Californians have always been big on free speech. Although student protesters in the 1960s dubbed Berkley the birthplace of the Free Speech Movement, the tradition is far older. The California Constitution, adopted in 1849—a year before statehood—
contains some of this country’s strongest free-speech protections in its Declaration of Rights, as well as language upholding liberty of conscience, the “individual freedom of mind.”
But on Oct. 9, 2015, California took a big step in the opposite direction: forced speech.
That’s when Gov. Jerry Brown signed Assembly Bill 775, which effectively requires pro-life pregnancy resource centers (PRCs) to advertise for the abortion industry.
The so-called Reproductive FACT (Freedom, Accountability, Comprehensive Care and Transparency) Act mandates that all facilities whose primary purpose is “providing family planning or pregnancy-related services” post this notice:
“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 [local telephone number].”
Moreover, the notice has to be prominent. Licensed facilities have to post it in a “conspicuous place” in at least 22-point type on a sheet at least 8 1/2 by 11 inches. Centers without a licensed medical provider on staff must say so in at least 48-point type—and include it in all public ads in type larger than the surrounding text. Penalties are $500 for a first offense, $1,000 for each subsequent one—fines that can add up quickly.
With this law, California went where no state had gone before—only some local and county governments whose measures had been struck down in court (New York City, Baltimore, Austin, and Montgomery County, Md.). And where California goes, other states often follow: Similar laws have since been passed by Connecticut, Hawaii and Illinois.
The FACT Act, however, may yet be overturned. It’s facing legal challenges in both federal and state courts. And while several of the federal lawsuits are still making their way through the chain, a state-level challenge has been the first to bear fruit: On Oct. 30, 2017, Riverside County Superior Court Judge Gloria Trask issued a statewide injunction against the law.
Trask’s ruling isn’t the final word: California Attorney General Xavier Becerra immediately vowed to appeal. But it does mean that two years into the battle, the people at the pro-life PRCs can see a pathway to victory.
Seizing an Opportunity
While AB 775 sponsors called their bill the FACT Act, it went by another name among pro-lifers: the Bully Bill.
“When we first heard about it, we were shocked,” says Janette Chun, executive director of Birth Choice of Temecula. “But we had to make a decision about our response almost immediately. And we decided: ‘If God be with us, who can be against us?’
“Whatever happens, we’re going to do what we have to before the Lord. The government should not have the power to force centers like ours to advertise for the abortion industry. It’s unacceptable.”
That was a widespread feeling among PRCs. So when the bill was signed, they were quick to take action.
The National Institute of Family and Life Advocates (NIFLA)—an alliance of more than 1,300 PRCs nationwide, 136 of them in California—filed suit in federal court. The centers had heavyweight help: national religious-liberty legal groups like Alliance Defending Freedom and the American Center for Law and Justice.
The NIFLA case wasn’t the only one of its kind: All told, four federal lawsuits were launched. Just before this issue of Citizen went to press, the U.S. Supreme Court announced it would hear the PRCs’ appeal the 9th U.S. Circuit Court sometime early this year. Pro-life organizations—several of which submitted friend-of-the-court briefs on the PRCs’ behalf—cheered.
“In communities across the country, these agencies offer low- or no-cost services for women who seek to carry their children to term. California’s abusive law will not save one life; rather it will hasten the destruction of it by targeting the heart of pregnancy centers’ mission of service,” noted Charlotte Lozier Institute President Chuck Donovan. “The law would also reduce women’s options at one of the most critical times in their lives. We look forward to a clear message from the High Court that this mandate and its cruel effects violate fundamental First Amendment guarantees.”
But in addition to the federal cases, someone opened a second front.
That someone was Scott Scharpen, president of the Scharpen Foundation—which operates a mobile PRC, Go Mobile for Life, traveling through several communities
in Riverside County.
“My first reaction was what I said later on in a press release: ‘I will not post that notice in our clinic,’ ” Scharpen says. “ ‘I would rather close the clinic than post that notice.’ ”
Scharpen found an alternative when he was contacted by an attorney he knew, Riverside County-based Robert Tyler, who—among other things—heads a religious-
liberty legal group, Advocates for Faith & Freedom.
“Bob told me how protections for free speech are actually stronger in the California Constitution than in the federal one,” Scharpen says. “There’s a higher hurdle for the state to surmount.”
There was also an opportunity to kill two birds with one stone: In winning on the state level, Tyler—who was working on one of the federal suits, Livingwell Medical Clinic, Inc. v. Xavier Becerra—saw a chance to send a message to federal and other states’ courts.
