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From Health Reform WK-EDGE, April 2, 2019

Hawaii religious-based providers pregnancy notice dispute resolved

By Robert B. Barnett Jr., J.D.

A dispute between the State of Hawaii, which enacted a law requiring that a notice be given to pregnant women notifying them of free or low-cost care, and two religious-based entities objecting to being required to refer women to abortion services has been resolved, with the state promising not to enforce the law against them or any similar entity.

Complaints filed against the state of Hawaii by two religiously based pregnancy centers alleging that the state violated their conscience rights by enacting a law requiring that they hand out a notice, which they interpreted as offering abortion services has been resolved, according to a letter from HHS’s Office for Civil Rights (OCR) to Hawaii Attorney General Clare E. Connors. The matter was resolved to OCR’s satisfaction when, on March 15, the Hawaii Attorney General issued a memorandum promising not to enforce the law against any "limited service pregnancy center" and to advise the Hawaii legislature of the decision. The state believed that it had no other choice after a Hawaii federal court on September 20, 2018, permanently enjoined Hawaii from enforcing the law against those two entities (HHS OCR letter, March 21, 2019).

Background. On July 11, 2017, Hawaii enacted Act 200, which required in part that every limited service pregnancy center in Hawaii disseminate a written notice that (1) notified patients of the availability of free or low-cost access to comprehensive family planning services and (2) told them how to access those services online. On September 11, 2017, A Place for Women, a pro-life pregnancy center operated by the Calvary Chapel Pearl Harbor church, filed a complaint with the OCR. On January 10, 2018, Aloha, a faith-based pregnancy resource center, filed a similar complaint. Both entities alleged that the new law violated one or more of the so-called conscience amendments—the Church Amendment, the Weldon Amendment, and the Coats-Snowe Amendment—which prohibit discrimination against healthcare entities that do not offer abortion services. Although the notice required by the law never mentions abortion, to those who oppose abortion the term "comprehensive family planning services" is code for abortion. The suit was filed in Hawaii federal court seeking to enjoin the state from enforcing the law.

Injunctions. Meanwhile, the U.S. Supreme Court issued its opinion in Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361, which found an almost identical California law likely unconstitutional on First Amendment grounds. On September 14, 2018, the Hawaii federal court, relying on the Supreme Court opinion in Nat’l Inst., permanently enjoined the Hawaii Attorney General from enforcing the law against Aloha. On September 20, it did the same for A Place for Women.

Abortion. The OCR letter addressed the issue of whether the notice required by Act 200 facilitated abortion, specifically whether the notice violated the Weldon and Coats-Snowe amendments’ requirement that the pro-life entities not be required to "refer to abortions" or "make arrangements for" abortions. The OCR noted that the committee reports on Act 200 acknowledged that the aim of directing clients to public programs was to facilitate abortion. As for the reference to the online application, one of the lists of services provided included the treatment for elective abortions. The OCR also acknowledged the belief that the phrase "comprehensive reproductive health services" is a common term of art for abortion services.

Limited service pregnancy center. Hawaii never contested that A Place for Women and Aloha met the definition of a "limited service pregnancy center." The law defined them as any facility that (1) advertises or solicits patients with offer to provide prenatal sonography, pregnancy tests, or pregnancy option counseling, (2) collects health information from the patients and (3) provides family planning or pregnancy-related services.

Memorandum. On March 15, 2019, the Hawaii Attorney General essentially conceded defeat and issued its memorandum promising not to enforce the law against any limited service pregnancy center and to notify the legislature of its decision. Satisfied with this result, the OCR then issued its letter declaring the matter resolved.

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