NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 14 2016
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
A WOMAN’S FRIEND PREGNANCY No. 15-17517
RESOURCE CLINIC, a California
Religious Nonprofit Corporation; CRISIS D.C. No. 2:15-cv-02122-KJM-AC
PREGNANCY CENTER OF
NORTHERN CALIFORNIA, a California
Religious Nonprofit Corporation; MEMORANDUM*
ALTERNATIVE WOMEN’S CENTER,
Plaintiffs - Appellants,
v.
KAMALA HARRIS, Attorney General,
State of California,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Argued and Submitted June 14, 2016
San Francisco, California
Before: D.W. NELSON, TASHIMA, and OWENS, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
A Woman’s Friend Pregnancy Resource Clinic, et al. (collectively A
Woman’s Friend) appeals from the district court’s denial of their motion for a
preliminary injunction to prevent the enforcement of the California Reproductive
Freedom, Accountability, Comprehensive Care, and Transparency Act (the FACT
Act or the Act). We have jurisdiction under 28 U.S.C. § 1292(a)(1), and we
affirm.
1. The district court properly found that A Woman’s Friend cannot
demonstrate a likelihood of success on their First Amendment free speech or free
exercise claims. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
With respect to the free speech claim, the Act regulates licensed clinics’
professional speech, and is subject to intermediate scrutiny, which it survives. See
Nat’l Inst. of Family & Life Advocates (NIFLA) v. Harris, No. 16-55249, Slip op.
at 26–34 (9th. Cir. 2016). The Act’s notice that applies to unlicensed clinics
survives any level of review. See id. at 34–37. With respect to the free exercise
claim, the Act is a neutral law of general applicability, which survives rational
basis review. See id. at 37–39.
2. Because we affirm the district court’s finding that A Woman’s Friend
cannot demonstrate a likelihood of success on their First Amendment claims, thus
failing to meet the first, most important Winter factor, see Garcia v. Google, Inc.,
2
786 F.3d 733, 740 (9th Cir. 2015) (en banc), we need not parse their showing
under the remaining Winter factors.1
AFFIRMED.
1
We also conclude that A Woman’s Friend have not raised “serious
questions” going to the merits of their claims; thus, the alternate test set forth in
Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134–35 (9th Cir. 2011),
does not apply. The district court’s conclusion that there were serious questions
going to the merits was harmless error because the district court appropriately
denied the motion for a preliminary injunction.
3