmacher.org/factsheet/state-facts-publicly-fundedfamily-planning-services-california#1 .................21
Susan A. Cohen, Abortion and Mental Health:
Myths and Realities,
Guttmacher Policy Review, Vol. 9, Issue 3
(Aug. 1, 2006), https://www.guttmacher.org/
gpr/2006/08/abortion-and-mental-healthmyths-and-realities#boxref1 ................................16

 xi
PAGE(S)

Tara Culp-Ressler, “Crisis Pregnancy Center”
Tells Women Her IUD Was A Baby,
ThinkProgress, (March 13, 2015, 1:49 PM),
https://thinkprogress.org/crisis-pregnancycenter-tells-woman-her-iud-was-a-baby46b1b5eb8237/ .................................... 15, 18, 20, 27
The California Healthcare Landscape, The
Henry J. Kaiser Family Foundation
(Aug. 26, 2015), https://www.kff.org/healthreform/fact-sheet/the-california-healthcare-landscape/ .....................................................23
Ultrasound May End Abortion, Care Net
(June 5, 2003), https://www.carenet.org/press-release-060503 ...............................30
Unintended Pregnancy In the United States,
Guttmacher Institute (September 2016),
https://www.guttmacher.org/sites/default/
files/factsheet/fb-unintended-pregnancyus_0.pdf .................................................................22
Unmasking Fake Clinics: The Truth About
Crisis Pregnancy Centers in California,
NARAL Pro-Choice California Foundation
(2010) (“California CPC Investigation”),
available at: https://www.sfcityattorney.org/
wp-content/uploads/2015/08/UnmaskingFake-Clinics-The-Truth-About-CrisisPregnancy-Centers-in-California-.pdf ......... passim
Waiting Periods for Abortion,
Guttmacher Institute (January 2018),
https://www.guttmacher.org/evidenceyou-can-use/waiting-periods-abortion .................20

 xii
PAGE(S)

Why Ultrasounds Matter for Women Planning
Abortion, Care Net (Dec. 14, 2014),
https://www.care-net.org/center-insightsblog/why-ultrasounds-matter-for-womenplanning-abortion........................................................30

 1
INTEREST OF AMICI CURIAE 1
Equal Rights Advocates, founded in 1974, is a
national non-profit legal advocacy organization
dedicated to protecting and expanding economic and
educational access and opportunities for women and
girls. In concert with ERA’s commitment to securing
gender equity in the workplace and in schools, ERA
seeks to preserve women’s right to reproductive choice
and protect women’s access to health care, including
safe, legal contraception and abortion. In addition to
litigating cases on behalf of workers and students and
providing free legal advice and counseling to hundreds
of women each year, ERA has participated in
numerous amicus briefs in this Court in cases affecting
these rights.
Planned Parenthood Affiliates of California is
a not-for-profit organization that leads the state-wide
public policy and advocacy work on behalf of the seven
separately incorporated Planned Parenthood affiliates
in California. PPAC’s affiliates operate 115 health
centers, handling approximately 1.5 million patient
visits each year. Affiliated health centers offer a full
range of reproductive healthcare, and in some cases,
primary care. PPAC’s mission is to create a safe
climate where individuals have universal and
unfettered access to reproductive healthcare services
and are free to follow their own beliefs, values, and
moral codes when making their own healthcare
decisions.

1

No counsel for a party authored this brief in whole or in
part, and no counsel or party made a monetary contribution to
the preparation or submission of this brief. All parties have
consented in writing to the filing of this brief.

 2
California Women Lawyers is a non-profit
organization chartered in 1974. CWL is the only
statewide bar association for women in California, and
maintains a primary focus on advancing women in the
legal profession. CWL works to better the position of
women in society and to eliminate all inequities based
on sex. CWL has participated in a wide range of cases
to secure the equal treatment of women.
Hadassah, the Women’s Zionist Organization of
America, Inc., founded in 1912, is the largest Jewish
and women’s membership organization in the United
States, with over 330,000 Members, Associates and
supporters nationwide. While traditionally known for
its role in developing and supporting healthcare and
other initiatives in Israel, Hadassah has longstanding
commitments to improving healthcare access in the
United States, particularly with regard to the healthcare
needs of women. Hadassah strongly supports full and
complete access to reproductive healthcare services
and a woman’s right to make health decisions
according to her own religious, moral and ethical
values, and recognizes the role that reproductive
freedom plays in women’s empowerment, economic
equity and security.
Family Violence Appellate Project is the only
nonprofit organization in California dedicated to
representing domestic violence survivors in civil legal
appeals for free.
FVAP represents low-income
survivors who need to appeal dangerous trial court
decisions that leave them or their children at risk of
ongoing abuse. Partnering with pro bono attorneys
from California’s top law firms and corporate legal
teams, FVAP helps abuse survivors throughout
California get the safety and justice they deserve.
FVAP’s goal is to empower abuse survivors through
the court system and ensure that they and their

 3
children can live in safe and healthy environments,
free from abuse. Because domestic abusers may use
reproductive abuse as a tactic of exercising coercive
control over their intimate partners, the ability to seek
accurate information about reproductive health is
especially important to survivors of abuse. A woman
who has been traumatized by having her autonomy
undermined, often through violence, and who as a
result has been denied access to reproductive health
services, or forced to become pregnant against her will,
or who is being abused into terminating a pregnancy
she wishes to continue, will be particularly vulnerable
to and harmed by false and manipulative practices
that would be permitted if the FACT Act were
overturned.
INTRODUCTION AND
SUMMARY OF ARGUMENT
A growing number of “Crisis Pregnancy Centers”
(“CPCs”) use deceptive tactics to draw in women and
dispense medically inaccurate and incomplete
information that jeopardizes the health and lives of
many women, especially low-income and other at-risk
women. In this brief, Amici marshal abundant facts
revealing this epidemic of deceptive and plainly false
information.
In 1927, Justice Brandeis instructed the State of
California how to confront fraudsters and peddlers of
deception: “If there be time to expose through
discussion the falsehood and fallacies, to avert the evil
by the processes of education, the remedy to be applied
is more speech, not enforced silence.” Whitney v.
California, 274 U.S. 357, 377 (1927) (Brandeis, J.,
concurring). The State of California has heeded this
advice and mandated the posting of nonintrusive,