“We lawyers often overlook the state court system because we’re looking to set broader precedents which apply beyond our state,” Tyler says. “But state courts present opportunities too. Their rulings have persuasive power—and they often do have an impact beyond their states.”
Scharpen agreed: It definitely was worth a try.
In December 2015, the firm of Tyler & Bursch, LLP, filed The Scharpen Foundation Inc. v. Harris in Riverside County Superior Court. Then the hard work started—months of legal wrangling, research, filings and responses, up against the resources of the State of California.
For those working on the case, it wasn’t just another job: It was a matter of heartfelt commitment. And for one of them, it was personal.
Legal counsel Nada Higuera, who spearheaded
the case, had undergone an abortion years ago before becoming passionately pro-life. (For more on her, see “Lawyer for Life,” page 16.) Far from being drained by all the work, she thrived on it.
“I’d get tired when I worked on other cases—business law, things dealing with accounting and numbers,” she says. “Then when I worked on this case, I had so much enthusiasm and energy. The time flew by.”
In December 2016, one year into the case, Higuera learned she was pregnant. Which just added another shot of motivation.
“The case became even more personal to me,” she says. “Reviewing our client’s materials, looking at pamphlets on child development—these were things I already knew, but it was even clearer to me how valuable life is, how important our client’s work is.”
The attorneys had their ups and downs, especially for the first year. Long story short, they went through four judges, and the only one who issued a decision ruled against them. But in January 2017, the case landed on Trask’s desk. And the fifth time was the charm.
As the case progressed, it became increasingly clear that Trask was receptive to Higuera’s arguments. “The State commands the clinics to post specific directions for whom to contact to obtain an abortion,” she wrote after a July hearing. “It forces the clinic to point the way to the abortion clinic and can leave patients with the belief they were referred to an abortion provider by that clinic. … in Scharpen’s case that would be inaccurate, profoundly inaccurate.”
“She was listening, asking great questions, showing she understood the law and the issues,” Higuera says. “That gave us hope.”
On Oct. 30, that hope was borne out.
“The statute compels the clinic to speak words with which it profoundly disagrees when the state has numerous alternative methods of publishing its message,” Trask wrote in her injunction. “Compelled speech of a political or cultural nature is not the tool of a free government.”
‘Don’t Give Up on California’
When asked what his reaction was to the ruling, Scharpen lets out a loud celebratory yell: “Whooooo!”
“That was the first thing I did. I said, ‘Praise the Lord! Thank you, God, for justice!”
Scharpen knows other courts will have their say, and no result is guaranteed. Yet even if the worst-case scenario comes to pass down the line, he sees great blessings in the near future.
“Lives are going to be saved because of this ruling,” Scharpen says, his voice breaking. “This law is moot until an appeals court says otherwise—hopefully at least months from now. During that time, these centers will keep operating free of this law, and some women and children will be saved as a result.”
So what are the ruling’s prospects for holding up in higher courts? Tyler is optimistic.
“Surprising as it may seem, we’re in a decent (legal) venue,” he says. “California courts have been very protective of free speech.”
Moreover, research by Higeura and another attorney, Christine Torres, turned up another angle to pursue besides free speech—evidence that the centers were targeted based on their political and religious views.
The FACT Act essentially exempts all for-profit clinics that provide medical care, as well as all licensed clinics that provide abortions. Out of 1,379 California clinics that deal with pregnancy, just 89 are covered by this law—at least 79 of which are avowedly pro-life, and none of which perform abortions.
“That information didn’t play into Justice Trask’s decision, but it’s in the judicial record now,” Tyler says. “I think it’s a very strong argument that could carry the day in other courts, either in this state or in the U.S. Supreme Court.”
This is better news than many people nationwide expect to hear come out of the Golden State, Tyler says.
“The other day, I was on a conference call with some (religious liberty) attorneys, and one of them made a comment: ‘Bob, we gave up on California a long time ago.’ I’ve heard that many times.
“But as radical as things can be on the ‘Left Coast,’ we’ve seen some victories recently, especially in the area of free speech. This is one of them. It should give hope to people both here and across the country. We’re telling people: ‘Don’t give up on California.’ ”
Whatever happens, the people at the PRCs say they’ll go forward with their work in faith.
“The attitude I’ve asked of my staff—and of myself—is to trust in the Lord,” Chun says. “Whatever God does in this process is going to make His name great in the end. It’ll put life and His creation in the forefront. And those of us who are trying to protect them will have a voice that’ll be heard.”
Originally published in the January/February 2018 issue of Citizen magazine.