[00:00:00] Speaker 01:
Good afternoon, counsel.

[00:00:01] Speaker 01:
We've transitioned from morning to afternoon.

[00:00:03] Speaker 02:
Yes, ma'am.

[00:00:05] Speaker 02:
And good afternoon, your honors, and may it please the court.

[00:00:08] Speaker 02:
I'm Peter Breen on behalf of Plaintiff Culture of Life, Family Services, otherwise known as Colts.

[00:00:15] Speaker 02:
And I'd like to reserve three minutes for a bottle if we can get there.

[00:00:19] Speaker 02:
Twenty-five years ago, the FDA declared that the abortifacient activity of methopristone is antagonized by progesterone, allowing for normal pregnancy and delivery.

[00:00:29] Speaker 02:
And since almost 20 years ago, pregnant women have been choosing, in consultation with their physicians, to take supplemental progesterone to counteract their in-progress abortions.

[00:00:39] Speaker 02:
And now for over a decade, Colf's, my client, has informed about and provided abortion pill reversal to women in need, including both direct medical assistance and then referrals to other outside providers.

[00:00:52] Speaker 03:
And in at least some of the cases where you provide it, you get reimbursed by insurance, right?

[00:00:56] Speaker 02:
And yes, and this was a point

[00:00:59] Speaker 02:
There is never an out-of-pocket payment by the woman.

[00:01:02] Speaker 01:
That wasn't the question.

[00:01:04] Speaker 02:
Yes, your honor.

[00:01:05] Speaker 02:
So there is an insurance.

[00:01:06] Speaker 03:
That seems like a significant difference between you and the NIFLA plaintiffs.

[00:01:13] Speaker 03:
And why isn't that classic commercial advertising?

[00:01:18] Speaker 03:
You're advertising a service for which you'll be paid not by the person you're giving to, but by a third party with whom they have a relationship.

[00:01:26] Speaker 02:
It's an odd situation.

[00:01:28] Speaker 02:
It's optional.

[00:01:29] Speaker 02:
We provide it whether you provide the insurance or whether you don't.

[00:01:32] Speaker 02:
Most of the clients are on Medi-Cal, so the insurance isn't accepted for a variety of reasons.

[00:01:37] Speaker 03:
But there's lots of, I mean, a lot of medical providers, universities, lots of entities sell goods and services and sometimes don't insist on payment.

[00:01:53] Speaker 03:
But when they're advertising the services that they sell, it's still commercial, right?

[00:01:56] Speaker 02:
Well, except you're right.

[00:01:58] Speaker 02:
Very rare that it's optional.

[00:02:00] Speaker 02:
I mean, literally optional.

[00:02:01] Speaker 02:
You don't have to provide the insurance card.

[00:02:02] Speaker 02:
You don't have to provide any payment.

[00:02:04] Speaker 02:
There's never a cost to her out of pocket.

[00:02:06] Speaker 02:
It's a matter of if she wants to put Blue Cross on the line.

[00:02:09] Speaker 02:
But otherwise, there's nothing.

[00:02:12] Speaker 02:
And we're talking about an office visit and an ultrasound.

[00:02:14] Speaker 01:
Well, then what's the point of even billing at all, then, if it's optional?

[00:02:20] Speaker 01:
It's still commercial if you're billing for the services.

[00:02:24] Speaker 02:
Well, and Your Honor, I would say as to a

[00:02:26] Speaker 02:
If I'll give you the service without whether I bill whether I don't it's just a matter it's like taking a donation for the service.

[00:02:34] Speaker 02:
It's totally optional.

[00:02:36] Speaker 01:
If you send invoices out if you apply to medical insurances for coverage that's commercial.

[00:02:43] Speaker 02:
Well if it was a regular practice I'd understand but your honor this is again we provide it for free.

[00:02:51] Speaker 02:
There's none of the other providers would do that.

[00:02:54] Speaker 01:
Overwhelming majority of the services that are provided are provided without reimbursement To folks in these pregnancy center circumstances, and this is in the record your honor their Coles has been proud to help a hundred Patients have healthy babies over the course of 13 years, so that's less than 10 Yeah, is it It's are the number of people who are treated overwhelmingly people for whom you do not bill

[00:03:24] Speaker 02:
Right.

[00:03:25] Speaker 02:
Yes, Your Honor.

[00:03:25] Speaker 02:
The folks that are treated are not.

[00:03:28] Speaker 02:
I'm just saying the numbers are small.

[00:03:29] Speaker 02:
But you don't even deal with third party?

[00:03:31] Speaker 04:
Out of those hundred, how many did you get third party reimbursement for?

[00:03:35] Speaker 02:
Minimal, Your Honor, as I understand it.

[00:03:37] Speaker 02:
Again, because most folks are on Medi-Cal.