 4
truthful disclosures to provide women the information
they need to make informed healthcare choices.
Most CPCs lack state-issued licenses to provide
healthcare, but many unlicensed CPCs masquerade as
medical offices. Other CPCs obtain state-issued
medical licenses, but offer incomplete information and
almost no medical care.
Both licensed and unlicensed CPCs commonly
employ deceptive tactics to lure women into their
facilities and peddle medical misinformation to those
they ensnare. References to CPCs in this brief include
both licensed and unlicensed entities unless otherwise
specified.
One study revealed that 79 percent of the CPC
advertisements appearing on Google indicated that
the CPCs provided abortions and other medical care,
when in fact, these “clinics” do not offer such services
and their mission is merely to admonish women not to
have abortions.
See Hayley Tsukayama, Google
removes “deceptive” pregnancy center ads, Wash. Post
(April 28, 2014), https://www.washingtonpost.com/news/
the-switch/wp/2014/04/28/naral-successfully-lobbiesgoogle-to-take-down-deceptive-pregnancy-center-ads/?
utm_term=.16d848a566c1.
Other studies reveal that CPCs routinely misstate
medical facts. E.g., Minority Staff of H. Comm. on
Gov’t Reform, 109th Cong., False and Misleading
Health Information Provided by Federally Funded
Pregnancy Resource Centers 7 (July 2006) (“Waxman
Report”) (finding that 87 percent of clinics surveyed
“provided false or misleading information” ). For
example, a volunteer investigator who visited 43 CPCs
in California recalled that “[e]very clinic [she visited]
spouted the lie that abortions cause breast cancer.”
Robin Abcarian, Going undercover at crisis pregnancy

 5
centers, L.A. Times (May 1, 2015), http://www.latimes.
com/local/abcarian/la-me-0501-abcarian-crisis-preg
nancy-20150501-column.html. CPC counselors also
told her, “Condoms have a bunch of little holes you
might not know about.” Id.
While they spread medical misinformation,
unlicensed CPCs deliberately avoid activities that
would bring them within the scope of California’s
regulatory scheme. But these same entities frequently
adopt the appearance of medical offices.
The
Reproductive FACT Act reasonably requires
unlicensed clinics that hold themselves out as
pregnancy or reproductive care providers to disclose
their unlicensed status. Cal. Health & Safety Code
§ 123472(b)(1).
Licensed
CPCs
represent
themselves
as
comprehensive reproductive healthcare providers, but
provide almost no medical services. Several of the
most prominent CPC networks explicitly prohibit their
member clinics from offering any contraceptives, or
even referring women to providers that do. See, e.g.,
Heartbeat Program Policies, Heartbeat International,
https://www.heartbeatservices.org/about-us (last visited
Feb. 25, 2018); Pregnancy Center Standards of
Affiliation, Care Net (January 2013), http://cdn2.hub
spot.net/hub/367552/file-2184386735-pdf/Preg-CenterStandards-of-Affilition-1-13-C.pdf?t=1418138924001.
Petitioner NIFLA suggests that CPCs obtain licenses
not to offer medical care, but to convince women not to
have abortions. See About NIFLA, National Institute
of Family and Life Advocates, https://nifla.org/aboutnifla/ (last visited Feb. 25, 2018) (“using ultrasound in
a pregnancy center for reaching abortion-minded
women” is only reason posited for obtaining medical
license in “Medical” section on “About NIFLA” page);
see also Frequently Asked Questions, Heartbeat

 6
International, https://www.heartbeatservices.org/aboutus/faqs#CN (last visited Feb. 24, 2018) (ability to
perform ultrasound scans is only “medical service[]”
mentioned in section discussing medical licensing).
These licensed CPCs deliberately attract women
seeking unbiased counseling, contraceptives, and
abortions that they do not provide, and they refuse to
offer referrals to providers who do. The FACT Act
appropriately mandates that licensed clinics
specializing in family planning or pregnancy-related
care provide notice to women that they are eligible for
state-funded comprehensive family planning services,
prenatal care, and abortion. Cal. Health & Safety
Code § 123472(a)(1).
Patently false utterances that directly endanger life
are not protected speech. As Justice Holmes famously
put it, “The most stringent protection of free speech
would not protect a man in falsely shouting fire in a
theatre[.]” Schenck v. United States, 249 U.S. 47, 52
(1919). In light of the widespread falsehoods inimical
to women’s lives and health pushed by CPCs,
California’s interest in correcting this deception is not
merely important but compelling. The FACT Act’s
requirements are narrowly tailored to the women’s
health
issues
they
address,
imposing
no
unconstitutional burden on CPCs’ First Amendment
rights.

 7
ARGUMENT
I.

CRISIS PREGNANCY CENTERS USE
DECEPTIVE TACTICS TO LURE IN
WOMEN, GIVE THEM MEDICALLY
INACCURATE INFORMATION, AND
UNDERMINE THEIR ACCESS TO
REPRODUCTIVE HEALTHCARE

Licensed and unlicensed CPCs commonly employ
deceptive tactics to draw women into their facilities.
As the Ninth Circuit observed, “[f]alse and misleading
advertising by clinics that do not provide abortions,
emergency contraception, or referrals to providers of
such services has become a problem of national
importance.” First Resort, Inc. v. Herrera, 860 F.3d
1263, 1268 (9th Cir. 2017).
Inside their doors, CPCs “distribute misleading,
medically inaccurate, and false information regarding
abortion risks, sexually transmitted infections, and
contraceptive effectiveness[.]” Regulating Disclosure
of Services and Sponsorship of Crisis Pregnancy
Centers, Policy Number 20113, American Public
Health Association (Nov. 1, 2011), https://www.apha.
org/policies-and-advocacy/public-health-policy-state
ments/policy-database/2014/07/22/08/33/regulatingdisclosure-of-services-and-sponsorship-of-crisis-preg
nancy-centers. They “frequently target women who
are young, members of minority groups, or financially
disadvantaged, and multiple investigations have
found that CPCs often engage in techniques that are
coercive, threatening, misleading, and aggressive
toward these vulnerable groups[.]” Id.
The more-than 200 licensed and unlicensed CPCs
operating in California generally adopt the form of
“local non-profit organizations.” S. Comm. on Health,

 8
Reproductive FACT Act 4, Cal. S. Reg. Sess. 2015-2016
(May 4, 2015).
But they typically “receiv[e]
substantial funding and resources from at least one
large pro-life umbrella organization[] such as[] Care
Net, [Heartbeat International], and the National
Institute of Family and Life Advocates.” Id. (citing
Casey Watters et al., Pregnancy Resource Centers:
Ensuring Access and Accuracy of Information, Public
Law Research Institute, U.C. Hastings College of Law
(April 1, 2011) (citations reviewed and updated June
1, 2015)).
A. CPCs Commonly Use Deception to Get
Women in the Door
“Crisis Pregnancy Centers[‘] … primary purpose is
to prevent women who are experiencing unintended
pregnancy from seeking abortions by purporting to
counsel women on their pregnancy options.”
Regulating Disclosure of Services and Sponsorship of
Crisis Pregnancy Centers, American Public Health
Association, supra; see also Pet’rs’ Br. at 17. They
and their operators have the right to advocate
against birth control or abortions. But most CPCs
hide their true intentions and instead adopt
strategies to attract women who seek the very care
CPCs do not provide: unbiased counseling,
emergency contraceptives, and abortions. Many
would never provide any contraceptives. They step
well past the bounds of protected advocacy into
deception that endangers women.
One tactic with deep roots is the adoption of
“misleading names, such as ‘Pregnancy Options Clinic’
or ‘Women’s Resource Center,’ which are similar to
those used by comprehensive women’s health clinics
and imply that they discuss a full range of options.”
Unmasking Fake Clinics: The Truth About Crisis

 9
Pregnancy Centers in California 6, NARAL Pro-Choice
California Foundation (2010) (“California CPC
Investigation”), available at: https://www.sfcityattorney.
org/wp-content/uploads/2015/08/Unmasking-FakeClinics-The-Truth-About-Crisis-Pregnancy-Centers-inCalifornia-.pdf.
In an early iteration of this tactic in the 1980s, an
anti-abortion clinic, which provided no healthcare,
operated in North Dakota under the name Women’s
Help Clinic, in order to draw women seeking
healthcare away from a real medical clinic called
Women’s Health Organization, which offered
comprehensive reproductive care, including abortions.
Fargo Women’s Health Org., Inc. v. Larson, 381
N.W.2d 176, 177-78 (N.D. 1986). Because Women’s
Help Clinic (the sham clinic) “mis[led] persons into
believing that abortions [we]re conducted at the clinic
with the intent of deceptively luring those persons to
the clinic to unwittingly receive anti-abortion
propaganda[,]” the North Dakota Supreme Court
upheld a preliminary injunction prohibiting Women’s
Help Clinic from continuing to operate under that
name or otherwise “falsely lull[ing] people that come
to them for counseling into thinking that they are, in
fact, the Women’s Health Organization or the Fargo
Women’s Health Organization, Inc.” Id.
Present day CPCs have merged the tactic of
deliberately adopting names similar to those of
comprehensive family planning clinics with the
additional strategy of locating themselves next to
existing healthcare clinics to confuse women looking
for care. Crisis Pregnancy Centers Lie: The Insidious
Threat to Reproductive Freedom 5, NARAL Pro-Choice
America (2015) (“NARAL National CPC Report”),
https://www.prochoiceamerica.org/wp-content/uploads/
2017/04/cpc-report-2015.pdf. One CPC in Worcester,

 10
Massachusetts went so far as to set up an office on the
same floor of a building that housed a Planned
Parenthood clinic and operated under the name
“Problem Pregnancy” in order to use the same
acronym: “PP.” Id. When Planned Parenthood moved
to a new location, Problem Pregnancy moved as well—
directly across the street. Id.
Anti-abortion clinics similarly have long used the
placement and language of advertisements to mislead
women seeking abortions and other medical care.
“Warna Lewis, pregnant and desiring an abortion,
looked in the Yellow Pages directory under ‘Abortion
Information and Services’ and found an advertisement
for the ‘AAA Pregnancy Problem Center’ in St. Louis,
Missouri.” Lewis v. Pearson Found., Inc., 908 F.2d
318, 318 (8th Cir.), on reh’g, 917 F.2d 1077 (8th Cir.
1990). When Ms. Lewis called and said she wanted an
abortion, “a staff member at the Center stated that
they would ‘help her all they could,’ and invited Lewis
to come in to take a free pregnancy test.” Id. at 319.
Upon arrival, however, Ms. Lewis received no medical
care and was instead ushered to a small room and
subjected to a slide show of “dismembered fetuses and
abortions being performed by means of crudeappearing
instruments”
interspersed
with
“intermittent family scenes.” Id.; see also California
CPC Investigation at 7, supra.
CPCs now have brought their misinformation into
the digital age. Petitioner Pregnancy Care Clinic,
located in El Cajon, California, is a good example. It
maintains a website deceptively named “www.unplanned
parenthood.org,” adding only the “un” to what has long
been Planned Parenthood’s website “www.planned
parenthood.org.”
See Pregnancy Care Clinic,
www.unplannedparenthood.org (last visited Feb. 25,
2018). Petitioner’s web site proclaims, “We are here to

 11
help you,” a header lists the word “abortion” between
“symptoms” and “services,” and visitors are
encouraged to “make an appointment.”
Id.
Unplannedparenthood.org gives every impression that
it will help women obtain abortion or other
reproductive or pregnancy care, but as Petitioner
admits in its brief, in fact it offers only those services
that “advance its pro-life mission.” Pet’rs’ Br. at 6.
Thus, when women show up for their “appointments,”
Petitioner will provide, not pregnancy-related
healthcare, but anti-choice “Abortion Education” and
“Post-Abortion Healing Bible Study.” See Services,
Pregnancy Care Clinic, http://www.supportpcc.com/
services/ (last visited Feb. 25, 2018); see also California
CPC Investigation at 3, supra (describing one young
woman’s experience with such a clinic’s deception).
CPCs have employed sophisticated strategies to
make their own websites appear when computer users
google words like “abortion clinic,” “morning-after
pill,” and “women’s health clinics.” NARAL National
CPC Report at 4, supra. According to one study, “79
percent of the [CPCs] that advertised on Google
indicated that they provided medical services such as
abortions, when, in fact, they are focused on
counseling services and on providing information
about alternatives to abortion.” Tsukayama, Google
removes “deceptive” pregnancy center ads, supra.
Care Net and Heartbeat International, two of the
major CPC umbrella organizations, spend in excess of
“$18,000 per month on pay-per-click advertising
campaigns that target women searching for abortion
providers and bring them to their websites and call
center, Option Line.” California CPC Investigation at
7, supra. Option Line will then refer women to the
nearest CPC, which of course, will not offer abortion
care, emergency contraception, or many other

 12
healthcare services the referred patients were seeking.
See Id.; Pet’rs’ Br. at 33. In fact, women looking for
contraception of any kind who book appointments
through Option Line cannot possibly get the care they
seek from the clinics Option Line refers them to,
because Care Net and Heartbeat International, Option
Line’s sponsors, prohibit affiliated clinics from offering
birth control altogether. See Pregnancy Center
Standards of Affiliation, Care Net (January 2013),
available at: http://cdn2.hubspot.net/hub/367552/file2184386735-pdf/Preg-Center-Standards-of-Affilition1-13-C.pdf?t=1418138924001; Heartbeat Program
Policies, Heartbeat International, https://www.heart
beatservices.org/about-us (last visited Feb. 25, 2018).
Heartbeat International includes among its policies a
commitment not to “promote birth control (devices or
medications) for family planning, population control,
or health issues, including disease prevention.”
Id. (emphasis added).
Some anti-abortion organizations that had been
upfront about their ideological mission have now
adopted deceptive tactics.
In 2005, Westside
Pregnancy Clinic “had a website
prominently
featuring a photo of a woman’s bare stomach and a
dialogue box coming out of it saying, ‘Don’t forget
about me[,]’” a nod at least to the entity’s anti-abortion
stance. NARAL National CPC Report at 15, supra. As
of 2015, that same clinic’s website falsely claimed to
provide “‘unbiased, confidential and free medical,
educational and support services’ for women facing an
unplanned pregnancy.” Id.
A San Francisco-based CPC previously known as
“First Resort” changed its name to “Third Box” after
losing high profile litigation it brought against the City
and County of San Francisco. See Katie J.M. Baker,
New National Women’s Clinic “Third Box” Has Anti-

