Religious anti-abortion groups are trading legal fire with state attorneys over whether a new Hawaii law regulating certain pregnancy clinics violates First Amendment rights to freedom of speech and religion.
Legislative supporters of Senate Bill 501, now Act 200, said it ensures Hawaii women receive comprehensive and unbiased information about pregnancy options. But some pregnancy centers affiliated with religious organizations say it forces them to promote abortion in violation of their beliefs and stated missions.
Attorney General spokesman Joshua Wisch said state attorneys are preparing for the next hearing in the case Sept. 22, but declined to elaborate.
A Place for Women in Waipio is run by Calvary Church Pearl Harbor.
Cory Lum/Civil Beat
Calvary Chapel and Jim Hochberg, attorney for the plaintiffs, deferred to a representative from the Arizona-based Christian nonprofit Alliance Defending Freedom, who could not be reached Tuesday afternoon. An Alliance Defending Freedom lawyer, Kevin Theriot, is one of the attorneys representing Calvary Chapel and NIFLA.
U.S. District Court Judge Derrick Watson will preside over both cases.
Act 200 defines “limited service pregnancy centers” as entities that are not medical facilities but administer pregnancy tests and may offer services such as counseling or sonographies.
They are required to post a sign or give clients a written notice that says:
“Hawaii has public programs that provide immediate free or low-cost access to comprehensive family planning services, including, but not limited to, all FDA-approved methods of contraception and pregnancy-related services for eligible women.
“To apply online for medical insurance coverage, that will cover the full range of family planning and prenatal care services, go to mybenefits.hawaii.gov.
“Only ultrasounds performed by qualified healthcare professionals and read by licensed clinicians should be considered medically accurate.”
Limited service pregnancy centers found in violation of the law could be fined $500 for a first offense and $1,000 for a second offense. The attorney general could sue the facility if it fails to pay a fine within 30 days of notice.
Calvary Chapel and NIFLA filed a motion for a preliminary injunction, which if successful would at least temporarily prevent the state from enforcing Act 200.
The plaintiffs argue “limited service pregnancy centers” as defined in Act 200 were “clearly conceived with only pro-life centers in mind” and the legislative record for the bill shows that it was originally intended to “effectively advertise” for government-backed facilities that perform abortions.
Earlier versions of SB 501 would have required notices be posted in limited service pregnancy centers that explicitly state “abortion” services are available via state programs.
“Limited service pregnancy centers” may provide ultrasounds, sonograms, pregnancy testing and diagnosis, reproductive health counseling or prenatal care, according to Act 200.
Clinics that offer abortion aren’t required to discuss abortion alternatives to patients or disclose “the potential physical, psychological and emotional harms of abortion,” attorneys for the plaintiffs wrote in legal documents.
The complaint filed by Calvary Chapel and NIFLA contends the law “is a classic example of compelled speech in violation of the Free Speech Clause” of the First Amendment.
“Calvary Chapel, as matter of religious belief, … does not support the provision of the full range of contraceptive drugs and devices approved by the Unites States Food and Drug Administration,” the complaint says. “It would therefore violate the religious beliefs of Calvary Chapel to promote or provide artificial means of contraception.”
State attorneys defending the law in court documents pointed to a similar case NIFLA took up against a California law known as the FACT Act. It required “a nearly identical notice,” the state attorneys said, that sets a precedent warranting dismissal of the motion for preliminary injunction.
In that case, the 9th U.S. Circuit Court of Appeals found the plaintiffs weren’t likely to succeed on their claims that the law violated First Amendment rights, and the court denied their motion for a preliminary injunction.
Calvary Chapel and NIFLA said in court documents there are key differences between the California and Hawaii cases.
In the FACT Act, the plaintiffs said, both religious and abortion clinics were required to post a notice for customers. But Hawaii’s law provides an exemption for health care facilities, including abortion clinics, they said.
And California’s law required “unlicensed medical clinics,” which the plaintiffs compared to limited service pregnancy centers in Hawaii, to provide clients only with a one-sentence notice stating that the facility was not licensed by the state, according to court documents.
State attorneys held their ground, saying, “Plaintiffs simply cannot escape the effect of binding Ninth Circuit precedent.”
Planned Parenthood advocated for the passage of SB 501.
California’s licensing system outlined in the FACT Act was irrelevant to the court’s ruling, the state attorneys wrote, and the Hawaii and California legislatures stated their intent in passing legislation was to ensure women were aware of their rights and health care options.
And though attorneys for Calvary Chapel and NIFLA argued the law unfairly targets anti-abortion pregnancy centers, state attorneys said that the law also applies to Planned Parenthood facilities.
“There is nothing in the Act preventing Calvary Chapel from espousing its views and beliefs to its members, clients, or patients,” state attorneys wrote in court documents.
Laurie Field, Planned Parenthood Hawaii legislative director and public affairs manager, agreed that the organization’s facilities are required to display the notice outlined in Act 200.
Lots of testimony was received on SB 501 during the legislative session. Supporters said it would better educate women on the full range of available options and “limited service pregnancy centers,” as described in the bill, often spread misleading information.
Critics of the bill said it would violate freedom of speech and religion, and that anti-abortion pregnancy centers can share their viewpoint without taking away a woman’s right to choose.
Morgen Trube, a Hawaii Pacific University college senior and president of the campus’s Planned Parenthood Generation Action advocacy group, testified that while visiting A Place for Women in Waipio, she sat “through coercive videos and stories before they would even consider giving me a test” and was signed up without her consent for an email service that tracks the stages of a woman’s pregnancy.
“All I wanted was somebody who could help me, but instead it felt like the only thing they cared about was the baby,” she wrote. “It was never about my health, what I wanted for myself in life, or how I was feeling.”
But the hotly debated topic of abortion wasn’t the only reason Bill 501 spurred controversy.
During the session, the attorney general ruled the Senate improperly withheld testimony on the bill. Stacey Jimenez, director of operations for A Place for Women in Waipio, testified against the measure, but her testimony was not posted on the Senate website.
Jimenez denounced Trube’s testimony and included excerpts of Trube’s exit survey at the facility. Jimenez also wrote that her “religious beliefs and that of the church I serve adamantly hold that abortion is the killing of an innocent life.”
Read the state’s memorandum opposing Calvary Chapel and NIFLA’s attempt to block Act 200 here:
Read Calvary Chapel and NIFLA’s reply to the state’s memorandum here: