OCR Finds the State of California Violated Federal Law in Discriminating Against Pregnancy Resource Centers

Today the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) announced that it found that the State of California violated the federal conscience protection laws known as the Weldon and Coats-Snowe Amendments. This is the first time since the launch of the new Conscience and Religious Freedom Division a year ago that OCR has found a violation under these laws. This matter arose from complaints filed by Sacramento Life Center, LivingWell Medical Clinic, Pregnancy Center of the North Coast, and Confidence Pregnancy Center alleging that California subjected them to potential fines and discrimination for refusing to post notices referring for abortion.

California adopted the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (the “FACT Act”) on October 9, 2015, which required pregnancy resource centers that met the FACT Act’s definition of “licensed covered facilities” to post notices stating that California provides free or low-cost family planning services and abortion. The FACT Act also required pregnancy resource centers that constituted “unlicensed covered facilities” under the Act to post notices in advertisements and communications. A violation of the FACT Act threatened civil fines of $500 for a first offense and $1,000 for each subsequent offense.

The Weldon and Coats-Snowe Amendments prohibit state and local governments that receive certain federal funds from subjecting health care entities to discrimination on the basis that the health care entity does not perform or refer for abortions.

On June 26, 2018, the U.S. Supreme Court decided National Institute of Family and Life Advocates v. Becerra (“NIFLA”), finding that the FACT Act likely violated the First Amendment rights of pregnancy resource centers by impermissibly compelling speech. In concurrence, Justice Kennedy stated that “viewpoint discrimination is inherent in the design and structure of [the] Act” and that California required “primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions.”

OCR’s Conscience and Religious Freedom Division, established last year, conducted an independent investigation and determined that the FACT Act violated the Weldon and Coats-Snowe Amendments by requiring “licensed covered facilities” to refer for abortion and violated the Weldon amendment by subjecting “unlicensed covered facilities” to discrimination by targeting them for burdensome and unnecessary notice requirements because they do not refer for or make arrangements for abortion.

Following the Supreme Court’s decision in NIFLA, a federal district court enjoined California from enforcing the FACT Act against any pregnancy resource center in the state. OCR is issuing its finding of violation for California’s unlawful discrimination, and, as a result of the permanent injunction, is closing the complaint as favorably resolved for the complainants and all similarly situated parties. If California were to violate the terms of the injunction it would be subject to a reopening of the complaints and further enforcement action by OCR.

Roger Severino, director of OCR, stated, “We are pleased that the Supreme Court blocked California’s blatant discrimination against non-profits that give life-affirming options to women facing unplanned pregnancies. Our violation finding underscores not only that California must follow the Constitution, but that it also must respect federal conscience protection laws when it accepts federal funds.”