 13
Abortion Past, BuzzFeed News (October 8, 2014),
https://www.buzzfeed.com/katiejmbaker/new-nationalwomens-clinic-third-box-has-anti-abortion-past?utm_
term=.lfGbd29Z6#.twBnE0klg; see also First Resort,
860 F.3d at 1268. Third Box now boldly claims “to offer
the woman struggling with her choice the time, space
and support to find her own voice.” Amanda Marcotte,
New Anti-Choice Tactic: Pretend to Be Pro-Choice,
Slate (Oct. 9, 2014, 12:52 PM), http://www.slate.com/
blogs/xx_factor/2014/10/09/third_box_anti_abortion_
clinic_rebrands_itself_as_a_pro_choice_counseling.html.
Its CEO, Shari Plunkett, however, believes “every
woman’s heart is telling her to carry to term, because
God has placed truth in her heart, and the truth is that
abortion is never the right answer.” Id. (emphasis
added).
When healthcare provider and insurer Kaiser
learned then-First Resort’s goal was not patient care
but to make “the San Francisco Bay Area into an
abortion-free community,” it stopped making referrals
to First Resort’s clinics. Kaiser Permanente: Refers
Pregnant Patients to Anti-Abortion Counseling Clinic,
California Healthline (Jan. 15, 1999), https://california
healthline.org/morning-breakout/kaiser-permanenterefers-pregnant-patients-to-antiabortion-counselingclinic/.
Taking notice of the growth of deceptive advertising
by CPCs, Google and Yahoo have taken steps to
remove some of their ads. NARAL National CPC
Report at 5, supra; Tsukayama, Google removes
“deceptive” pregnancy center ads, supra. Because
Google policy requires that advertisements be
truthful, accurate, and factually supportable, it
decided to remove certain deceptive ads after a
reproductive-rights advocacy organization presented
it with evidence of wide-spread deception. Id. Yahoo

 14
soon after followed suit. Julian Hattem, NARAL adds
Yahoo success after Google, The Hill (May 9, 2014),
http://thehill.com/policy/technology/205701-after-pres
sure-yahoo-drops-crisis-pregnancy-center-ads. Even
after certain deceptive advertisements were identified
and removed, new misleading advertisements
surfaced. Nicole Georges et al., Yahoo and Google are
Still Running Deceptive Anti-Abortion Ads, Vice News
(May 9, 2014 12:20 PM), https://news.vice.com/article/
yahoo-and-google-are-still-running-deceptive-antiabortion-ads.
B. CPCs Spread Medical Misinformation,
Delay Efforts to Find Appropriate Care,
and Endanger Women Sometimes
Through Incompetence
Investigators who reviewed a sample of 16% of CPCs
in California found that only one-fifth disclosed their
anti-abortion position in their advertising materials.
California CPC Investigation at 8, supra. And yet,
69% of them falsely advertised their counseling
services as “unbiased.” Id. They trade instead in
misinformation, fear mongering and bullying that is
dangerous to women’s health and lives. For example,
Take Lilly, a woman in her 30s with four
children, a happy marriage, and a satisfying
career. In the current economic situation, she
feels bringing another child into the world
would be too financially challenging. Telling
the CPC counselor this had no effect on the
counseling Lilly received; the counselor did
not respond to her questions or demonstrate
compassion for her situation. Abortion was
not discussed until Lilly mentioned it. The
CPC counselor told her stories about women
who died after having chosen to terminate a

 15
pregnancy, and told her she would regret it
for the rest of her life.
California CPC Investigation at 12, supra; see also
Tara Culp-Ressler, “Crisis Pregnancy Center” Tells
Woman Her IUD Was A Baby, ThinkProgress, (March
13, 2015, 1:49 PM), https://thinkprogress.org/crisispregnancy-center-tells-woman-her-iud-was-a-baby46b1b5eb8237/.
Once women walk through their doors and endure
their “unbiased counseling,” CPCs continue their
deception by touting inaccurate information and
inhibiting access to medically appropriate treatment
options. Investigators who visited fourteen CPCs in
four California counties found that most clinics
provided information that is simply not true:
•
•
•
•
•

40 percent of these CPCs “advised that
hormonal birth control increases the risk of
infertility and breast cancer;”
60 percent “advised that condoms are
ineffective in reducing pregnancy and the
transmission of certain STDs;”
70 percent “advised that abortion increases
the risk of breast cancer;”
85 percent “advised that abortion increases
the risk of infertility” and;
85 percent “advised that abortion leads to
mental health problems.”

California CPC Investigation at 2, supra.
Each of these claims has been soundly refuted by the
scientific community. See id.; see also Pam Belluck,
Pregnancy Centers Gain Influence in Anti-Abortion
Arena, N.Y. Times (Jan. 4, 2013), http://www.nytimes.
com/2013/01/05/health/pregnancy-centers-gain-influencein-anti-abortion-fight.html?_r=0&pagewanted=all;

 16
Susan A. Cohen, Abortion and Mental Health: Myths and
Realities, Guttmacher Policy Review, Vol. 9, Issue 3 (Aug.
1, 2006), https://www.guttmacher.org/gpr/2006/08/abortionand-mental-health-myths-and-realities#boxref1.
High rates of misinformation among CPCs are
common. See Waxman Report at 7, supra (finding that
87 percent of clinics surveyed “provided false or
misleading information” and that “three major areas
of misinformation involved (1) the purported
relationship between abortion and breast cancer; (2)
the purported relationship between abortion and
infertility; and (3) the purported relationship between
abortion and mental illness”); see also Belluck,
Pregnancy Centers Gain Influence in Anti-Abortion
Arena, supra; Abcarian, Going undercover at crisis
pregnancy centers, supra. “[W]hile ‘[t]his tactic may be
effective in frightening pregnant teenagers and
women and discouraging abortion [,]’ it ‘denies [them]
vital health information, prevents them from making
an informed decision, and is not an accepted public
health practice.’” First Resort, 860 F.3d at 1268
(quoting Waxman Report at 14).
One California woman described a shockingly
misleading video provided by a CPC:
[A] staff person gave me a video to watch at
home. The video featured interviews with
women who regretted their decision to choose
abortion. Many of these women were being
interviewed from prison. They graphically
described their procedures …. Some of the
women talked about how their abortions had
made them infertile, or that they now had
breast cancer or cervical cancer because of
their abortions. But what they focused on the
most were emotional side effects. They said

 17
you will regret the abortion for the rest of your
life. One of the women described her suicide
attempt. Many of the women claimed that
their abortions caused them to become
alcoholics, drugs addicts, and even criminals.
One woman said, “Having had that abortion
turned me into a crack head whore and no one
told me this would happen.” I had been told
that the video would describe my options.
Really it just told me to not have an abortion.
California CPC Investigation at 8, supra.
A brochure titled “Abortion: Some Medical Facts”
distributed by one CPC claimed that while “no doubt
an unwanted pregnancy can cause intense stress and
hardship in a variety of ways … the medical
information is clear—the physical and psychological
consequences of abortion can be far worse. Nine short
months of pregnancy is a relatively small cost to pay
in light of a lifetime of potential physical and mental
health problems.” Id. at 8 & n.54. The brochure then
characterizes as “medical evidence” its assertions that
“abortion causes breast cancer, infertility, and mental
illness.” Id.
Other California women have described similar
misinformation provided directly by “counselors” at
CPCs. One woman visited a CPC and recalled the
following:
The counselor told me that if I have an
abortion the pregnancy hormones will stay in
my body, especially my breasts …. These
leftover hormones can disrupt the normal
functions and cause cancer. And since the
hormones are all over the body, the whole
body can be affected.