[00:03:39] Speaker 02:
We can't take Medi-Cal for a variety of reasons.

[00:03:41] Speaker 02:
And so it's really an exception.

[00:03:47] Speaker 04:
Well, what are we supposed to do with this?

[00:03:48] Speaker 04:
I'll ask you the same question that came up last time, where you're seeking

[00:03:53] Speaker 04:
an injunction against the enforcement of against anyone, whether or not they get reimbursed.

[00:04:01] Speaker 02:
Well, and again, from our perspective, whether first off, we would say that the the overwhelming primary motivation under Eric's, which we think harmonizes first resort with the rest of the body of case law, because first resort is a bit of an outlier nationally.

[00:04:17] Speaker 02:
The other circuits have not adopted it, but it harmonized that.

[00:04:21] Speaker 02:
You can't say that our primary motivation is economic in that promotion of APR, especially when the majority.

[00:04:29] Speaker 02:
So Colf's has been able to help 100 women.

[00:04:32] Speaker 02:
So that's over the course of 13 years, less than 10 per year have healthy babies.

[00:04:36] Speaker 02:
It's helped 400 total.

[00:04:38] Speaker 02:
So that means the majority of the people they've even helped, they're not seeing at their clinic.

[00:04:42] Speaker 02:
They just say, hey, we'll help you connect you to a local provider.

[00:04:45] Speaker 02:
There's no anything there.

[00:04:48] Speaker 02:
It's just help.

[00:04:49] Speaker 02:
And so we would say that's still not a primary economic motivation under Eric's.

[00:04:53] Speaker 01:
So I'm just wondering about the economic efficiency of this.

[00:04:59] Speaker 01:
If the overwhelming number of people you get no reimbursement for, doesn't it cost you more then to bill than it's worth?

[00:05:12] Speaker 01:
And why would you do that if it isn't an economic concern?

[00:05:18] Speaker 02:
Right, and Your Honor, I believe that Coles is a full-scale medical clinic, so they've got some other patients who do prenatal care and things like that, so they would have an ability to build the insurance for those folks.

[00:05:30] Speaker 01:
So do we look at the entire spectrum of services in determining whether or not it's a commercial activity, or do we isolate this one segment of it to determine whether or not it's commercial?

[00:05:44] Speaker 02:
As I understand, Your Honor, you've got to look at the speech, and so that's

[00:05:47] Speaker 02:
to this service that they are offering.

[00:05:50] Speaker 01:
Right, but speech doesn't occur in a vacuum.

[00:05:52] Speaker 01:
Somebody speaks.

[00:05:54] Speaker 01:
And so we have to look at the entity that's speaking.

[00:05:58] Speaker 01:
And I'm asking you, when we look at that entity that's speaking, your client, are we looking at speech that's being done by a commercial entity or are we looking at speech that's being done by a non-commercial entity?

[00:06:16] Speaker 01:
How do we parse that out in terms of your client?

[00:06:20] Speaker 02:
And your honor, if the test is speech that does no more than propose a commercial transaction, I would urge that it's the speech that is related solely to this service that we're in front of the court on today.

[00:06:31] Speaker 02:
So it's the APR services.

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And those would be the very specific services that are offered by our client in this context.

[00:06:40] Speaker 02:
And I might also point out, we have a difference in our case where even if you were to find the

[00:06:46] Speaker 02:
Find that we were non that we were commercial the district court held that of the five of the seven categories of speech were engaged in They were merely they were not inherently misleading and that finding was not challenged by the Attorney General in fact It was embraced by the Attorney General on appeal so we're entitled to intermediate five of seven were Not in here as I understood that there are five of the seven that were inherently misleading in two that were potentially misleading

[00:07:14] Speaker 02:
It's actually the reverse, Your Honor.

[00:07:15] Speaker 02:
So the finding was the two that were inherently were the success rate of 64 to 68 and the statements on non-standard situations.

[00:07:27] Speaker 02:
Those are the two that were inherently.

[00:07:28] Speaker 02:
The other five were potentially.

[00:07:32] Speaker 02:
So reverse reversal, potential, safe and effective.

[00:07:37] Speaker 01:
But I thought you made a different representation.

[00:07:39] Speaker 01:
I thought you said that they were, oh, you would make a distinction between potentially

[00:07:44] Speaker 02:
And of course, we believe they're all true.

[00:07:46] Speaker 02:
But at the same time, when you've got this test where if something is potentially misleading, which is not a great way of framing your statements, but if it's only that, you get intermediate scrutiny.

[00:07:56] Speaker 02:
So you're treated the same as a true statement under a commercial speech analysis.

[00:08:01] Speaker 04:
What do we do, given your organization's operational model,

[00:08:10] Speaker 04:
In terms of drawing a line, I'm not suggesting that the record suggests that your organization does this, but you can imagine other nonprofits or businesses that would have lost leaders, or they have, again, completely outside of the context of medical care, giveaways to bring people in.

[00:08:29] Speaker 04:
And I'm just thinking about our rule rather than the application in this case.

[00:08:33] Speaker 04:
Giveaways to bring people in, and they

[00:08:37] Speaker 04:
Say false or misleading things about the thing they're giving away.

[00:08:41] Speaker 04:
But but then they make the relationship and contact and are able to do other sorts of business there.

[00:08:46] Speaker 04:
How would we draw that line in general?

[00:08:48] Speaker 02:
Sure.

[00:08:49] Speaker 02:
And I, your honor, I think the primary economic motivation test from Eric's gives you what you need.

[00:08:54] Speaker 04:
But do we look at it retail or wholesale?

[00:08:56] Speaker 04:
Because they may not have a primary.

[00:08:57] Speaker 04:
And this is, I understand at least part of the logic of first resort is the you may not have

[00:09:03] Speaker 04:
The economic, it may not be profitable in the instant to give away one product.

[00:09:09] Speaker 04:
You lose money, it's a loss later.

[00:09:11] Speaker 04:
But with respect and you might, right, so your advertisers, but that's not commercial speech because we're giving that away.

[00:09:19] Speaker 04:
But it's part of a broader organization that is generally involved in the provision of similar products that does keep it as a going concern, even as a nonprofit, right?

[00:09:30] Speaker 04:
It doesn't have to be profitable, it simply has to keep the lights on.

[00:09:33] Speaker 02:
And, Your Honor, there's not evidence of that in this record.

[00:09:36] Speaker 02:
Sure.

[00:09:36] Speaker 02:
So that would be something.

[00:09:37] Speaker 04:
In terms of how we draw this line, where we're saying primary or not.

[00:09:40] Speaker 02:
Well, and again, Your Honor, loss leaders and that sort of thing are certainly standard.

[00:09:47] Speaker 02:
That would be standard in a commercial speech analysis, I would think.

[00:09:50] Speaker 02:
But again, to me, that primary economic motivation, if you're literally just giving things away.

[00:09:58] Speaker 02:
And in this case, you're bar making there's no real profit on the thing.

[00:10:02] Speaker 02:
You're giving it away.

[00:10:03] Speaker 02:
You'll take the money.

[00:10:04] Speaker 02:
You'll not as a donation.

[00:10:06] Speaker 02:
You don't have that.

[00:10:08] Speaker 02:
It's just we're outside that test.

[00:10:09] Speaker 02:
So again, I think primary economic motivation can remain as your test.

[00:10:13] Speaker 02:
And you analyze the facts, as we've seen in the case law.

[00:10:16] Speaker 04:
I'm sorry.

[00:10:18] Speaker 04:
I'm sorry.

[00:10:18] Speaker 04:
But the next question was, so a business, a for-profit business that gives something away but is otherwise

[00:10:26] Speaker 04:
Making money, I mean the true loss later.

[00:10:27] Speaker 04:
Are you saying that that falls on the side of?

[00:10:31] Speaker 02:
Well look commercial speech that that they that they would be that they're misleading or untruthful advertising would be unprotected well as to that loss later, so if I if I go in on on Black Friday to get my $200 TV at Walmart Yes, I mean that is but if no money change They're just giving stuff away to get people in right but to get you into the store to buy things and so that that certainly I think would be commercial So what's our standard of review?

[00:10:56] Speaker 01:
on the district court's determination whether something was commercial speech or non-commercial speech.

[00:11:01] Speaker 01:
What's our standard review?

[00:11:03] Speaker 02:
I agree with my colleague.

[00:11:04] Speaker 02:
That one has got to be de novo when it goes to the facts that are part of your First Amendment analysis, because we're entitled to an independent examination.

[00:11:12] Speaker 02:
You take a fresh look without deference.

[00:11:13] Speaker 01:
But what case are you relying upon to say that it's a de novo determination, whether or not speech is commercial or not?

[00:11:20] Speaker 02:
I believe that was, it was, this goes back to,

[00:11:24] Speaker 02:
to Hurley in terms of the fresh look.

[00:11:27] Speaker 01:
So Hurley is your best case for the proposition that when we review the district court's determination of whether or not speech is commercial, it's de novo?

[00:11:36] Speaker 01:
Is the Hurley case what you cite for that proposition?

[00:11:38] Speaker 02:
And Your Honor, I respectfully, I believe my colleague had cited IMDB.

[00:11:43] Speaker 02:
It's one of those that we really hadn't briefed carefully.

[00:11:48] Speaker 02:
Thank you.

[00:11:48] Speaker 02:
Thank you, Your Honor.

[00:11:50] Speaker 02:
As well, Your Honor,

[00:11:51] Speaker 02:
would point out we've really argued hard on ONY so that the fact that our district court credited our experts, found them reliable, weighed the studies, found that at least the majority of the categories of speech were not inherently misleading, under ONY the court should have recognized the scientific debate, said I don't have a place here to crush that scientific debate and allowed it to proceed.

[00:12:18] Speaker 02:
Another case that the AG cited that would have a similar thought was the Pearson case from Judge Silberman in the D.C.

[00:12:26] Speaker 02:
Circuit.

[00:12:28] Speaker 02:
In that case, he held for the court that you do not prohibit the speech.

[00:12:35] Speaker 02:
They could do disclaimers and things like that, but that is not something that prohibition is correct for.

[00:12:42] Speaker 02:
We'd also cited Sorrell and Coronia on this idea that the marketplace of ideas has to be sustained

[00:12:48] Speaker 02:
And that you, especially when the underlying method is legal, the underlying product, service, et cetera, is legal, you do not ban the speech on it.

[00:12:57] Speaker 02:
And they quoted Thompson as well for that premise, which is speech is the last thing you regulate, not the first.

[00:13:03] Speaker 02:
And here the AG's made a big, big deal out of the fact everything's allowed, everything's allowed.

[00:13:07] Speaker 02:
You can speak as a doctor to the patient in the clinic.

[00:13:10] Speaker 02:
Colf's staff can speak these words, all of them, to their patients in the clinic, but can't say it to the patients on the website.

[00:13:18] Speaker 02:
And again, so we we've got to and we've made a variety of other arguments on free exercise And in terms of the disparate treatment of our clients, but I do want to leave some time for rebuttal I don't want to cut into your rebuttal, but I'm sure we'll give you some time if you need it, but On the free exercise.

[00:13:37] Speaker 03:
What is the comparable?

[00:13:39] Speaker 03:
secular activity that's not being regulated so I

[00:13:43] Speaker 02:
On the face of the statute, you've got government health care providers can make the exact same statements as we can, as we're prohibited from doing.

[00:13:51] Speaker 02:
You've also seen with the attorney general, Planned Parenthood can make statements about APR and MIFA-Pristone.

[00:13:57] Speaker 02:
And we believe we've shown that those are false statements, especially they had said that there were no studies at all on it.

[00:14:04] Speaker 02:
That's false, even looking at it from our district courts holding.

[00:14:07] Speaker 03:
Taking the first one of those, usually when we're looking at

[00:14:12] Speaker 03:
comparable activities that are unregulated, we think of the government regulating the private sector, not itself.

[00:14:20] Speaker 03:
So why is government speech an appropriate comparator at all?

[00:14:24] Speaker 02:
Well, and we had cited to the court the PETA versus California Milk Board, where the California Milk Board apparently was communicating deceptively about the state of dairy, and this is a commercial transaction, in the state of California.

[00:14:37] Speaker 02:
There's nothing stopping a government health care entity from making

[00:14:41] Speaker 02:
same statements as ours and not being regulated or making opposing statements to ours not being regulated.

[00:14:47] Speaker 02:
So that's on the face of the statute.

[00:14:49] Speaker 02:
Again, and we've cited numerous instances where Planned Parenthood was allowed to make the statements and obviously we've shown other evidence of animus on the part of the Attorney General here, all of it coming after the Dobbs decision.

[00:15:01] Speaker 02:
So again, we were operating for a decade, no issues.

[00:15:07] Speaker 02:
What happens?

[00:15:07] Speaker 02:
Dobbs happens, you get a reproductive justice unit, a task force, a website, a consumer alert, a hotline, complaints.

[00:15:15] Speaker 02:
You know, they wanted to solicit complaints.

[00:15:17] Speaker 02:
They couldn't get any complaints.

[00:15:18] Speaker 02:
There was a talk of consumer protection, and yet the consumers don't need to be protected.

[00:15:24] Speaker 02:
There's no evidence of harm anywhere on this record.

[00:15:26] Speaker 01:
So thank you.

[00:15:35] Speaker 00:
Good afternoon, Your Honor.

[00:15:37] Speaker 00:
May it please the court?

[00:15:38] Speaker 00:
I'm back.

[00:15:43] Speaker 00:
Your Honor, this is a very easy case.

[00:15:47] Speaker 00:
Colf's advertises abortion pill reversal.

[00:15:51] Speaker 00:
It provides abortion pill reversal.

[00:15:53] Speaker 00:
It accepts payments for abortion pill reversal.

[00:15:56] Speaker 00:
And yet, it has asked the federal district court to exempt it

[00:16:00] Speaker 00:
through an injunction against the Attorney General from any enforcement by our office of the consumer protection laws, the UCL and the FAL.

