Nifla v. Kamala Harris , 839 F.3d 823 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONAL INSTITUTE OF FAMILY No. 16-55249
AND LIFE ADVOCATES, a Virginia
corporation, DBA NIFLA; D.C. No.
PREGNANCY CARE CENTER, a 3:15-cv-02277-
California corporation, DBA JAH-DHB
Pregnancy Care Clinic; FALLBROOK
PREGNANCY RESOURCE CENTER, a
California corporation, OPINION
Plaintiffs-Appellants,
v.
KAMALA HARRIS, in her official
capacity as Attorney General for the
State of California; THOMAS
MONTGOMERY, in his official
capacity as County Counsel for San
Diego County; MORGAN FOLEY, in
his official capacity as City Attorney
for the City of El Cajon, CA;
EDMUND G. BROWN, JR., in his
official capacity as Governor of the
State of California,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
2 NIFLA V. HARRIS
Argued and Submitted June 14, 2016
San Francisco, California
Filed October 14, 2016
Before: Dorothy W. Nelson, A. Wallace Tashima,
and John B. Owens, Circuit Judges.
Opinion by Judge D.W. Nelson
SUMMARY*
Civil Rights
The panel affirmed the district court’s denial of a motion
for a preliminary injunction sought by three religiously-
affiliated non-profit corporations to prevent the enforcement
of the California Reproductive Freedom, Accountability,
Comprehensive Care, and Transparency Act.
The Act requires that licensed pregnancy-related clinics
disseminate a notice stating the existence of publicly-funded
family-planning services, including contraception and
abortion. The Act also requires that unlicensed clinics
disseminate a notice stating that they are not licensed by the
State of California. Appellants alleged that the Act violates
their fundamental rights, including their First Amendment
guarantees to free speech and the free exercise of religion.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
NIFLA V. HARRIS 3
As a threshold matter, the panel held that appellants’
claims were constitutionally and prudentially ripe.
Addressing the free speech claim, the panel concluded that
the proper level of scrutiny to apply to the Act’s regulation of
licensed clinics was intermediate scrutiny, which the Act
survived. With respect to unlicensed clinics, the panel
concluded that the Act survived any level of scrutiny.
The panel also rejected appellants’ arguments that they
were entitled to a preliminary injunction based on their free
exercise claims. The panel held that the Act is a neutral law
of general applicability, which survived rational basis review.
The panel concluded that appellants were unable to
demonstrate a likelihood of success on the merits of their
First Amendment claims.
4 NIFLA V. HARRIS
COUNSEL
Matthew Bowman (argued) and David A. Cortman, Alliance
Defending Freedom, Washington, D.C.; Dean R. Broyles,
National Center for Law and Policy, Escondido, California;
Kristen K. Waggoner, Kevin H. Theriot, and Elissa M.
Graves, Alliance Defending Freedom, Scottsdale, Arizona;
Anne O’Connor, National Institute of Family and Life
Advocates, Fredericksburg, Virginia; for Plaintiffs-
Appellants.
Jonathan M. Eisenberg (argued), Office of the Attorney
General, Los Angeles, California, for Defendants-Appellees
Kamala Harris and Edmund G. Brown, Jr.
Thomas D. Bunton (argued), Senior Deputy; Thomas E.
Montgomery, County Counsel; Office of County Counsel,
San Diego, California; for Defendant-Appellee Thomas
Montgomery.
Carrie L. Mitchell, McDougal Love Eckis Boehmer & Foley,
La Mesa, California, for Defendant-Appellee Morgan Foley.
Deborah J. Dewart, Swansboro, North Carolina; James L.
Hirsen, Anaheim Hills, California; for Amicus Curiae Justice
and Freedom Fund.
Kristen Law Sagafi and Martin D. Quiñones, Tycko &
Zavareei LLP, Oakland, California, for Amicus Curiae
Physicians for Reproductive Health.
Priscilla Joyce Smith, Brooklyn, New York, for Amicus
Curiae Information Society Project at Yale Law School.
NIFLA V. HARRIS 5
OPINION
D.W. NELSON, Circuit Judge:
The National Institute of Family and Life Advocates, et
al. appeal from the district court’s denial of their motion for
a preliminary injunction to prevent the enforcement of the
California Reproductive Freedom, Accountability,
Comprehensive Care, and Transparency Act (the FACT Act
or the Act). The Act requires that licensed pregnancy-related
clinics disseminate a notice stating the existence of publicly-
funded family-planning services, including contraception and
abortion. The Act also requires that unlicensed clinics
disseminate a notice stating that they are not licensed by the
State of California. Appellants allege that the Act violates
their fundamental rights, including their First Amendment
guarantees to free speech and the free exercise of religion.
We affirm the district court’s denial of Appellants’
motion for a preliminary injunction. For the free speech
claim, we conclude that the proper level of scrutiny to apply
to the Act’s regulation of licensed clinics is intermediate
scrutiny, which it survives. With respect to unlicensed
clinics, we conclude that the Act survives any level of
scrutiny. For the free exercise claim, we conclude that the
Act is a neutral law of general applicability, and that it
survives rational basis review. Appellants, therefore, are
unable to show the “most important” factor under Winter v.
Natural Resources Defense Council, Inc., 555 U.S. 7, 20
(2008): likelihood of success on the merits. Garcia v.
Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (en banc).
6 NIFLA V. HARRIS
BACKGROUND
I. The FACT Act
The FACT Act was created for the stated purpose of
ensuring that “[a]ll California women, regardless of income,
. . . have access to reproductive health services.” Assem. Bill
No. 775 § 1(a). It was enacted after the California
Legislature found that a great number of California women
were unaware of the existence of state-sponsored healthcare
programs. See id. at § 1 (a)–(c). These programs, which
expanded under the Patient Protection and Affordable Care
Act to include millions of California women, provide “low-
income women . . . immediate access to free or low-cost
comprehensive family planning services and pregnancy-
related care.” Id. at § 1(c); see also Assem. Comm. on
Health, Analysis of Assembly Bill No. 775. Specifically, the
Legislature found that:
Millions of California women are in need of
publicly funded family planning services,
contraception services and education, abortion
services, and prenatal care and delivery. In
2012, more than 2.6 million California women
were in need of publicly funded family
planning services. More than 700,000
California women become pregnant every
year and one-half of these pregnancies are
unintended. In 2010, 64.3 percent of
unplanned births in California were publicly
funded. Yet, at the moment they learn that
they are pregnant, thousands of women
remain unaware of the public programs
available to provide them with contraception,
NIFLA V. HARRIS 7
health education and counseling, family
planning, prenatal care, abortion, or delivery.
Id. at § 1(b).
The Legislature also found that the ability of California
women to receive accurate information about their
reproductive rights, and to exercise those rights, is hindered
by the existence of crisis pregnancy centers (CPCs). CPCs
“pose as full-service women’s health clinics, but aim to
discourage and prevent women from seeking abortions” in
order to fulfill their goal of “interfer[ing] with women’s
ability to be fully informed and exercise their reproductive
rights.” Assem. Comm. on Health, Analysis of Assembly
Bill No. 775 at 3. The Legislature found that CPCs, which
include unlicensed and licensed clinics, employ “intentionally
deceptive advertising and counseling practices [that] often
confuse, misinform, and even intimidate women from making
fully-informed, time-sensitive decisions about critical health
care.” Id. There are approximately 200 CPCs in California.
