Response to the Buffer Zone Ruling

Update, July 30, 2014: The Governor has signed the final version of this bill. It is now law. The only changes from the Senate language below were reductions in the penalty amounts.

On July 16, the Senate gave initial approval to a bill to protect access to reproductive health clinics in the wake the Supreme Court’s decision in McCullen v. Coakley. As Senate Chair of the Judiciary Committee, I was pleased to play a role in swiftly moving the proposal forward.

The proposal was filed by Senator Harriet Chandler, who was the Senate sponsor of the original buffer zone bill. The proposal had been jointly developed by the Governor, the Attorney General and Planned Parenthood and had been heavily vetted by legislative counsel for constitutionality. It protects women seeking health care and it also protects free speech.

Our vote followed a long day of testimony before the Judiciary Committee. Our hearing proceeded in three parts. At 10AM, we convened and heard general testimony about the issue. At 3PM, after a brief recess, we continued to a second hearing, which commenced more than the required 48 hours after notice and also followed our actual receipt of the proposed legislation as a committee. The Senate President and the Governor both appeared at 3PM to express support for swift action on the bill. At a little after 4PM, after all testimony had been heard, the committee convened in a public executive session and voted 11-3 to move the bill to the Senate floor.

In the course of the day, we heard from both parties to the Supreme Court’s decision — Eleanor McCullen and Attorney General Martha Coakley — and from dozens of others. Law enforcement officials talked about the challenges of maintaining order near the entrances to reproductive health clinics. Public Safety Secretary Andrea Cabral recounted an incident going back 20 years to when anti-abortion activists sought to completely blockade clinics. Activists rolled a van in front of a clinic and put it up on blocks. They had cut out the bottom of the van and, once it was in place, they sat on the sidewalk and welded themselves to the van, using bike locks around their necks. Clinic workers and patients told many more recent stories of unpleasant, frightening, in-your-face hectoring by activists.

Pro-life witnesses told a different story. They spoke of approaching women politely on the sidewalks near abortion clinics and asking if they could help. They acknowledged that, in most instances, women did not wish to speak with them, but they said that, in some instances, they were able to offer alternatives to abortion — to help women see their way to taking care of a child. One witness said she had been dissuaded from an abortion by a “sidewalk counselor” and brought a picture of the beautiful five-year-old she was grateful to be the mother of.

All of the witnesses who spoke were more or less credible and the six hours of testimony established clearly that there is a wide range of conduct among anti-abortion activists, some of which is absolutely illegal and some of which is absolutely legal.

The legal advocacy activities include speech which may be unwelcome. Although much of the testimony from both sides related to the character of the speech by activists — pleasant or unpleasant, helpful or demeaning — the content of the speech and whether it is welcome or not are largely irrelevant under the first amendment. As the Supreme Court explained in Senate 2281 in the wake the Supreme Court’s decision in McCullen at page 9:

It is no accident that public streets and sidewalks have developed as venues for the exchange of ideas. Even today, they remain one of the few places where a speaker can be confident that he is not simply preaching to the choir. With respect to other means of communication, an individual confronted with an uncomfortable message can always turn the page, change the channel, or leave the Web site. Not so on public streets and sidewalks. There, a listener often encounters speech he might otherwise tune out. In light of the First Amendment’s purpose “to pre­serve an uninhibited marketplace of ideas in which truth will ultimately prevail,” FCC v. League of Women Voters of Cal. , 468 U. S. 364, 377 (1984) (internal quotation marks omitted), this aspect of traditional public fora is a virtue, not a vice.

The question that the police must answer on the street in making enforcement decisions is whether the activists are actually impeding access to the clinic or are crossing the line into intimidation by placing people in reasonable fear of harm. The bill that we approved gives law enforcement additional tools to discourage the behavior that is unlawful.