[00:16:10] Speaker 00:
Here, the district court properly held that the speech that they employ is commercial speech.

[00:16:19] Speaker 00:
And I would draw your attention

[00:16:23] Speaker 00:
to 5ER836.

[00:16:24] Speaker 00:
There is the webpage saying, do you regret your decision and wish to reverse the effects of the abortion pill?

[00:16:36] Speaker 00:
We are here to help you.

[00:16:38] Speaker 00:
There is an effective process for reversing the abortion pill.

[00:16:41] Speaker 00:
Regret taking the abortion pill?

[00:16:43] Speaker 00:
Please call now with their phone number.

[00:16:48] Speaker 00:
They put in their FAQs that

[00:16:52] Speaker 00:
They will accept payment and for only for individuals who cannot pay they will help with financial need or they will help with some financial aid Excuse me and their counsel admitted both here and at the district court that they do accept payments for this service This is quintessential commercial speech

[00:17:15] Speaker 00:
And as the district court correctly, in our position, all of the speech is inherently misleading.

[00:17:23] Speaker 00:
Nevertheless, the district court, we don't think was erroneous in finding that they were, for five of the statements, it was at least potentially misleading.

[00:17:32] Speaker 04:
But doesn't that bring us back to this problem that there wasn't presented in the district court the state's interests?

[00:17:43] Speaker 04:
You found a case where we've been able to leap ahead of the government itself in asserting its own interests in a heightened scrutiny case Your honor though.

[00:17:53] Speaker 00:
I think this is I don't think this is requires specific factual development This is this court has already held did you argue?

[00:18:01] Speaker 04:
in the district court that Central Hudson in the alternative that if it's potentially misleading that central Hudson was satisfied and

[00:18:09] Speaker 00:
We did not argue that.

[00:18:11] Speaker 00:
But I will say that this court can affirm on any grounds that the district court found and that the district court held.

[00:18:16] Speaker 00:
And the district court held that we had a substantial government interest, which is supported by this circuit, by this court's holdings in American Academy, and also could properly look at the evidence, which was our enforcement action, and determine that it was narrowly tailored.

[00:18:36] Speaker 00:
We go after eight specific statements

[00:18:39] Speaker 04:
Those statements we have provided evidence to the district court that those statements are false and misleading So those the eight specific statements are in the enforcement action or in this This has seven statements.

[00:18:51] Speaker 04:
Are you talking about the the?

[00:18:53] Speaker 00:
Sorry, Your Honor.

[00:18:55] Speaker 00:
We classify the enforcement, there's the non-standard situations, which is really about whether the APR works after 72 hours and separately whether it works after the administration of misoprostol and methotrexate.

[00:19:12] Speaker 00:
In our enforcement action, we separate those.

[00:19:14] Speaker 00:
That's the way we get to eight.

[00:19:16] Speaker 00:
In this action, COLFS has combined them into non-standard situations.

[00:19:22] Speaker 03:
So is it your view that the enforcement action is in the record?

[00:19:27] Speaker 03:
Yes, and Is it your view that that contains the requisite articulation of the state's interest?

[00:19:35] Speaker 03:
Such that even though you didn't present it to the district court.

[00:19:39] Speaker 03:
It's there and the record is that the argument?

[00:19:42] Speaker 00:
Yes, Your Honor.

[00:19:43] Speaker 00:
I mean, I would say first that the substantial government interest in protecting individuals from misleading commercial speech about medical treatments is a legal holding that this Court has already determined in American Academy.

[00:19:54] Speaker 00:
Our enforcement action reflects that we are going after different parties for their use of those false and misleading statements in advertisements for a medical treatment.

[00:20:05] Speaker 00:
enforcement action is also the example of the narrowly tailored it is the government regulation at issue here and therefore That it reflects that it is it is narrowly tailored under the intense if we ever done that I mean so to to borrow from another case, it's Tighten scrutiny analysis in general, but in this case under central central Hudson to say that well These are clearly

[00:20:35] Speaker 04:
highly important issues with people's, you know, health and perhaps lives at stake, but is that something we can do to look and say, well, in general, the tailoring and the interest should be sufficient under federal hunts?

[00:20:49] Speaker 04:
And do you think of us a case for being able to do that?

[00:20:53] Speaker 00:
Your honor, I don't have a case off the top of my head on that particular issue.

[00:20:56] Speaker 00:
What I note, though, is as Judge Miller pointed out, we think our complaint is the evidence in the record to the extent that the court believes that

[00:21:05] Speaker 00:
American Academy's determination that the protection of consumers from misleading information in the medical statement is insufficient.

[00:21:20] Speaker 00:
Our enforcement action complaint is evidence showing what it is that we're trying to pursue and how we're doing it.

[00:21:28] Speaker 00:
On that basis, the district court was within its purview to hold that we satisfied intermediate scrutiny.