Id.
Because “pregnancy decisions are time sensitive, and care
early in pregnancy is important,” the Legislature found that
the most effective way to ensure that women are able to
receive access to family planning services, and accurate
information about such services, was to require licensed
pregnancy-related clinics unable to enroll patients in state-
sponsored programs to state the existence of these services.
Assem. Bill No. 775 § 1(c)–(d).
Thus, as required under the Act, all licensed covered
facilities must disseminate a notice (the Licensed Notice)
stating, “California has public programs that provide
8 NIFLA V. HARRIS
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)(1). The
Act defines a licensed covered facility as “a facility licensed
under Section 1204 or an intermittent clinic operating under
a primary care clinic pursuant to subdivision (h) of Section
1206, whose primary purpose is providing family planning or
pregnancy-related services,” and that also satisfies two or
more of the following criteria:
(1) The facility offers obstetric ultrasounds,
obstetric sonograms, or prenatal care to
pregnant women. (2) The facility provides, or
offers counseling about, contraception or
contraceptive methods. (3) The facility offers
pregnancy testing or pregnancy diagnosis.
(4) The facility advertises or solicits patrons
with offers to provide prenatal sonography,
pregnancy tests, or pregnancy options
counseling. (5) The facility offers abortion
services. (6) The facility has staff or
volunteers who collect health information
from clients.
Id. § 123471. The Act requires that the Licensed Notice be
disclosed by licensed facilities in one of three possible
manners:
(A) A public notice posted in a conspicuous
place where individuals wait that may be
easily read by those seeking services from the
NIFLA V. HARRIS 9
facility. The notice shall be at least 8.5 inches
by 11 inches and written in no less than 22-
point type. (B) A printed notice distributed to
all clients in no less than 14-point type. (C) A
digital notice distributed to all clients that can
be read at the time of check-in or arrival, in
the same point type as other digital
disclosures.
Id. § 123472(a)(2).
The Act also covers unlicensed facilities. An unlicensed
clinic is “a facility that is not licensed by the State of
California and does not have a licensed medical provider on
staff or under contract who provides or directly supervises the
provision of all of the services, whose primary purpose is
providing pregnancy-related services” and that also satisfies
two of the following criteria:
(1) The facility offers obstetric
ultrasounds, obstetric sonograms, or prenatal
care to pregnant women. (2) The facility
offers pregnancy testing or pregnancy
diagnosis. (3) The facility advertises or
solicits patrons with offers to provide prenatal
sonography, pregnancy tests, or pregnancy
options counseling. (4) The facility has staff
or volunteers who collect health information
from clients.
Id. § 123471(b). Unlicensed clinics must disseminate a
notice (the Unlicensed Notice) stating, “This facility is not
licensed as a medical facility by the State of California and
has no licensed medical provider who provides or directly
10 NIFLA V. HARRIS
supervises the provision of services.” Id. § 123472(b)(1).
The Unlicensed Notice must be “disseminate[d] to clients on
site and in any print and digital advertising materials
including Internet Web sites.” Id. § 123472(b). Information
in advertising material must be “clear and conspicuous,” and
the onsite notice must be “at least 8.5 inches by 11 inches and
written in no less than 48-point type, and . . . posted
conspicuously in the entrance of the facility and at least one
additional area where clients wait to receive services.” Id.
§ 123472(b)(2)–(3).
All violators of the Act “are liable for a civil penalty of
five hundred dollars . . . for a first offense and one thousand
dollars . . . for each subsequent offense.” Id. § 123473(a).
II. Procedural History
Appellants are three religiously-affiliated non-profit
corporations.1 The National Institute of Family and Life
Advocates (NIFLA) is a national organization composed of
numerous pregnancy centers, 111 of which are located in
California. Seventy-three of the centers are licensed by the
State of California, and thirty-eight provide non-medical
services. Pregnancy Care Clinic is a licensed clinic that
provides medical services such as ultrasounds, medical
referrals, and education on family planning. Its staff includes
two doctors of obstetrics and gynecology, one radiologist, one
anesthesiologist, one certified midwife, one nurse
practitioner, ten nurses, and two registered diagnostic medical
1
In addition to this appeal, this panel also heard argument in related
cases A Woman’s Friend Pregnancy Resource Clinic v. Harris, No. 15-
17517, __ F. App’x __ (9th Cir. 2016), and Livingwell Medical Clinic,
Inc. v. Harris, No. 15-17497, __ F. App’x __ (9th Cir. 2016).
NIFLA V. HARRIS 11
sonographers. Fallbrook Pregnancy Center is an unlicensed
clinic. It offers services such as free pregnancy tests that
patients can take themselves, educational programs, and
medical referrals. Fallbrook employs several nurses at its
facility, and also contracts with a licensed medical provider
for referrals for ultrasounds, which are provided in a separate
mobile facility nearby. Prenatal sonographs are also offered
by a contractor in a separate facility nearby.
Appellants are strongly opposed to abortion. None
provide abortions or referrals for abortions. NIFLA’s mission
is to “empower the choice for life,” and Pregnancy Care
Clinic “provides its services to women in unplanned
pregnancies pursuant to its pro-life viewpoint, desiring to
empower the women it serves to choose life for their child,
rather than abortion.” Fallbrook believes “that human life is
a gift of God that should not be destroyed by abortion.”
On October 13, 2015, Appellants brought suit against
California Attorney General Kamala Harris (the AG),
California Governor Edmund G. Brown, Jr., County Counsel
for San Diego County Thomas Montgomery, and City
Attorney of El Cajon Morgan Foley2 in the Southern District
of California. Appellants alleged that the FACT Act violates
their First Amendment free speech and free exercise rights.3
2
The district court’s finding that the City Attorney of El Cajon is not
a proper defendant was harmless error. The Act grants the City Attorney
the power to enforce the Act. See Cal. Health & Safety Code § 123473.
The City Attorney, therefore, is a proper defendant.
3
Appellants’ claims for relief are (1) Violation of the free speech
clause of the First Amendment of the United States Constitution;
(2) Violation of the due process clause of the Fourteenth Amendment of
the United States Constitution (alleged by unlicensed clinics);
12 NIFLA V. HARRIS
Appellants brought a motion for a preliminary injunction to
enjoin enforcement of the Act prior to the full litigation of the
action.
The district court denied Appellants’ motion for a
preliminary injunction. The court found that Appellants were
unable to show a likelihood of success on their free speech
claim. With respect to the Licensed Notice, the court held
that the Act either regulated professional conduct subject to
rational basis review, or professional speech subject to
intermediate scrutiny, and the Act survived both levels of
review. The court also held that the Act did not constitute
viewpoint discrimination. With respect to the Unlicensed
Notice, the court held that it withstood any level of scrutiny.
In addition, Appellants could not show a likelihood of success
on the merits of their free exercise claim because, the court
held, the Act is a neutral law of general applicability which
survived rational basis review. The court then explained that
even though Appellants raised “serious questions going to the
merits,” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127,
1134–35 (9th Cir. 2011), they could not demonstrate that the
other Winter factors weighed in favor of granting a
preliminary injunction.