 18
Id. at 10. A “counselor” told another women that
“condoms are like a bag of balloons. You know when
you get a bag of balloons and they have a lot of holes
in them? Well, condoms are like that, but you can’t see
the holes.” Id.
Anti-abortion “counselors” made the same claims to
an investigator, who visited forty-three CPCs in
California. Abcarian, Going undercover at crisis
pregnancy centers, supra. “Every clinic [she visited]
spouted the lie that abortions cause breast cancer.” Id.
“Condoms,” counselors told her, “have a bunch of little
holes you might not know about.” Id. According to
these CPCs, birth control pills should never be used
because they, “ cause headaches and ‘put hormones in
your body you don’t need.’” Id.
A woman, who visited “dozens” of CPCs, reported
that this type of medical misinformation about
pregnancy, abortion, and birth control was the rule,
not the exception: “It’s like everyone was trained by
one person. I heard the same thing over and over
again[.]” Culp-Ressler, “Crisis Pregnancy Center”
Tells Woman Her IUD Was A Baby, supra. “[S]he
always heard the same information about how
abortion is supposedly linked to breast cancer,
depression, and infertility. One employee told her that
ending the pregnancy might puncture her uterus and
close her Fallopian tubes, preventing her from having
any more children in the future.” Id.
Some CPCs also use unconscionable delay tactics to
make it unlikely or impossible for women to obtain the
care they seek. CPCs sometimes “attempt to lull
women into believing they have as much time as they
want to make a decision. CPC workers tell women
that they don’t need to make a decision because their
pregnancy may terminate naturally … [because] the

 19
likelihood of a miscarriage is 30-50 percent.” Jenny
Kutner, Crisis pregnancy center tells woman her IUD
is “your baby,” plus countless other lies, Salon (March
18, 2015), https://www.salon.com/2015/03/18/crisis_
pregnancy_center_tells_woman_her_iud_is_your_baby_
plus_countless_other_lies/. According to the American
College of Obstetricians and Gynecologists, the
miscarriage rate is less than half that high—just 15
percent. Id.
“One CPC volunteer in Maryland told an
investigator posing as a pregnant woman, ‘Don’t panic.
Abortion is legal through all nine months of
pregnancy, so you have plenty of time to make a
decision.’” NARAL National CPC Report at 14. A New
York clinic made the same claim to another
investigator. Id.
Therese McCluskey, the perinatal services
coordinator for the Alameda County Public Health
Department, informed the California Legislature that
women who transfer from anti-abortion clinics to the
clinics she oversees are typically too far along in their
pregnancy to obtain an abortion. Molly Redden, One
State Finally Cracked Down on Deceptive AntiAbortion Pregnancy Centers, Mother Jones (Oct. 12,
2015), https://www.motherjones.com/politics/2015/10/
state-just-became-first-crack-down-deceptive-antiabortion-pregnancy-centers/.
A number of CPCs deliver misinformation due to
incompetence. Poorly trained, or entirely untrained,
staff have mistaken multiple women’s intrauterine
contraceptive devices (commonly known as “IUDs”) for
fetuses.
Abcarian, Going undercover at crisis
pregnancy centers, supra (“After inserting the wand,
the sonogram technician mistook [Dania] Flores’ IUD
for a fetus, and informed her it did not have a

 20
heartbeat.”); Culp-Ressler, “Crisis Pregnancy Center”
Tells Woman Her IUD Was A Baby, supra (“Cristina
asked for an ultrasound at several centers; at two of
them, the staff incorrectly identified her IUD as her
‘baby.’”); Jenny Kutner, Crisis pregnancy center tells
woman her IUD is “your baby,” plus countless other
lies, supra.
II. CPCs’ DECEPTIVE TACTICS AND
MISINFORMATION HARM WOMEN,
ESPECIALLY LOW-INCOME AND OTHER
VULNERABLE WOMEN, JEOPARDIZING
THEIR LIVES AND HEALTH AND AT
GREAT COST TO THE PUBLIC
Aside from the injury of being deceived, lectured,
bullied and shamed, CPCs’ tactics harm women in
numerous ways that directly risk their lives and
health. These harms tend to fall most heavily on
women in vulnerable circumstances. As the California
Legislature found, delay alone causes harm to women
seeking reproductive healthcare. See 2015 Cal. Legis.
Serv. Ch. 700 (A.B. 775) § 1(c). Indeed, “[w]hen 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, and may also lose the option to choose a
particular procedure, or to terminate a pregnancy at
all.” First Resort, 860 F.3d at 1269. Delays in
accessing care can push women into later, more
complex procedures with their increased chance of
complications. See Waiting Periods for Abortion,
Guttmacher Institute (January 2018), https://www.gutt
macher.org/evidence-you-can-use/waiting-periodsabortion. In some cases, termination may no longer
be an option. See First Resort, 860 F.3d at 1269.

 21
When
CPCs
impede
women’s
access
to
contraceptives and shame women who ask about them,
they harm those women by increasing their risk of
future unintended pregnancy. The data show that
access to contraception is the best prophylactic against
unintended pregnancy.
See State Facts About
Unintended Pregnancy: California, Guttmacher
Institute (2017), https://www.guttmacher.org/sites/
default/files/factsheet/up-ca.pdf. This is particularly
true for low-income women, who experience the
greatest barriers to contraceptive care and,
consequently, have the highest rates of unintended
pregnancies. State Facts on Publicly Funded Family
Planning Services: California, Guttmacher Institute
(September 2017), https://www.guttmacher.org/factsheet/state-facts-publicly-funded-family-planningservices-california#1.
In order to reduce these barriers, federal and state
governments, including California, and other
organizations have invested in making family
planning services more widely available. State Facts
About Unintended Pregnancy: California, Guttmacher
Institute, supra. Indeed, Eighty-seven percent of
Planned Parenthood patients in California are at or
below 200% of the federal poverty line and 71% are
members of ethnic or racial minorities. See California
Planned Parenthood Education Fund, Inc. Fact Sheet,
Planned Parenthood Affiliates of California (2015),
available at: http://www.ppactionca.org/voter-resources/
fact-sheets.html.
Due in part to these efforts, two-thirds of women at
risk of unintended pregnancy use contraceptives
consistently.
State Facts About Unintended
Pregnancy: California, Guttmacher Institute, supra.
Despite CPCs’ claims to the contrary, those
contraceptives work: Women consistently using