[00:21:35] Speaker 00:
I'd also just like to make a quick comment about the free, well, I want to make two quick comments.

[00:21:42] Speaker 00:
We talked about ERIKS earlier, so I don't want to do a lot more talking about it, but I do think there's this sort of mischaracterization of ERIKS that it suggests that somehow

[00:21:50] Speaker 00:
primary economic motivation is the be-all end-all of the Bolger test.

[00:21:55] Speaker 00:
In ERIX, the reason that the court looked at primary economic motivation was because the other two Bolger factors were not very clear.

[00:22:03] Speaker 00:
There was a nutritional supplement guide, so it wasn't a standard advertisement.

[00:22:08] Speaker 00:
And so that's the first Bolger.

[00:22:10] Speaker 00:
The second is that it wasn't necessarily advertising a specific product.

[00:22:15] Speaker 00:
That's why it turned to the economic factor issue.

[00:22:19] Speaker 00:
Here, we don't have that situation.

[00:22:21] Speaker 00:
What we have is an advertisement.

[00:22:24] Speaker 00:
Regret taking the abortion pill, please call now.

[00:22:27] Speaker 00:
It may not be too late if you contact us immediately.

[00:22:30] Speaker 00:
And we have it for a specific product, a specific service, really, is abortion pill reversal.

[00:22:35] Speaker 00:
And in this case, there is economic motivation.

[00:22:39] Speaker 00:
I will also note they fundraise off using their APR patients.

[00:22:45] Speaker 00:
And so that provides even additional evidence, which First Resort held was sufficient economic motivation for commercial.

[00:22:52] Speaker 04:
I can't recall which case it was, so excuse me if I'm asking about the last case.

[00:22:57] Speaker 04:
But wasn't there some dispute about whether that had been established?

[00:23:02] Speaker 00:
Not in Colts, Your Honor.

[00:23:04] Speaker 00:
In Colts, they put in evidence saying that they use stories about their patients in their fundraising galas.

[00:23:10] Speaker 00:
They provided three different galas.

[00:23:12] Speaker 00:
They provided transcripts of those videos.

[00:23:15] Speaker 00:
They also have a webpage that provides a story.

[00:23:18] Speaker 00:
This was their evidence that provides a story of a woman who had received APR with several buttons that say donate today, help women like Stacey.

[00:23:27] Speaker 04:
So do we, do we have a case where, um, I understand the Bolger is factors, um, not, not elements.

[00:23:40] Speaker 04:
But where a case is stood without economic motive if we just assume if we take the economic motive out of it what's a case we should look at to find a finding of commercial speech on the first two factors.

[00:23:53] Speaker 00:
So.

[00:23:57] Speaker 00:
I acknowledge that in First Resort, there was economic motivation, but they also held that even without economic motivation, there could still be a finding of commercial speech.

[00:24:06] Speaker 00:
They based that on Greater Baltimore, a Fourth Circuit case, also noting that economic motivation is not necessary for commercial speech, in which the en banc Fourth Circuit remanded back to the district court in order to determine whether summary judgment was appropriate.

[00:24:20] Speaker 00:
I will also point to the Fargo.

[00:24:22] Speaker 04:
If it's elements or if it's factors, not elements, is that a holding?

[00:24:26] Speaker 04:
the economic motive or the fact that economic motive was unnecessary in First Resort?

[00:24:35] Speaker 00:
Your Honor, I think it's an interesting question.

[00:24:38] Speaker 00:
I think in this situation where ultimately what First Resort said was that where the government regulates advertisements for commercially valuable

[00:24:54] Speaker 00:
Services it's regulating pure commercial speech I think that holding encompasses within it this idea that economic motivation is not required But you're right.

[00:25:05] Speaker 00:
It's not a specific holding necessarily.

[00:25:08] Speaker 04:
It's all of a piece Do we have a case that any I mean I'm trying to I've been looking for a case like this, too Is there one that just comes out and says you don't need the economic motive to satisfy vulture?

[00:25:20] Speaker 04:
I?

[00:25:21] Speaker 00:
I mean, I would say, Your Honor, that Stolfel in its footnotes suggests this as well.

[00:25:27] Speaker 00:
It says that often in the compelled speech context, and compelled speech, the analysis about what the government can require in compelled speech is a different analysis than when it's restricting false and misleading speech.

[00:25:39] Speaker 00:
But the inquiry about whether the speech is commercial or not really should be the same.

[00:25:44] Speaker 00:
It's still a fact-intensive inquiry.

[00:25:46] Speaker 00:
In Stolfel, this court pointed out

[00:25:50] Speaker 00:
that often speech is required that has no economic motivation.

[00:25:54] Speaker 00:
And in fact, often in the compelled speech context, bulger isn't even referred to at all.