(3) Violation of the free exercise clause of the First Amendment of the
United States Constitution; (4) Violation of the Coats-Snowe Amendment,
42 U.S.C. § 238N (alleged by licensed clinics); and (5) Violation of the
free speech clause of the California Constitution. Because Appellants
brought their motion for preliminary injunction only under their federal
First Amendment claims, we address only those issues in this opinion.
NIFLA V. HARRIS 13
STANDARD OF REVIEW
We review the grant or denial of a preliminary injunction
for an abuse of discretion. Sw. Voter Registration Educ.
Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en
banc) (per curiam). We review the district court’s
interpretation of underlying law de novo. Id.
ANALYSIS
I. Appellants’ Claims are Justiciable.
As a threshold matter, we must first decide whether
Appellants’ claims are justiciable. The County Counsel of
San Diego argues that this action is not constitutionally ripe,
and even if it were ripe, that we should decline to find
jurisdiction for prudential reasons.
We reject these arguments.
A. Appellants’ Claims are Constitutionally Ripe.
“[T]he Constitution mandates that prior to our exercise of
jurisdiction there exist a constitutional ‘case or controversy,’
that the issues presented are ‘definite and concrete, not
hypothetical or abstract.’” Thomas v. Anchorage Equal
Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 1999) (en
banc) (quoting Ry. Mail Ass’n v. Corsi, 326 U.S 88, 93
(1945)). A plaintiff must face “a realistic danger of
sustaining a direct injury as a result of the statute’s operation
or enforcement,” not an “alleged injury [that] is too
imaginary or speculative to support jurisdiction.” Id.
(internal quotation marks and citation omitted). This Court
has identified three factors to assess in deciding whether a
14 NIFLA V. HARRIS
case is constitutionally ripe: (1) whether plaintiffs have
articulated a concrete plan to violate the statute in question;
(2) whether the prosecuting authorities have communicated
a specific warning or threat to initiate proceedings; and
(3) the history of past prosecution or enforcement of the
challenged statute. Id.
These factors allow for plaintiffs to bring pre-enforcement
challenges to laws that they claim infringe their fundamental
rights. See id. at 1137 n.1. Indeed, we have long recognized
that “[o]ne does not have to await the consummation of
threatened injury to obtain preventive relief . . . .
[p]articularly in the First Amendment-protected speech
context[.]” Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d
1088, 1094 (9th Cir. 2003) (citation omitted); see also
Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393
(1988).
Appellants’ claims are constitutionally ripe. Before the
district court and this Court, Appellants have explicitly stated
that they will not comply with the Act, even if enforced.
Appellants have made this pledge of disobedience although
they are aware that violators of the Act are subject to civil
penalties. Cal. Health & Safety Code § 123473(a). The AG,
moreover, has not stated that she will not enforce the Act.
See Am. Booksellers Ass’n, 484 U.S. at 393 (“The State has
not suggested that the newly enacted law will not be
enforced, and we see no reason to assume otherwise. We
conclude that plaintiffs have alleged an actual and well-
founded fear that the law will be enforced against them.”). A
lack of enforcement history is not a compelling reason to find
NIFLA V. HARRIS 15
Appellants’ claims unripe in this context.4 The Act did not go
into effect until January 1, 2016, approximately one month
before the district court denied the motion for a preliminary
injunction. Appellants, therefore, could not have
demonstrated a significant history of enforcement. See
Wolfon v. Brammer, 616 F.3d 1045, 1060 (9th Cir. 2010)
(affording the factor of past prosecution “little weight” when
the challenged law was new); LSO Ltd. v. Stroh, 205 F.3d
1146, 1155 (9th Cir. 2000) (“[E]nforcement history alone is
not dispositive. Courts have found standing where no one
had ever been prosecuted under the challenged provision.”).
B. Appellants’ Claims are Prudentially Ripe.
Even if a case is constitutionally ripe, we have
discretionary power to decline to exercise jurisdiction.
Thomas, 220 F.3d at 1142. When assessing prudential
ripeness, we consider: (1) the fitness of the issues for judicial
decision and; (2) hardship to the parties if we were to
withhold jurisdiction. Id. at 1141.
4
Moreover, we note that NIFLA filed a 28(j) letter informing the
Court that, on August 16, 2016, Los Angeles City Attorney Michael Feuer
sent an enforcement letter to co-counsel for NIFLA. In the letter, the City
Attorney provided notice that The People of the State of California
planned to make an ex parte application for an order to show cause why
a preliminary injunction should not issue and a temporary restraining order
enjoining the Pregnancy Counseling Center, a member of NIFLA, from
violating the FACT Act. The City indicated it also would file a complaint
containing a single cause of action—violation of California Business &
Professions Code § 17200, et seq.—and seeking equitable relief and civil
penalties. NIFLA states this chilled the speech of the Pregnancy
Counseling Center.
16 NIFLA V. HARRIS
This Court has stated that “[a] claim is fit for decision if
the issues raised are primarily legal, do not require further
factual development, and the challenged action is final.”
Wolfson, 616 F.3d at 1060 (quoting U.S. W. Commc’ns v.
MFS Intelenet, Inc., 193 F.3d 1112, 1118 (9th Cir. 1999)).
When evaluating hardship “[w]e consider whether the
‘regulation requires an immediate and significant change in
plaintiffs’ conduct of their affairs with serious penalties
attached to noncompliance.’” Stormans, Inc. v. Selecky,
586 F.3d 1109, 1126 (9th Cir. 2009) (quoting Ass’n of Am.
Med. Colls. v. United States, 217 F.3d 770, 783 (9th Cir.
2000)). “[A] litigant must show that withholding review
would result in direct and immediate hardship and would
entail more than possible financial loss.” Id. (quoting MFS
Intelenet, Inc., 193 F.3d at 1118).
We conclude that both factors favor a finding of
prudential ripeness.
This action turns on a question of law. Appellants seek to
enjoin the enforcement of the Act on the grounds that it is
unconstitutional. We require no further factual development
to address Appellants’ challenge. The district court’s order
denying the motion for a preliminary injunction was also an
appealable order. 28 U.S.C. § 1292(a)(1).
We also conclude that the parties would face immediate
and significant hardships if we were to decline to exercise
jurisdiction. Until we issue a decision, Appellants must
routinely choose between holding fast to their firmly held
beliefs about abortion, or complying with the Act. And
although the San Diego County Counsel claims that he will
suffer hardship if he is forced to defend the Act, we find more
significant the definite and direct hardship that all parties will
NIFLA V. HARRIS 17
suffer if we were to decline to find jurisdiction. As noted,
without a decision, Appellants must continually choose
between obeying the law or following their strongly held
convictions about abortion, and the AG will have to choose
whether or not to enforce a law without the benefit of a ruling
on its constitutionality.
We therefore conclude that this action is justiciable and
turn to the merits of the case.
II. The District Court Did Not Abuse Its Discretion in
Denying the Preliminary Injunction.