 22
contraceptives “account for only 5% of all unintended
pregnancies, while the remaining 95% of unintended
pregnancies are attributable to the one-third of women
who do not use contraceptives or who use them
inconsistently.” Id.
Because the CPCs frequently attract “clients by
advertising free services, such as pregnancy tests,
ultrasounds, and prenatal classes[,]” women most in
need of free medical care are drawn in, and low-income
women bear the brunt of CPCs’ deception. California
CPC Investigation at 6, supra. Yet these women often
have the most to gain from the services provided by
true healthcare clinics.
In 2011, the rate of
unintended pregnancy among women with incomes
below the federal poverty level was “more than five
times the rate among women with incomes of at least
200% of the federal poverty level[.]” Unintended
Pregnancy In the United States, Guttmacher Institute
(September 2016), https://www.guttmacher.org/sites/
default/files/factsheet/fb-unintended-pregnancy-us_0.
pdf. The difference in the unplanned birth rate was
even higher. Poor women are seven times more likely
to have an unplanned birth than women above 200%
of the federal poverty line. Id.
The consequences of unintended pregnancy, not only
for the woman and her child, but for the polity, are huge.
“[A]n extensive body of research links births resulting
from unintended or closely spaced pregnancies to
adverse maternal and child health outcomes and
myriad social and economic challenges.” S. Comm. on
Health, Reproductive FACT Act at 4, supra. Women
have diminished opportunities for education,
employment and career advancement. See Analysis of
California Senate Bill (SB) 999 Contraceptives:
Annual Supply 46, Cal. Health Benefits Review
Program (March 28, 2016), http://analyses.chbrp.com/

 23
document/view.php?id=1207.
Maternal and child
health and mortality suffer. Id. at i.
State funded programs intended to increase access
to family planning services have been successful: “In
2014, 7.8 million women received publicly funded
family planning services; these services helped women
avoid 2 million unintended pregnancies, which would
likely have resulted in 914,000 unplanned births.”
State Facts About Unintended Pregnancy: California,
Guttmacher Institute, supra. But CPCs’ deceptive
tactics undermine the options the State makes
available to women.
“In California, low-income women can receive
immediate access to free or low-cost comprehensive
family planning services and pregnancy-related care
through the Medi-Cal and the Family PACT
programs.” 2015 Cal. Legis. Serv. Ch. 700 (A.B. 775) §
1(c). When CPCs’ deception draws low-income women
seeking contraceptives or abortion into clinics that do
not offer those services, many of these women lack the
resources to take additional time off of work or school
or to arrange for childcare to make a second trip to a
true healthcare clinic. If they are ensnared by CPCs,
many of these women may never gain access to the
options available to them.
The cost of showing up at the wrong clinic can be
greater for women living in rural areas. The rural
counties in California are much poorer and have
higher rates of unintended pregnancies, including teen
pregnancies. See Laura Santhanam, Why is the teen
birth rate so much higher in rural areas?, PBS (Nov 16,
2016 10:28 AM), https://www.pbs.org/newshour/health/
teen-birth-rate-higher-rural-areas; The California
Healthcare Landscape, The Henry J. Kaiser Family
Foundation (Aug. 26, 2015), https://www.kff.org/health-

 24
reform/fact-sheet/the-california-health-care-landscape/;
Committee on Health Care for Underserved Women,
Opinion Number 586, Health Disparities in Rural
Women, American College of Obstetricians and
Gynecologists (February 2014), https://www.acog.org/
Clinical-Guidance-and-Publications/Committee-Opinions/
Committee-on-Health-Care-for-Underserved-Women/
Health-Disparities-in-Rural-Women. They also face
much greater provider shortages. Id. In California,
the majority of CPCs are located in rural areas, and
93% of counties have at least one such clinic.
California CPC Investigation at 6, supra. By contrast,
only 59% of California counties host an abortion
provider. Id. Women in rural counties looking for
abortion care who go to the nearest “clinic” are more
likely to find themselves at a CPC than a true
healthcare clinic. “[R]ural Americans spend a higher
percentage of their income on transportation,” and
“rural counties [in the United States] have a higher
rate of car-lessness than urban counties.” Lisa Pruitt,
Toward a Feminist Theory of the Rural, 2007 UTAH L.
REV. 421, 433-34 (2007). Following a trip to a CPC,
driving to an actual medical clinic may be out of reach
for many rural women.
Women
in
abusive
relationships
face
disproportionate harm from CPCs’ practices. “A
pregnant woman in an abusive relationship is less
likely to want or to have planned her pregnancy.”
Australian Institute for Judicial Administration,
Sexual and reproductive abuse, National Domestic and
Family Violence Bench Book § 3.1.2 (May 2017),
http://dfvbenchbook.aija.org.au/understanding-domesticand-family-violence/sexual-and-reproductive-abuse/.
This is in part because abusive partners may refuse to
use, or even may tamper with, contraceptives to exert
control. See, e.g., Rachel Camp, Coercing Pregnancy,

 25
21 Wm. & Mary J. Women & L. 275, 276 (2015). For
example, “Jessica became pregnant less than four
months into dating her boyfriend. As she described it,
‘he refused to give me funds to purchase birth control,
and always refused to use condoms after we became
exclusive.’” Id.
It is all the more important that women in such
situations have convenient access to “discrete methods
of contraception that are less susceptible to tampering,
such as an intrauterine device, subdermal implant, or
contraceptive injection[.]” Kathryn Doyle, Reproductive
Control Can be a Form of Partner Violence, Reuters
(September 4, 2015), https://www.reuters.com/article/ushealth-sexassault-coercion/reproductive-control-can-bea-form-of-partner-violence-idUSKCN0R42CD20150904.
These services, of course, are entirely unavailable
at Petitioners’ clinics and other CPCs. See Our
Services, Fallbrook Pregnancy Resource Center,
http://www.fallbrookprc.com/Our-Services (last visited
Feb. 25, 2018) (listing “Abstinence encouragement” as
sole service offered to reduce likelihood of unplanned
pregnancy); Services, Pregnancy Care Clinic,
http://www.supportpcc.com/services/ (last visited Feb.
25, 2018) (offering only “Natural Family Planning
Information” and “Abstinence Education” as forms of
birth control); About NIFLA, National Institute of
Family and Life Advocates, https://nifla.org/aboutnifla/ (last visited Feb. 25, 2018) (providing
“ultrasound” scans to convince women not to seek
abortions as single example of medical care provided
by NIFLA-affiliated clinics).
Finally, some CPCs endanger women and their
babies through poor care. Sally Greenwald, an OBGYN specialist at the University of California—San
Francisco, testified before the California Legislature
about “taking over the care of a pregnant diabetic