[00:25:58] Speaker 00:
So I also do want to make sure I quickly address the free exercise point.

[00:26:11] Speaker 00:
In our, as we argued, exemptions for government entities under the UCL is just not a comparable secular entity.

[00:26:20] Speaker 00:
The government stands in a completely different relationship to the people, the residents of California.

[00:26:27] Speaker 00:
There are different accountability measures, there are different requirements.

[00:26:30] Speaker 00:
I'll also note, this court pointed out, in sort of rejecting a very similar argument in Foothill Christian Academy regarding

[00:26:41] Speaker 00:
a similar argument about an exemption for public recreation programs and noted that that exemption made sense because the government itself had more control over those programs.

[00:26:52] Speaker 00:
That's the similar situation here.

[00:26:54] Speaker 00:
So that is not a comparable secular entity, nor is Planned Parenthood.

[00:27:01] Speaker 00:
So the statement that they point to about APR is that APR has never been tested for safety or effectiveness or side effects.

[00:27:12] Speaker 00:
Your Honor, that's true.

[00:27:14] Speaker 00:
All of the studies that are put forward don't actually test.

[00:27:17] Speaker 00:
Even the author of the major study at issue here in Dr. Delgado, who is Colf's medical director, has admitted in two federal district court cases that his study cannot show causation.

[00:27:32] Speaker 00:
It cannot show that APR works, that it causes the outcome that he proposes, that he says that it does.

[00:27:43] Speaker 00:
I'll also note, you know, my friend on the other side said, well, all of this happened after Dobbs, but you know what else happened in that time period is three federal district courts on preliminary injunction hearings found that statements that abortion, poor reversal was effective, that it was safe and that it reversed three federal district courts found that those statements were false and misleading.

[00:28:09] Speaker 00:
That also triggers for the attorney general a duty to see whether other entities are using that kind of false and misleading statements in their commercial speech.

[00:28:22] Speaker 00:
We have not prosecuted Coles, but we did prosecute RealOptions and Heartbeat International.

[00:28:28] Speaker 00:
I will also note this came up in the NIFLIC context, but I do want to make sure it's clear.

[00:28:33] Speaker 00:
Our trial has been moved from November to February 23rd, 2026.

[00:28:38] Speaker 00:
What was the last thing you said?

[00:28:40] Speaker 00:
It was our trial was moved from November to February 23rd, 2026.

[00:28:44] Speaker 00:
It's still within just a few months.

[00:28:48] Speaker 00:
We are.

[00:28:48] Speaker 00:
We are in it right now as far as discovery summary judgment motions, all the same.

[00:28:55] Speaker 03:
Can I ask you just sort of going back to the commercial?

[00:28:58] Speaker 00:
Yes, please.

[00:28:58] Speaker 03:
The speech question.

[00:28:59] Speaker 03:
It seems like part of your.

[00:29:04] Speaker 03:
This isn't the formal doctrinal argument, but I think sort of part of the

[00:29:08] Speaker 03:
Force of your position seems to come from the idea that They're participating in a market where other people participate commercially even if they themselves are are not charging for it is that And that there is some intuitive appeal to that idea, but is there a case that says that that is relevant and

[00:29:35] Speaker 00:
Your Honour, I mean First Resort and Fargo, the case that it relied on, both say that particular issue.

[00:29:43] Speaker 00:
And I think what First Resort points out, relying on the North Dakota case, is that when you are participating in the marketplace for services, not the marketplace of ideas,

[00:29:57] Speaker 00:
It's appropriate to consider your speech commercial.

[00:30:00] Speaker 00:
Now, there is, I think this happened in the other argument, so I apologize if I'm conflating the two, but there is this issue about whether there's competition and that abortion pill reversal is rare, which we agree with.

[00:30:16] Speaker 00:
But the competition here is not, is about where a person goes if they have those feelings of regret

[00:30:26] Speaker 00:
do they go back to their medical provider or do they go to Coles or to any of the other entities?

[00:30:34] Speaker 00:
That's the competition here.

[00:30:40] Speaker 00:
I believe in this case, there's a declaration from Ms.

[00:30:44] Speaker 00:
Cynthia Michelle, and hers is different because she actually did not see it from a website.

[00:30:50] Speaker 00:
But there's, never mind, scratch that.

[00:30:52] Speaker 00:
I'm confusing the evidence from the other case with the evidence from this case, and I apologize.

[00:30:58] Speaker 00:
With that, my time is nearly up, so I'm happy to answer any other questions.

[00:31:02] Speaker 01:
Otherwise, I'll... It appears there are no additional questions.

[00:31:04] Speaker 01:
Thank you, counsel.

[00:31:05] Speaker 00:
Thank you very much.

[00:31:12] Speaker 01:
Let's put two minutes for rebuttal, please.

[00:31:16] Speaker 02:
Thank you, Your Honor.

[00:31:18] Speaker 02:
And to respond to a few notes, the FAQ was brought up previously.

[00:31:24] Speaker 02:
I'd like to point out that the district court in the motion to dismiss order, so that was in the motion to dismiss order, it actually found that the FAQ was informative.

[00:31:33] Speaker 02:
And of course, that sort of test shows that it is at the very least intertwined, non-commercial and commercial speech, which we

[00:31:41] Speaker 02:
know is noncommercial.

[00:31:44] Speaker 02:
And that didn't carry over to the PI ruling.

[00:31:47] Speaker 02:
In fact, it was not addressed or carried over.

[00:31:49] Speaker 02:
We believe we're entitled to a benefit there.

[00:31:52] Speaker 02:
We would recommend to the court the Riley case, which of course held that solicitations are noncommercial, per se, and those successful solicitations lead to more charitable work.

[00:32:03] Speaker 02:
So to hold that against us, that we're using the successes.

[00:32:08] Speaker 03:
That's a solicitation in the sense of like, please give money to our organization for charitable purposes, right?

[00:32:13] Speaker 02:
And that's actually money coming in, and it's non-commercial.

[00:32:16] Speaker 02:
Right, but it's not, please use the service that we're providing, which seems to... They didn't give us money.

[00:32:21] Speaker 02:
Right, but you see, but that's a different... They're not asking... Well, if anyone can give, obviously, but they're not soliciting money direct out of pocket from the

[00:32:33] Speaker 02:
a handful of people that are getting the APR services.

[00:32:35] Speaker 02:
That's not the point there.

[00:32:37] Speaker 02:
We would just note that that, again, from Riley, in terms of the safety and effectiveness, we just, there is no evidence on the record that anyone's been harmed.

[00:32:48] Speaker 02:
And we're almost 20 years into this.

[00:32:50] Speaker 02:
Over 10 years at Coles, again, 400 babies born across, generally, that we're able to assist.

[00:32:57] Speaker 02:
And so there is no consumer protection here.

[00:32:59] Speaker 02:
There's no consumer to be protected.

[00:33:00] Speaker 02:
Women have been choosing this

[00:33:02] Speaker 02:
The problem is, are they going to know that they even have the option?

[00:33:04] Speaker 02:
We, in our record, had Dr. Delgado tell the story of a patient who said she called Planned Parenthood.

[00:33:09] Speaker 02:
They said, your baby's already dead.

[00:33:10] Speaker 02:
There's nothing you can do.

[00:33:12] Speaker 02:
That woman had a baby.

[00:33:14] Speaker 02:
So that's the marketplace here.

[00:33:15] Speaker 02:
When you look at Sorel and NIFLA, they talk about that it's more important that we express ourselves in these medical areas.

[00:33:21] Speaker 01:
But that's the merits of the case.

[00:33:23] Speaker 01:
We're here on the injunction piece.

[00:33:25] Speaker 02:
But it goes to the injunction, Your Honor.

[00:33:26] Speaker 02:
I respectfully submit.

[00:33:28] Speaker 02:
I think it all goes together, because in the medical field especially, you're dealing with life-saving information.

[00:33:35] Speaker 02:
And it's all information here.

[00:33:37] Speaker 01:
Well, that begs the question, because we have to look at whether it's misleading.

[00:33:41] Speaker 01:
That's the point we're trying to figure out.

[00:33:46] Speaker 02:
And, Your Honor, that Pearson case, again, it was cited by the Attorney General.

[00:33:49] Speaker 02:
They had a really good analysis dealing with a supplement manufacturer, made some claims about their supplement.

[00:33:55] Speaker 02:
And on three of them, the court said, well, the issues are up in the air.

[00:33:58] Speaker 02:
The government can't prohibit the speech unless their studies are well ahead of the manufacturer.

[00:34:03] Speaker 02:
The fourth one, they said, well, studies don't even, we're not even sure if the studies say what you've said is correct.

[00:34:09] Speaker 02:
The court said, look, let them say it.

[00:34:11] Speaker 02:
You can put on a disclaimer, but let them say it.

[00:34:13] Speaker 02:
You can't prohibit that speech.

[00:34:15] Speaker 01:
And so we would urge that.

[00:34:15] Speaker 02:
We understand your argument.

[00:34:16] Speaker 01:
Thank you, Your Honor.

[00:34:17] Speaker 01:
Thank you, counsel.

[00:34:17] Speaker 01:
Thank you to both counsel.

[00:34:19] Speaker 01:
The case just argued is submitted for decision by the court.

[00:34:22] Speaker 01:
We are in recess until 930 a.m.

[00:34:24] Speaker 01:
tomorrow morning.

[00:34:27] Speaker 01:
All rise.