When bringing a motion for a preliminary injunction, a
plaintiff must demonstrate: (1) that he is likely to succeed on
the merits of his claim; (2) that he is likely to suffer
irreparable harm in the absence of preliminary relief; (3) that
the balance of equities tips in his favor; and (4) that an
injunction is in the public interest. Winter, 555 U.S. at 20. A
preliminary injunction can also be issued if “a plaintiff
demonstrates . . . that serious questions going to the merits
were raised and the balance of hardships tips sharply in the
plaintiff’s favor,” as well as satisfaction of the other Winter
factors. All. for the Wild Rockies, 632 F.3d at 1134–35
(citation omitted).
A. Appellants Cannot Demonstrate a Likelihood of
Success on their First Amendment Free Speech
Claims.
Appellants argue that the Act should be subject to strict
scrutiny for two main reasons. First, they argue that because
the Act compels content-based speech, strict scrutiny is
18 NIFLA V. HARRIS
appropriate. Second, they contend that the Act engages in
viewpoint discrimination.
We disagree. Although the Act is a content-based
regulation, it does not discriminate based on viewpoint. The
fact that the Act regulates content, moreover, does not compel
us to apply strict scrutiny. And because we agree with the
Fourth Circuit that the Supreme Court’s decision in Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992), did not
announce a rule regarding the level of scrutiny to apply in
abortion-related disclosure cases, we apply our precedent in
Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2013), and rule that
the Licensed Notice regulates professional speech, subject to
intermediate scrutiny.5 The Licensed Notice survives
intermediate scrutiny. We also conclude that the Unlicensed
Notice survives any level of scrutiny. Thus, the district court
did not err in finding that Appellants cannot show a
likelihood of success on the merits of their free speech
claims.
1. Strict Scrutiny is Inappropriate.
A regulation discriminates based on content when “on its
face,” the regulation “draws distinctions based on the
message a speaker conveys.” Reed v. Town of Gilbert, 135 S.
Ct. 2218, 2227 (2015). A regulation discriminates based on
viewpoint when it regulates speech “based on ‘the specific
5
We find unpersuasive Appellees’ argument that the Act regulates
commercial speech subject to rational basis review. See Zauderer v.
Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626,
651 (1985). Commercial speech “does no more than propose a
commercial transaction.” Coyote Pub., Inc. v. Miller, 598 F.3d 592, 604
(9th Cir. 2010) (citation omitted). The Act primarily regulates the speech
that occurs within the clinic, and thus is not commercial speech.
NIFLA V. HARRIS 19
motivating ideology or the opinion or perspective of the
speaker.’” Id. at 2230 (quoting Rosenberger v. Rector &
Visitors of Univ. of Va., 515 U.S. 819, 829 (1995)). Thus,
viewpoint discrimination is a kind of content discrimination.
Indeed, viewpoint discrimination is a “‘more blatant’ and
‘egregious form of content discrimination.’” Id. (quoting
Rosenberger, 515 U.S. at 829).
Because viewpoint discrimination is a subset of content
discrimination, a regulation can be content-based, but
viewpoint neutral. Such is the case with the Act.
On its face, the Act compels Appellants to disseminate the
Notices. See id. at 2228 (explaining that the “first step” in
assessing whether a law is content-based or content-neutral is
to “determine[ ] whether the law is content neutral on its
face”). The Act therefore requires Appellants engage in
speech on a particular subject matter. In so doing, the Act
“[m]andat[es] speech that a speaker would not otherwise
make” which “necessarily alters the content of the speech.”
Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781,
795 (1988). The Act, therefore, is a content-based
regulation.6
The Act, however, does not discriminate based on
viewpoint. It does not discriminate based on the particular
opinion, point of view, or ideology of a certain speaker.
Instead, the Act applies to all licensed and unlicensed
facilities, regardless of what, if any, objections they may have
to certain family-planning services. The Act contains two
6
We disagree with the district court’s conclusion that the Act is
content-neutral. This error, however, was harmless as it appropriately
denied the motion for a preliminary injunction.
20 NIFLA V. HARRIS
narrow exceptions that do not disfavor any particular
speakers. The first exemption is for clinics “directly
conducted, maintained, or operated by the United States or
any of its departments, officers, or agencies.” Cal. Health &
Safety Code § 123471(c)(1). This exemption was created in
order to avoid federal preemption. The Act’s second
exemption is for a clinic “enrolled as a Medi-Cal provider and
a provider in the Family Planning, Access, Care, and
Treatment Program.” Id. § 123472(c)(2). This exemption
was created because clinics that fall under § 123472(c)(2)
already provide all of the publicly-funded health services
outlined in the Licensed Notice.
Appellants argue that this case is similar to Sorrell v. IMS
Health Inc., 564 U.S. 552 (2011), in which the Supreme
Court held that a law restricting the sale and use of pharmacy
records discriminated based on viewpoint and was subject to
more rigorous judicial scrutiny. There, the Court looked to
the law’s legislative findings and concluded that the law’s
“express purpose” was to burden specific speakers. Id. at
565. Appellants assert that because the California legislature
also had specific speakers in mind when enacting the Act,
that is, CPCs and clinics opposed to abortion, the Act engages
in viewpoint discrimination. Appellants emphasize,
moreover, that California has no evidence that their clinics
actually misinform women.
Sorrell, however, did not rely solely on legislative intent.
The Court concluded that the law “on its face burden[ed]
disfavored speech by disfavored speakers,” allowing use of
the pharmacy records by all “but a narrow class of disfavored
speakers.” Id. at 564, 573. Thus, while “a statute’s stated
purpose may also be considered,” Sorrell did not turn
exclusively on the law’s motivation or purpose. Id. at 565.
 NIFLA V. HARRIS 21
Importantly, the law in Sorrell applied to the speakers that
were the targets of the law, while it exempted others. In
sharp contrast, as discussed, the Act applies to almost all
licensed and unlicensed speakers. Other than the two narrow
exceptions unrelated to viewpoint, the Act applies equally to
clinics that offer abortion and contraception as it does to
clinics that oppose those same services.
Appellants’ reliance on Conant v. Walters, 309 F.3d 629
(9th Cir. 2002), is also misplaced. In Conant, we affirmed an
injunction that prohibited the federal government from
possibly revoking a doctor’s license based on a federal policy
that “not merely prohibit[ed] the discussion of marijuana,”
but also “condemn[ed] expression of a particular viewpoint,
i.e., that medical marijuana would likely help a specific
patient.” Id. at 637.
Conant is distinguishable. Again, other than the two
exceptions, the Act applies to all clinics, regardless of their
stance on abortion or contraception. Next, unlike in Conant,
the Act does not favor or disfavor any particular viewpoint.
Indeed, contrasting this case with the Fourth Circuit’s recent
decision in Stuart v. Camnitz, 774 F.3d 238 (4th Cir. 2014),
confirms that the Act does not engage in viewpoint
discrimination. In Stuart, the Fourth Circuit held that a
statute that required doctors to perform an ultrasound, display
the sonogram, and describe the fetus to women seeking
abortions violated the physicians’ First Amendment rights.
774 F.3d at 255–56. In so doing, the Fourth Circuit
concluded that the law compelled speech that “convey[ed] a
particular opinion,” which was, “to convince women seeking
abortions to change their minds or reassess their decisions.”
Id. at 246. Here, however, the Act does not convey any
opinion. The Licensed Notice and the Unlicensed Notice do
22 NIFLA V. HARRIS
not imply or suggest any preference regarding family-
planning services. Instead, the Licensed Notice merely states
the existence of publicly-funded family-planning services,
and the Unlicensed Notice only states that the particular clinic
in which it is distributed is not licensed.
We conclude that the Act is content-based, but does not
discriminate based on viewpoint.
i. Even Though the Act Engages in Content-
Based Discrimination, Strict Scrutiny is
Inappropriate.
In arguing that content-based regulations are always
subject to strict scrutiny, Appellants cite the Supreme Court’s
recent decision in Reed. In Reed, the Supreme Court held
that a town’s regulation of the manner in which outdoor signs
were displayed was content-based and unable to satisfy strict
scrutiny. 135 S. Ct. at 2227, 2231. In reaching this
conclusion, the Court expressly stated that “[c]ontent-based
laws . . . are presumptively unconstitutional and may be
justified only if the government proves that they are narrowly
tailored to serve compelling state interests.” Id. at 2226.
Reed, however, does not require us to apply strict scrutiny
in this case. Since Reed, we have recognized that not all
content-based regulations merit strict scrutiny. See United
States v. Swisher, 811 F.3d 299, 311–13 (9th Cir. 2016) (en
banc) (discussing Reed and noting examples that illustrate
that “[e]ven if a challenged restriction is content-based, it is
not necessarily subject to strict scrutiny”).
Further, the Supreme Court has recognized a state’s right
to regulate physicians’ speech concerning abortion. In Casey,
NIFLA V. HARRIS 23
the Supreme Court considered Pennsyvania’s requirement
that a physician provide abortion-related information to his or
her patient, writing:
All that is left of petitioners’ argument is an
asserted First Amendment right of a physician
not to provide information about the risks of
abortion, and childbirth, in a manner
mandated by the State. To be sure, the
physician’s First Amendment rights not to
speak are implicated . . . but only as part of
the practice of medicine, subject to
reasonable licensing and regulation by t h e
State . . . We see no constitutional infirmity
in the requirement that the physician provide
the information mandated by the State here.
505 U.S. at 884 (citations omitted) (emphasis added). Over
a decade later, in Gonzales v. Carhart, the Court wrote that
“the State has a significant role to play in regulating the
medical profession.” 550 U.S. 124, 157 (2007).
In interpreting these cases, courts have not applied strict
scrutiny in abortion-related disclosure cases, even when the
regulation is content-based. See Stuart, 774 F.3d at 248–49
(applying intermediate scrutiny); Tex. Med. Providers
Performing Abortion Servs. v. Lakey, 667 F.3d 570, 576 (5th
Cir. 2012) (applying a reasonableness test); Planned
Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724,
734–35 (8th Cir. 2008) (applying a reasonableness test).
Thus, Appellants’ argument that the Act, a content-based
regulation, must be subject to strict scrutiny is unpersuasive.
We have recognized that not all content-based regulations are
24 NIFLA V. HARRIS
subject to strict scrutiny, and courts have routinely applied a
lower level of scrutiny when states have compelled speech
concerning abortion-related disclosures.
ii. Casey Did Not Announce a Rule Regarding
the Level of Scrutiny to Apply to Abortion-
related Disclosure Cases.
Although courts are in agreement that strict scrutiny is
inappropriate in abortion-related disclosure cases, there is
currently a circuit split regarding the appropriate level of
scrutiny to apply. In interpreting Casey and Gonzales, and in
particular the above quoted excerpt from Casey, the Fifth and
Eighth Circuits have applied a “reasonableness” test when
determining whether an abortion-related disclosure law
violated physicians’ First Amendment rights. In Lakey, the
Fifth Circuit held that the appropriate level of scrutiny for
abortion-related disclosures was “the antithesis of strict
scrutiny,” upholding a law requiring doctors to show pregnant
women sonograms of their fetuses and make audible the
fetuses’ heartbeats. 667 F.3d at 575. The Lakey court
interpreted Casey and Gonzales to mean that such laws were
permissible as they “are part of the state’s reasonable
regulation of medical practice.” Id. at 576. Similarly, in
construing Casey and Gonzales, the Eighth Circuit upheld a
law regulating informed consent to abortion, concluding that
a state “can use its regulatory authority to require a physician
to provide truthful, non-misleading information” to patients
in the context of abortion-related disclosures. Rounds,
530 F.3d at 734–35.
The Fourth Circuit, however, disagreed that Casey created
an entirely new standard to apply in abortion-related
disclosure cases. In Stuart, the Fourth Circuit concluded that
NIFLA V. HARRIS 25
“[t]he single paragraph in Casey does not assert that
physicians forfeit their First Amendment rights in the
procedures surrounding abortions, nor does it announce the
proper level of scrutiny to be applied to abortion regulations
that compel speech[.]” 774 F.3d at 249. The court also noted
that Gonzales did not shed light on the First Amendment
standard post-Casey, since Gonzales was not a First
Amendment case. Id. Thus, the court assessed a law
requiring doctors to perform an ultrasound, sonogram, and
describe the fetus to pregnant patients under a professional
speech framework. Id. at 247–48, 252, 256. The court
concluded that intermediate scrutiny was the appropriate
standard and that the law failed this level of scrutiny. Id.
Applying intermediate scrutiny, the court explained, was
“consistent with Supreme Court precedent and appropriately
recognizes the intersection . . . of regulation of speech and
regulation of the medical profession in the context of an
abortion procedure.” Id. at 249.
We agree with the Fourth Circuit that Casey did not
establish a level of scrutiny to apply in abortion-related
disclosure cases. Casey’s short discussion of a physician’s
First Amendment rights in the context of abortion means only
what it says—that there was no violation of the physicians’
First Amendment rights given the particular facts of Casey.
See 505 U.S. at 884 (“We see no constitutional infirmity in
the requirement that the physician provide the information
mandated by the State here.” (emphasis added)). We need
not “read too much,” Stuart, 774 F.3d at 249, into Casey’s
statement that physicians are “subject to reasonable licensing
and regulation by the State.” 505 U.S. at 884. Casey did not
announce an entirely new rule with this limited statement.
See Stuart, 774 F.3d at 249 (“That particularized finding [in
Casey] hardly announces a guiding standard of scrutiny for
26 NIFLA V. HARRIS
use in every subsequent compelled speech case involving
abortion.”). Nor did it render inapplicable other frameworks
for assessing free speech claims when the speech at issue
concerns abortion. Instead, what Casey did was merely
confirm what we have always known, which is that
professionals are subject to reasonable licensing by the state.
See, e.g., Dent v. West Virginia, 129 U.S. 114, 122 (1889)
(examining a law regulating the medical profession and
writing that “[t]he power of the state to provide for the
general welfare of its people authorizes it to prescribe all such
regulations as in its judgment will secure or tend to secure
them against the consequences of ignorance and incapacity,
as well as of deception and fraud”).
We also agree with the Fourth Circuit that Gonzales did
not clearly speak to the level of scrutiny to apply to
physician’s First Amendment rights. See Stuart, 774 F.3d at
249 (“The fact that a regulation does not impose an undue
burden on a woman under the due process clause does not
answer the question of whether it imposes an impermissible
burden on the physician under the First Amendment.”).