 26
woman from a pro-life center.” Redden, One State
Finally Cracked Down on Deceptive Anti-Abortion
Pregnancy Centers, supra. The previous provider “had
failed to treat the woman’s alarming blood sugar
levels,” resulting in the fetus’s exposure “to lifelong
risks, such as cardiac malformations, brain anomalies,
and spine deformations.” Id. Had the patient been
transferred to Dr. Greenwald’s care sooner, she
testified, “[w]e could have lowered the sugar in her
blood and we could have had better outcomes both for
mom and for baby.” Id.
Therese McCluskey of the Alameda County Public
Health Department testified that when women
transfer from anti-abortion clinics to those run by the
County, they frequently come “without prenatal
records, lab reports, or the pregnancy verification form
that entitles them to pregnancy-related health care.”
Id.
III. BOTH UNLICENSED AND LICENSED CPCs
ENGAGE IN REGULATORY EVASION
THAT THE REPRODUCTIVE FACT ACT
APPROPRIATELY REMEDIES WITHOUT
UNDUE RESTRICTION ON THE CPCs
To facilitate their campaign of deceptive
advertising, biased “counseling,” and medical
misinformation, CPCs deliberately evade some of
California’s healthcare regulations. This is most
obvious in the case of unlicensed CPCs, which operate
entirely outside of the State’s healthcare quality
regime. See Cal. Health & Safety Code § 1200.
Licensed CPCs also have taken advantage of
regulatory loop-holes in order to give the impression
that they offer comprehensive care but then refuse to

 27
refer patients to other providers when they seek care
the CPCs do not offer.
A. Unlicensed CPCs Deliberately Evade
California’s Healthcare Licensing
Regime
California law exempts from ordinary licensing
requirements entities “that solely provide advice,
counseling, information, or referrals on the
maintenance of health or on the means and measures
to prevent or avoid sickness, disease, or injury[.]” Cal.
Health & Safety Code § 1200. The majority of CPCs in
California thus operate without a license.
See
California CPC Investigation at 5, supra.
While “[t]heir staff members often wear white coats
and their waiting rooms look like any other doctor’s
office,” Culp-Ressler, “Crisis Pregnancy Center” Tells
Woman Her IUD Was A Baby, supra, unlicensed CPCs
have “clients read their own pregnancy tests,”
California CPC Investigation at 5. By providing only
“counseling,” unlicensed CPCs avoid extensive clinical
quality and patient protection regulations.
Yet unlicensed CPCs go to great lengths to appear
to be medical clinics without subjecting themselves to
state regulation. In one particularly telling example,
two investigators from NARAL Pro-Choice
California Foundation were alarmed when a
San Jose [CPC] counselor insisted that the
potentially pregnant patient self-administer
her urine test. Holding a Dixie cup of her own
urine, [the] investigator was led to the back of
the CPC where she used a dropper to transfer
her sample to the pregnancy stick while the
CPC counselor watched. Because the test
never leaves the hands of the client, the CPC

 28
has exploited a loophole in which it is free to
operate in an unregulated manner.
Id.
Many CPCs offer free ultrasound examinations as a
way to draw in clients and heighten the appearance of
medical legitimacy. NARAL National CPC Report at
16. Petitioner Fallbrook Pregnancy Resource Center,
for example, advertises on its website free ultrasound
scans that “will tell you if your pregnancy is viable and
how far along you are.” Our Services, Fallbrook
Pregnancy Resource Center, http://www.fallbrookprc.
com/Our-Services (last visited Feb. 25, 2018). “This
information,” it adds, “may determine what options
are available to you.” Id. Yet in its brief, Fallbrook
acknowledges being “an unlicensed center that offers
‘non-medical pregnancy-related information and
services.’” Pet’rs’ Br. at 6. By advertising the service
perhaps most associated with prenatal healthcare and
offering to diagnose whether a pregnancy is viable,
Fallbrook adopts the veneer of something it is not: a
licensed medical facility.
The FACT Act is a more than appropriate response
to these deceptions. An unlicensed clinic like Fallbrook
need only state what is true: “This facility is not
licensed as a medical facility by the State of California
and has no licensed medical provider who provides or
directly supervises the provision of services.” Cal.
Health & Safety Code § 123472(b)(1).
Against the backdrop of systematic deception and
regulatory evasion documented above, it is little
wonder the lower court held that this disclosure
“survives any level of review.” Nat’l Inst. of Family &
Life Advocates v. Harris, 839 F.3d 823, 844 (9th Cir.
2016). “[D]isclosure requirements trench much more

 29
narrowly on an advertiser’s interests … [because]
warnings or disclaimers might be appropriately
required in order to dissipate the possibility of
consumer confusion or deception.” Zauderer v. Office
of Disciplinary Counsel of the Sup. Ct. of Ohio, 471
U.S. 626, 651 (1985) (internal quotation marks and
ellipsis omitted). In the context of healthcare, and in
the face of many CPCs’ deliberate duplicity, the risks
of confusion and deception are at their apex. The
disclosure requirement California mandated is
entirely reasonable.
B. Licensed CPCs Evade Regulations that
Would Require Them to Provide
Referrals for Medically Appropriate
Care
As noted, some CPCs have obtained California
licenses to operate as community, free, or intermittent
clinics. See Cal. Health & Safety Code §§ 1204, 1206;
Assemb. Comm. on Judiciary, Reproductive FACT Act
5, Cal. Assemb. Reg. Sess. 2015-2016 (April 16, 2015).
Like other practices described above, this one has been
pushed by major anti-contraception and anti-abortion
umbrella organizations, including Petitioner NIFLA.
California CPC Investigation at 5, supra.
But as NIFLA’s website makes clear, the purpose of
garnering clinical licenses is not to provide medical
care to women. See Medical Clinic Conversion,
National Institute of Family and Life Advocates,
https://nifla.org/medical-clinic-conversion/ (last visited
Feb. 25, 2018). Instead, it is to obtain ultrasound
practice rights in order to convince women not to have
abortions. Id. (“Established pro-life medical clinics
report than more than 80 percent of abortion-minded
mothers choose life after they see their unborn baby
via ultrasound. … Our goal is to have more pro-life

 30
medical clinics in operation using the invaluable tool
of ultrasound[.]”); see also A Comprehensive Medical
Conversion Program, National Institute of Family and
Life Advocates, https://nifla.org/life-choice-project-tlc/
(last visited Feb. 25, 2018) (“Because ultrasound is
such an invaluable tool in revealing the personhood of
unborn children, pro-life pregnancy centers across the
nation are seeking to transition to medical clinic status
so they may provide this critical resource to vulnerable
women.”).
CPC network Care Net noted the reason its affiliates
perform ultrasound scans in a press release titled
“Ultrasound May End Abortion,” emphasizing its view
that “ultrasounds deter women from getting abortions.”
Care Net (June 5, 2003), https://www.care-net.org/pressrelease-060503.
Subsequent publications have
reemphasized this monothemic approach to
ultrasound scans. E.g., Why Ultrasounds Matter for
Women Planning Abortion, Care Net (Dec. 14, 2014),
https://www.care-net.org/center-insights-blog/why-ultra
sounds-matter-for-women-planning-abortion (discussing
effectiveness of ultrasound scans as abortion
deterrent).
Licensed CPCs must abide by regulations that apply
to community health clinics. See Cal. Health & Safety
Code §§ 1204, 1206. But they avoid many of the rules
tailored to reproductive healthcare clinics by declining
to participate in California’s premiere reproductive
healthcare program, the Family PACT, which
“provide[s] comprehensive family planning services to
low-income women and men.” Cal. Dep’t of Health
Care Svcs., Family PACT Overview (June 2015),
http://www.familypact.org/Providers/provider-resources/
TipSheets/Overview6-15ADA.pdf; see also Cal. Welf. &
Inst. Code § 24005.

