Recently, the Office for Civil Rights at the US Health and Human Services determined a California law requiring pro-life pregnancy resource centers to post notices referring patients to abortion services violated federal conscience protection laws.
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.
[Federal law prohibits] 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.
What does this have to do with guns?
Another California bill, AB1525, which was signed into law in 2017 and parts went into effect at the beginning of this year, impermissibly compels licensed firearm dealers to promote the State’s preferred message regarding firearms.
The bill states in part:
A licensee shall post conspicuously within the licensed premises the following warnings in block letters not less than one inch in height:
(1) “FIREARMS MUST BE HANDLED RESPONSIBLY AND SECURELY STORED TO PREVENT ACCESS BY CHILDREN AND OTHER UNAUTHORIZED USERS. CALIFORNIA HAS STRICT LAWS PERTAINING TO FIREARMS, AND YOU MAY BE FINED OR IMPRISONED IF YOU FAIL TO COMPLY WITH THEM. VISIT THE WEB SITE OF THE CALIFORNIA ATTORNEY GENERAL AT HTTPS://OAG.CA.GOV/FIREARMS FOR INFORMATION ON FIREARM LAWS APPLICABLE TO YOU AND HOW YOU CAN COMPLY.”
(2) “IF YOU KEEP A LOADED FIREARM WITHIN ANY PREMISES UNDER YOUR CUSTODY OR CONTROL, AND A PERSON UNDER 18 YEARS OF AGE OBTAINS IT AND USES IT, RESULTING IN INJURY OR DEATH, OR CARRIES IT TO A PUBLIC PLACE, YOU MAY BE GUILTY OF A MISDEMEANOR OR A FELONY UNLESS YOU STORED THE FIREARM IN A LOCKED CONTAINER OR LOCKED THE FIREARM WITH A LOCKING DEVICE, TO KEEP IT FROM TEMPORARILY FUNCTIONING.”
(3) “CHILDREN MAY BE UNABLE TO DISTINGUISH FIREARMS FROM TOYS AND MAY OPERATE FIREARMS, CAUSING SEVERE INJURIES OR DEATH. IF YOU KEEP A PISTOL, REVOLVER, OR OTHER FIREARM CAPABLE OF BEING CONCEALED UPON THE PERSON, WITHIN ANY PREMISES UNDER YOUR CUSTODY OR CONTROL, AND A PERSON UNDER 18 YEARS OF AGE GAINS ACCESS TO THE FIREARM, AND CARRIES IT OFF-PREMISES, YOU MAY BE GUILTY OF A MISDEMEANOR, UNLESS YOU STORED THE FIREARM IN A LOCKED CONTAINER, OR LOCKED THE FIREARM WITH A LOCKING DEVICE, TO KEEP IT FROM TEMPORARILY FUNCTIONING.”
(4) “YOU MAY BE GUILTY OF A MISDEMEANOR, INCLUDING A SIGNIFICANT FINE OR IMPRISONMENT, IF YOU KEEP A FIREARM WHERE A MINOR IS LIKELY TO ACCESS IT OR IF A MINOR OBTAINS AND IMPROPERLY USES IT, OR CARRIES IT OFF OF THE PREMISES TO A SCHOOL OR SCHOOL-SPONSORED EVENT, UNLESS YOU STORED THE FIREARM IN A LOCKED CONTAINER OR LOCKED THE FIREARM WITH A LOCKING DEVICE.”
(5) “IF YOU NEGLIGENTLY STORE OR LEAVE A LOADED FIREARM WITHIN ANY PREMISES UNDER YOUR CUSTODY OR CONTROL, WHERE A PERSON UNDER 18 YEARS OF AGE IS LIKELY TO ACCESS IT, YOU MAY BE GUILTY OF A MISDEMEANOR, INCLUDING A SIGNIFICANT FINE, UNLESS YOU STORED THE FIREARM IN A LOCKED CONTAINER, OR LOCKED THE FIREARM WITH A LOCKING DEVICE.”
(6) “DISCHARGING FIREARMS IN POORLY VENTILATED AREAS, CLEANING FIREARMS, OR HANDLING AMMUNITION MAY RESULT IN EXPOSURE TO LEAD, A SUBSTANCE KNOWN TO CAUSE BIRTH DEFECTS, REPRODUCTIVE HARM, AND OTHER SERIOUS PHYSICAL INJURY. HAVE ADEQUATE VENTILATION AT ALL TIMES. WASH HANDS THOROUGHLY AFTER EXPOSURE.”
(7) “FEDERAL REGULATIONS PROVIDE THAT IF YOU DO NOT TAKE PHYSICAL POSSESSION OF THE FIREARM THAT YOU ARE ACQUIRING OWNERSHIP OF WITHIN 30 DAYS AFTER YOU COMPLETE THE INITIAL BACKGROUND CHECK PAPERWORK, THEN YOU HAVE TO GO THROUGH THE BACKGROUND CHECK PROCESS A SECOND TIME IN ORDER TO TAKE PHYSICAL POSSESSION OF THAT FIREARM.”
(8) “NO PERSON SHALL MAKE AN APPLICATION TO PURCHASE MORE THAN ONE PISTOL, REVOLVER, OR OTHER FIREARM CAPABLE OF BEING CONCEALED UPON THE PERSON WITHIN ANY 30-DAY PERIOD AND NO DELIVERY SHALL BE MADE TO ANY PERSON WHO HAS MADE AN APPLICATION TO PURCHASE MORE THAN ONE PISTOL, REVOLVER, OR OTHER FIREARM CAPABLE OF BEING CONCEALED UPON THE PERSON WITHIN ANY 30-DAY PERIOD.”
(9) “IF A FIREARM YOU OWN OR POSSESS IS LOST OR STOLEN, YOU MUST REPORT THE LOSS OR THEFT TO A LOCAL LAW ENFORCEMENT AGENCY WHERE THE LOSS OR THEFT OCCURRED WITHIN FIVE DAYS OF THE TIME YOU KNEW OR REASONABLY SHOULD HAVE KNOWN THAT THE FIREARM HAD BEEN LOST OR STOLEN.”
Is there a case to be made here? IANAL, I just found there to be similarities. And that’s a lot of wall space that’s going to be taken up that could have otherwise been used for other speech purposes such as advertising or pro-gun messaging.
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