We rule that strict scrutiny is inappropriate, and that
Casey did not announce a level of scrutiny to apply in
abortion-related disclosure cases.
2. The Licensed Notice Is Professional Speech
Subject to Intermediate Scrutiny.
In Pickup, we assessed the level of scrutiny to apply to
Senate Bill 1172, a California law that banned mental health
therapists from conducting on minor patients any practice that
purported to change a patient’s sexual orientation. 740 F.3d
at 1221. We explained that the level of protection to apply to
NIFLA V. HARRIS 27
specific instances of professional speech or conduct is best
understood as along a continuum. At one end is a
professional’s right to engage in a “public dialogue, [where]
First Amendment protection is at its greatest.” Id. at 1227.
There, “[professionals] are constitutionally equivalent to
soapbox orators and pamphleteers, and their speech receives
robust protection[.]” Id. at 1227–28. On the other end lies
professional conduct, where the speech at issue is, for
example, a form of treatment. Id. at 1229. When regulating
conduct, “the state’s power is great, even though such
regulation may have an incidental effect on speech.” Id.
Because the law in Pickup involved the regulation of a
specific type of therapy, we held that it regulated professional
conduct subject to rational basis review. Id. at 1231.
Pickup also delineated professional speech that falls in the
middle of the continuum. At the midpoint, “the First
Amendment tolerates a substantial amount of speech
regulation within the professional-client relationship that it
would not tolerate outside of it” because “[w]hen
professionals, by means of their state-issued licenses, form
relationships with clients, the purpose of those relationships
is to advance the welfare of the clients, rather than to
contribute to public debate.” Id. at 1228. Pickup, however,
never discussed the level of scrutiny appropriate for speech
that fell at the midpoint.
We conclude that the Licensed Notice regulates speech
that falls at the midpoint of the Pickup continuum, and that
intermediate scrutiny should apply.
To begin, the Licensed Notice regulates professional
speech. Underlying the Pickup opinion is the principle that
professional speech is speech that occurs between
28 NIFLA V. HARRIS
professionals and their clients in the context of their
professional relationship. In other words, speech can be
appropriately characterized as professional when it occurs
within the confines of a professional’s practice. See King v.
Governor of N.J., 767 F.3d 216, 232 (3d Cir. 2014) (“[W]e
conclude that a licensed professional does not enjoy the full
protection of the First Amendment when speaking as part of
the practice of her profession.” (emphasis added)). The idea
that the speech that occurs between a professional and a client
is distinct from other types of speech stems from the belief
that professionals, “through their education and training, have
access to a corpus of specialized knowledge that their clients
usually do not” and that clients put “their health or their
livelihood in the hands of those who utilize knowledge and
methods with which [they] ordinarily have little or no
familiarity.” Id.; see also Lowe v. SEC, 472 U.S. 181, 232
(1985) (White, J., concurring) (“One who takes the affairs of
a client personally in hand and purports to exercise judgment
on behalf of the client in the light of the client’s individual
needs and circumstances is properly viewed as engaging in
the practice of a profession.”). This is why states have the
power to regulate professions, see, e.g., Barsky v. Bd. of
Regents of Univ. of N.Y., 347 U.S. 442, 449 (1954) (“The
state’s discretion . . . extends naturally to the regulation of all
professions concerned with health.”), as well as the power to
regulate the speech that occurs within the practice of the
profession.
Licensed clinics engage in speech that occurs squarely
within the confines of their professional practice. For
example, Pregnancy Care Clinic provides medical services
such as ultrasounds, clinical services such as medical
referrals, and non-medical services such as peer counseling
and education. Thus, a regular client of Pregnancy Care
NIFLA V. HARRIS 29
could easily use many of their services throughout the stages
of her pregnancy, such as receiving educational information
about best health practices when pregnant, relying upon
Pregnancy Care for regular check-ups, or using Pregnancy
Care as a resource for counseling. In all these instances, the
client and Pregnancy Care engage in speech that is part of
Pregnancy Care’s professional practice of offering family-
planning services. There is no question that Pregnancy
Care’s clients go to the clinic precisely because of the
professional services it offers, and that they reasonably rely
upon the clinic for its knowledge and skill. Because licensed
clinics offer medical and clinical services in a professional
context, the speech within their walls related to their
professional services is professional speech.
The professional nature of their speech does not change
even if Appellants decide to have staff members disseminate
the Licensed Notice in the clinics’ waiting rooms, instead of
by doctors or nurses in the examining room. Here, the
professional nature of the licensed clinics’ relationship with
their clients extends beyond the examining room. All the
speech related to the clinics’ professional services that occurs
within the clinics’ walls, including within in the waiting
room, is part of the clinics’ professional practice.
Furthermore, the Licensed Notice contains information
regarding the professional services offered by the clinics, and
thus would constitute professional speech regardless of where
within the clinic it was disseminated.
We now turn to the correct level of scrutiny to apply to
the Licensed Notice and conclude that under our precedent in
Pickup, intermediate scrutiny applies. Licensed Clinics are
not engaging in a public dialogue when treating their clients,
and they are not “constitutionally equivalent to soapbox
30 NIFLA V. HARRIS
orators and pamphleteers.” Pickup, 740 F.3d at 1227. Thus,
it would be inappropriate to apply strict scrutiny. And, unlike
in Pickup, the Licensed Notice does not regulate therapy,
treatment, medication, or any other type of conduct. Instead,
the Licensed Notice regulates the clinics’ speech in the
context of medical treatment, counseling, or advertising.7
Because the speech here falls at the midpoint of the
Pickup continuum, it is not afforded the “greatest” First
Amendment protection, nor the least. Id. It follows,
therefore, that speech in the middle of the Pickup continuum
should be subject to intermediate scrutiny. See Stuart,
774 F.3d at 249 (applying intermediate scrutiny when
physicians challenged an abortion-related disclosure law they
claimed violated their First Amendment rights); King,
767 F.3d at 237 (applying intermediate scrutiny when
therapists challenged a law prohibiting therapy that purported
to change patients’ sexual-orientation, which it had
determined was professional “speech” rather than “conduct”).
Applying intermediate scrutiny is consistent with the
principle that “within the confines of a professional
relationship, First Amendment protection of a professional’s
speech is somewhat diminished,” Pickup, 740 F.3d at 1228,
but that professionals also do not “simply abandon their First
Amendment rights when they commence practicing a
profession.” Stuart, 774 F.3d at 247.
Appellants cite In Re Primus, 436 U.S. 412 (1978), to
argue that strict scrutiny should apply to professional speech
when the professional services at issue are offered free of
7
We disagree with the district court’s conclusion that the Act
regulates conduct. The district court’s error, however, was harmless as it
appropriately denied the motion for a preliminary injunction.
NIFLA V. HARRIS 31
charge. We reject this argument.8 In In re Primus, the
Supreme Court addressed whether a lawyer’s First
Amendment rights were violated when a state bar punished
her for writing a letter to a possible client about free legal
services available at the American Civil Liberties Union, an
organization with which she was affiliated, but offered her no
compensation. 436 U.S. at 414–15. The Supreme Court held
that the lawyer’s constitutional rights were violated, writing
that “[i]n the context of political expression and association
. . . a State must regulate with significantly greater precision.”