 31
Because over 2,000 reproductive healthcare
providers participate in the Family PACT program,
many quality control and patient protection
regulations are made applicable through participation
in the program rather than due to mere possession of a
clinical license. E.g., Cal. Welf. & Inst. Code § 24005(b)
& (c) (requiring that participating clinics demonstrate
their “licensed medical personnel [have the
appropriate] family planning skills, knowledge, and
competency” and that they provide referrals for “the
full scope of family planning education, counseling,
and medical services specified for the program”).
CPCs claim they decline to participate in the Family
PACT program because participation “requires a
center to provide abortifacients and birth control.”
Pet’rs’ Br. at 10. Thus, they argue, involvement in the
program would undermine their “pro-life views.” Id.
Of course they are free to refuse to participate and
thus not share in the state benefits that participation
would bring them. But their reasoning for abstaining
is fatally flawed. Participation in the Family PACT
would not require anti-abortion clinics to provide
medical services to which they object. Family PACT
participants may offer “the full scope of family
planning education, counseling, and medical services
specified for the program, either directly or by
referral ….” Cal. Welf. & Inst. Code § 24005(c)
(emphasis added).

 32
C. The Reproductive FACT Act’s Notice
Requirement Appropriately Applies to
Licensed CPCs and Exempts Licensed
Clinics which Provide All Services
Listed on the FACT Act’s Notice
1. The Reproductive FACT Act Provides
Women a Minimally Intrusive Escape
Hatch from the Trap Set by Licensed
CPCs
California’s Reproductive FACT Act requires certain
clinics “whose primary purpose is providing family
planning or pregnancy-related services” to post a
notice allowing women to obtain appropriate care if
they find themselves in clinics that will not meet their
needs. Cal. Health & Safety Code §§ 123471(a),
123472(a). Anti-abortion and anti-birth control clinics
need only provide a short, truthful message:
California has public programs that provide
immediate free or low-cost access to
comprehensive family planning services
(including all FDA-approved methods of
contraception), prenatal care, and abortion
for eligible women. To determine whether you
qualify, contact the county social services
office at [insert the telephone number].
Cal. Health & Safety Code § 123472(a). In fact, these
clinics have several options for distributing this notice
in the least intrusive manner: by posting a 8.5 x 11
inch sign, offering a 14-point type notice to incoming
clients, or providing a digital notice to clients. Id. No
staff member is required even to breathe a pro-choice
word nor forced to introduce women to particular
family planning providers or issue formal medical
referrals. The only function of the notice is to inform

 33
women that they have options beyond the limited set
presented by CPCs.
In the absence of such a notice, many women are
caught in the trap created by deceptive CPCs. A web
search for a licensed clinic specializing in reproductive
healthcare by a woman seeking abortion care is likely
to point her to the nearest licensed CPC. See Section
I.A., supra. The CPC will not provide the care she
seeks. See id. But without disclosing its true
intention, the CPC will invite her to schedule an
appointment with the aim (known only to the clinic) of
dissuading her from having an abortion. Id. When the
patient arrives and discovers the CPC will not provide
the care she needs, she might ask to be referred to a
clinic that will. But despite holding a state-issued
medical license, the CPC will decline to give its patient
medically relevant information about the care she
seeks. Id. Rather than deny anti-abortion clinics
licenses altogether for their refusal to provide women
with medically relevant information or direct patients
to other care providers who can meet their needs, the
State has simply ensured that these clinics inform
patients how to learn about their options.
2. The FACT Act Reasonably Exempts
from the Licensed Clinic Notice
Requirement those Licensed Clinics
which Provide All Services Listed on
the FACT Act’s Notice
Petitioners seize on the FACT Act’s exemption for
licensed clinics that participate in both the Family
PACT and Medi-Cal, see Cal. Health & Safety Code
§ 123471(c)(2), to claim that CPCs have been unfairly
singled out. Pet’rs’ Br. 33-34. There is nothing wrong
with the State’s determination that “a licensed
primary care clinic that is both a Medi-Cal provider

 34
and a Family PACT provider [already] offers the full
continuum of health care services” specified in the
disclosure. Assemb. Comm. on Judiciary, Reproductive
FACT Act at 9, supra. It would, thus, be duplicative
for enrolled clinics to post the mandated information
they are already required to provide.
Family PACT participants are required to
determine whether patients are eligible for the
program and inform patients of the service available
to them. Compare Cal. Dep’t of Health Care Svcs.,
Family PACT Program Standards 2 (Jan. 2018),
available at: http://www.familypact.org/Providers/
policies-procedures-and-billing-instructions with Cal.
Health & Safety Code § 123472(a). And Family PACT
providers already must provide much more extensive
disclosures to all patients who enter their facilities.
See Cal. Dep’t of Health Care Svcs., Family PACT
Program Standards at 2 & 12, supra (requiring Family
PACT participants to “provide[] to all clients or post[]
in a prominent place at the site of clinical services” a
statement, which, among other things, advises that
patients have the right to “adequate and objective
education and counseling,” “to participate in selecting
the contraceptive method(s) to be used,” and “to
consent to, or refuse, any contraceptive method, test,
examination or treatment”). It would make little sense
for the Legislature to require the very clinics that
administer the “public programs that provide
immediate free or low-cost access to comprehensive
family planning services …, prenatal care, and
abortion for eligible women” to provide an extra
disclosure stating their existence. See Cal. Health &
Safety Code § 123472(a).

 35
CONCLUSION
This Court should affirm the Ninth Circuit’s
judgment that the FACT Act is a reasonable
regulation of commercial and professional speech,
narrowly crafted to deal with an epidemic of falsehoods
that constitutes an imminent danger to many women’s
lives and health.
Dated: February 27, 2018
Respectfully submitted,
SANFORD JAY ROSEN
Counsel of Record
GAY CROSTHWAIT GRUNFELD
DEVIN W. MAUNEY
ROSEN BIEN GALVAN & GRUNFELD LLP
50 Fremont Street, 19th Floor
San Francisco, California 94105
(415) 433-6830
srosen@rbgg.com
Counsel for Amici Curiae Equal Rights
Advocates, Planned Parenthood
Affiliates of California, California
Women Lawyers, Hadassah, and the
Family Violence Appellate Project