Id. at 437–38. Here, however, Appellants have positioned
themselves in the marketplace as pregnancy clinics. Their
non-profit status does not change the fact that they offer
medical services in a professional context. Nor does their
non-profit status transform them into, for example, an
organization that engages in “political expression and
association.” Id.
3. The Licensed Notice Survives Intermediate
Scrutiny.
In order to survive intermediate scrutiny, “the State must
show . . . that the statute directly advances a substantial
governmental interest and that the measure is drawn to
achieve that interest.” Sorrell, 564 U.S. at 572. Intermediate
scrutiny is “demanding” but requires less than strict scrutiny.
8
We do not think a necessary element of professional speech is for
the client to be a paying client. A lawyer who offers her services to a
client pro bono, for example, nonetheless engages in professional speech.
But see Moore-King v. Cty. of Chesterfield, 708 F.3d 560, 569 (4th Cir.
2013) (“[T]he relevant inquiry to determine whether to apply the
professional speech doctrine is whether the speaker is providing
personalized advice in a private setting to a paying client or instead
engages in public discussion and commentary.” (emphasis added)).
32 NIFLA V. HARRIS
Retail Digital Network, LLC v. Appelsmith, 810 F.3d 638, 648
(9th Cir. 2016). “What is required is ‘a fit that is not
necessarily perfect, but reasonable; that represents not
necessarily the single best disposition but one whose scope is
in proportion to the interest served; that employs not
necessarily the least restrictive means but . . . a means
narrowly tailored to achieve the desired objective.’” Id. at
649 (quoting Bd. of Trustees of the State Univ. of N.Y. v. Fox,
492 U.S. 469, 480 (1989)).
We conclude that the Licensed Notice satisfies
intermediate scrutiny. California has a substantial interest in
the health of its citizens, including ensuring that its citizens
have access to and adequate information about
constitutionally-protected medical services like abortion. The
California Legislature determined that a substantial number
of California citizens may not be aware of, or have access to,
medical services relevant to pregnancy. See Assem. Bill No.
775 § 1(b). This includes findings that in 2012, 2.6 million
California women were in need of publicly-funded family-
planning services, and that thousands of pregnant California
women remain unaware of the state-funded programs that
offer an array of services, such as health education and
planning, prenatal care, and abortion. Id. As we have long
recognized, “[s]tates have a compelling interest in the
practice of professions within their boundaries, and . . . as
part of their power to protect the public health, safety, and
other valid interests they have broad power to establish
standards for . . . regulating the practice of professions.” Am.
Acad. of Pain Mgmt. v. Joseph, 353 F.3d 1099, 1109 (9th Cir.
2004) (quoting Fla. Bar v. Went For It, Inc., 515 U.S. 618,
625 (1994)).
NIFLA V. HARRIS 33
We conclude that the Licensed Notice is narrowly drawn
to achieve California’s substantial interests. The Notice
informs the reader only of the existence of publicly-funded
family-planning services. It does not contain any more
speech than necessary, nor does it encourage, suggest, or
imply that women should use those state-funded services.
The Licensed Notice is closely drawn to achieve California’s
interests in safeguarding public health and fully informing
Californians of the existence of publicly-funded medical
services. And given that many of the choices facing pregnant
women are time-sensitive, such as a woman’s right to have an
abortion before viability, Casey, 505 U.S. at 846, we find
convincing the AG’s argument that because the Licensed
Notice is disseminated directly to patients whenever they
enter a clinic, it is an effective means of informing women
about publicly-funded pregnancy services.
Appellants argue that because California could find other
ways to disseminate the information in the Licensed Notice
to the public, such as in an advertising campaign, the Act
cannot survive heightened scrutiny. The Second and Fourth
Circuits used similar reasoning to strike down provisions of
abortion-related regulations. See Evergreen Ass’n, Inc. v.
City of N.Y., 740 F.3d 233, 250 (2d Cir. 2014) (stating that
“the City can communicate this message through an
advertising campaign”); Centro Tepeyac v. Montgomery Cty.,
722 F.3d 184, 191 (4th Cir. 2013) (en banc) (stating that the
government had “several options less restrictive than
compelled speech” such as “launch[ing] a public awareness
campaign” (internal quotation marks and citation omitted)).
But Evergreen and Centro Tepeyac applied strict scrutiny,
which is much more stringent than the intermediate scrutiny
we apply today. Unlike when evaluating a law under strict
34 NIFLA V. HARRIS
scrutiny, under intermediate scrutiny, a law need not be the
least restrictive means possible. See Appelsmith, 810 F.3d at
649. Thus, even if it were true that the state could
disseminate this information through other means, it need not
prove that the Act is the least restrictive means possible.9
Further, unlike the portions of the regulations before the
Second and Fourth Circuits, the Licensed Notice does not use
the word “encourage,” or other language that suggests the
California Legislature’s preferences regarding prenatal care.
See Evergreen, 740 F.3d at 250 (striking down the portion of
the regulation that required clinics to state that “the New
York City Department of Health and Mental Hygiene
encourages women who are or who may be pregnant to
consult with a licensed provider”); Centro Tepeyac, 722 F.3d
at 191 (striking the portion of the regulation that mandated
clinics to state that “the Montgomery County Health Officer
encourages women who are or may be pregnant to consult
with a licensed health care provider”).
4. The Unlicensed Notice Survives Any Level of
Review.
We now address the speech regulated by the Unlicensed
Notice. While we acknowledge that unlicensed clinics do not
offer many of the medical services available at licensed
9
We note that, given the preliminary stage of this case, it is unclear
whether California actually could have disseminated this information as
effectively in an advertising campaign, as Appellants argue. At oral
argument, the AG noted that California has advertised its publicly-funded
programs, but many women were still unaware of their existence given the
expansion of certain health programs. Oral Argument at 28:44, A
Woman’s Friend Pregnancy Resource Clinic v. Harris, No. 15-17517,
http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000009827.
NIFLA V. HARRIS 35
clinics, they nonetheless offer some professional services.
Fallbrook Pregnancy Center, for example, offers educational
programs. They also give medical referrals for ultrasounds
and sonographs, which are offered nearby. Indeed, the Act
covers unlicensed clinics like Fallbrook precisely because
their “primary purpose is [to provide] pregnancy-related
services” and those services can include collecting health
information, offering prenatal care, or pregnancy tests and
diagnosis. Cal. Health & Safety Code § 123471(b).
We need not resolve the question, however, of whether
the Unlicensed Notice regulates professional speech because
it is clear to us that the Unlicensed Notice will survive even
strict scrutiny.
In order to survive strict scrutiny, a regulation must be
“narrowly tailored to serve a compelling interest.” Williams-
Yulee v. Fla. Bar, 135 S. Ct. 1656, 1665 (2015).
California has a compelling interest in informing pregnant
women when they are using the medical services of a facility
that has not satisfied licensing standards set by the state. And
given the Legislature’s findings regarding the existence of
CPCs, which often present misleading information to women
about reproductive medical services, California’s interest in
presenting accurate information about the licensing status of
individual clinics is particularly compelling.
We conclude that the Unlicensed Notice is narrowly
tailored to this compelling interest. By stating that the clinic
in which it is disseminated is not licensed by the State of
California, the Unlicensed Notice helps ensure that women,
who may be particularly vulnerable when they are searching
for and using family-planning clinical services, are fully
36 NIFLA V. HARRIS
informed that the clinic they are trusting with their well-being
is not subject to the traditional regulations that oversee those
professionals who are licensed by the state. The Unlicensed
Notice is also only one sentence long. It merely states that
the facility in which it appears is not licensed by California
and has no state-licensed medical provider. It says nothing
about the quality of service women may receive at these
clinics, and in no way implies or suggests California’s
preferences regarding unlicensed clinics.
The Second and Fourth Circuits held that regulations with
provisions similar to the Unlicensed Notice survived strict
scrutiny. In Evergreen, the Second Circuit concluded that the
portion of the regulation that required clinics to state if they
“have a licensed medical provider on staff who provides or
directly supervises the provision of all of the services”
survived strict scrutiny because it was not overly broad, and
was “the least restrictive means to ensure that a woman [was]
aware of whether or not a particular pregnancy services
center ha[d] a licensed medical provider.” 740 F.3d at
246–47 (emphasis in original). Similarly, in Centro Tepeyac,
the Fourth Circuit held that the portion of the regulation that
stated “the Center does not have a licensed medical
professional on staff,” survived strict scrutiny because it
“merely notifie[d] patients that a licensed medical
professional [was] not on staff, d[id] not require any other
specific message, and in neutral language state[d] the truth.”
722 F.3d at 190 (internal quotation marks and citation
omitted). The surviving portions of the regulations in
Evergreen and Centro Tepeyac merely state whether or not
the clinics had licensed providers, which is exactly what the
Unlicensed Notice does.
NIFLA V. HARRIS 37
We therefore hold that the district court did not abuse its
discretion in finding that Appellants cannot demonstrate a
likelihood of success on their free speech claim. The
Licensed Notice regulates professional speech, subject to
intermediate scrutiny, which it survives. The Unlicensed
Notice survives any level of review.10
B. Appellants Cannot Demonstrate a Likelihood of
Success on their First Amendment Free Exercise
Claim.
Courts have long recognized that “the right of free
exercise does not relieve an individual of the obligation to
comply with a ‘valid and neutral law of general applicability
on the ground that the law proscribes (or prescribes) conduct
that his religion prescribes (or proscribes).’” Empl’t Div.,
Dep’t. of Human Res. of Or. v. Smith, 494 U.S. 872, 879
(1990) (quoting United States v. Lee, 455 U.S. 252, 263 n.3
(1982) (Stevens, J., concurring in judgment)). A neutral and
generally applicable law is subject to only rational basis
review. Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1075–76
(9th Cir. 2015).
The Act is facially neutral. “A law lacks facial neutrality
if it refers to a religious practice without a secular meaning
discernable from the language or context.” Id. at 1076
(citation omitted). The Act references no religious practice
and is thus facially neutral.
10
To be clear, we do not conclude that strict scrutiny is the correct
level of scrutiny to apply to the Unlicensed Notice. We only conclude that
it can survive strict scrutiny.
38 NIFLA V. HARRIS
The Act is also operationally neutral. It “prescribe[s] and
proscribe[s] the same conduct for all, regardless of
motivation.” Id. at 1077. The Act applies to all covered
facilities, and is indifferent to the basis for any objection.
Thus, contrary to Appellants’ assertion, this case is
distinguishable from Church of Lukumi Babalu Aye, Inc. v.
City of Hialeah. There, the Supreme Court found non-neutral
a law that banned animal sacrifices for only a particular
religion while sacrifices “that [were] no more necessary or
humane in almost all other circumstances [went]
unpunished.” 508 U.S. 520, 536 (1993). But, unlike in
Lukumi, the Act applies to all licensed and unlicensed
facilities, regardless of any objection, religious or otherwise.
The fact that Appellants’ objections are grounded in their
religious beliefs does not affect the Act’s neutrality. See
Stormans, 794 F.3d at 1077 (“The Free Exercise Clause is not
violated even if a particular group, motivated by religion,
may be more likely to engage in the proscribed conduct.”).
The Act is generally applicable. “[I]f a law pursues the
government’s interest only against conduct motivated by
religious belief but fails to include in its prohibitions
substantial, comparable secular conduct that would similarly
threaten the government’s interest, then the law is not
generally applicable.” Id. at 1079 (internal quotation marks
and citation omitted). A law is not generally applicable if it
“in a selective manner impose[s] burdens only on conduct
motivated by religious belief[.]” Lukumi, 508 U.S. at 543.
The Act has two exemptions, and neither renders the Act
not generally applicable. As noted, the Act’s first exemption
exists to avoid federal preemption, and its second exemption
is for clinics that already provide all of the publicly-funded
services outlined in the Act. See supra section II.A.1.
NIFLA V. HARRIS 39
Because the Act’s exemptions are “tied directly to limited,
particularized, business-related, objective criteria,” the Act is
generally applicable. Stormans, 794 F.3d at 1082.
And finally, this action is not a “hybrid-rights” case in
which a free exercise plaintiff has made out a “colorable
claim that a companion right has been violated.” San Jose
Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1032
(9th Cir. 2004). Appellants have not shown a likelihood of
success on the merits of their free speech claim. Thus, there
is no “colorable claim” for “a companion right.” Id.
We conclude that the Act is a neutral law of general
applicability, subject to only rational basis review. See
Stormans, 794 F.3d at 1075–76. Because the Licensed Notice
survives intermediate scrutiny, and the Unlicensed Notice
survives any level of review, the Act necessarily also survives
rational basis review.11
CONCLUSION
Appellants have failed to demonstrate that the first, most
important, Winter factor favors granting their motion for a
preliminary injunction. Garcia, 786 F.3d at 740. We reject
Appellants’ arguments that they are entitled to a preliminary
11
We also find that Appellants have not raised “serious questions”
going to the merits of their claims; thus, the alternate test set forth in
Alliance for the Wild Rockies does not apply. The district court’s
conclusion that there were serious questions going to the merits was
harmless error because the district court appropriately denied the motion
for a preliminary injunction. Because Appellants cannot show a
likelihood of success on the merits or “serious questions” going to the
merits of their First Amendment claims, we need not discuss the
remaining Winter factors.
40 NIFLA V. HARRIS
injunction based on their free speech claims. The Act is a
content-based regulation that does not discriminate based on
viewpoint. And because Casey did not announce a new rule
regarding the level of scrutiny to apply to abortion-related
disclosure cases, we apply this Court’s professional speech
framework and conclude that the Licensed Notice is subject
to intermediate scrutiny, which it survives. The Unlicensed
Notice survives any level of review.
We also reject Appellants’ arguments that they are
entitled to a preliminary injunction based on their free
exercise claims. The Act is a neutral law of general
applicability, which survives rational basis review.
Appellants, therefore, are unable to demonstrate
likelihood of success on the merits of their First Amendment
claims.
AFFIRMED.