The provisions of the bill are as follows:

Section 1 of the bill expands the Attorney General’s powers in civil rights lawsuits, enabling her to seek damages, penalties and attorneys fees as well injunctive relief. This expansion is general — it applies to all civil rights lawsuits brought by the AG. The main change is the availability of civil penalties — private plaintiffs seeking to enforce civil rights already have the ability to collect damages and costs.

SECTION 1. Section 11H of chapter 12 of the General Laws, as appearing in the 2012 Official Edition, is hereby amended by adding the following paragraph:-
If the attorney general prevails in an action under this section, the attorney general shall be entitled to: (i) an award of compensatory damages for any aggrieved person or entity; and (ii) litigation costs and reasonable attorneys’ fees in an amount to be determined by the court. In a matter involving the interference or attempted interference with any right protected by the constitution of the United States or of the commonwealth, the court may also award civil penalties against each defendant in an amount not exceeding $5,000 for each violation.

Section 2 of the bill rewrites the buffer zone statute with language that focuses entirely on preventing intimidation and preserving access. The old buffer zone, which the Supreme Court disapproved, prevented activists from getting close to patients approaching clinic, forcing them to yell at them from a distance. Under the new approach, activists will be able to get near to patients to speak with them, but must not intimidate them or prevent their access to the clinic.

The new language gives law enforcement three tools to protect prevent intimidation and preserve access.

First, it gives police officers explicit power to order the withdrawal of individuals who are impeding access to a clinic. Individuals so ordered will have to stay 25 feet back from the entrance for the rest of the day and can be charged and arrested if they fail to follow the order.

On the floor of the Senate, we amended the withdrawal language to make clear that it applies to individuals who are blocking the entrance, not to a group, which might include other activists whose behavior is lawful. The language below reflects the amendment.

SECTION 2. Chapter 266 of the General Laws is hereby amended by striking out section 120E½, as so appearing, and inserting in place thereof the following section:-

Section 120E½. (a) As used in this section, the following words shall have the following meanings unless the context clearly requires otherwise:

“Driveway”, an entry from a public street to a public or private parking area used by a reproductive health care facility.

“Entrance”, a door to a reproductive health care facility that directly abuts the public sidewalk; provided, however, that if the door does not directly abut the public sidewalk, the “entrance” shall be the point at which the public sidewalk intersects with a pathway leading to the door.

“Impede”, to obstruct, block, detain or render passage impossible, unsafe or unreasonably difficult.

“Law enforcement official”, a duly authorized member of a law enforcement agency, including a member of a municipal, metropolitan or state police department, sheriffs or deputy sheriffs.

“Reproductive health care facility”, a place, other than within or upon the grounds of a hospital, where abortions are offered or performed including, but not limited to, the building, grounds and driveway of the facility and a parking lot in which the facility has an ownership or leasehold interest.

(b) A law enforcement official may order the immediate withdrawal of 1 or more individuals who have on that day substantially impeded access to or departure from an entrance or a driveway to a reproductive health care facility. A withdrawal order issued pursuant to this section shall be in writing and shall include the following statements: (i) the individual or individuals have substantially impeded access to or departure from the reproductive health care facility; (ii) the individual or individuals so ordered shall, under the penalty of arrest and prosecution, immediately withdraw and cease to stand or be located within at least 25 feet of an entrance or a driveway to the reproductive health care facility; and (iii) the order shall remain in place for 8 hours or until the close of business of the reproductive health facility, whichever is earlier. This subsection shall apply during the business hours of a reproductive health care facility. This subsection shall also apply only if the 25-foot boundary is clearly marked and subsections (a) through (c), inclusive, of this section are posted outside of the reproductive health care facility.

(c) A person who fails to comply with a withdrawal order pursuant to subsection (b) shall be punished, for the first offense, by a fine of not more than $500 or not more than 3 months in a jail or house of correction or by both such fine and imprisonment and, for each subsequent offense, by a fine of not less than $500 nor more than $5,000 or not more than 2½ years in a jail or house of correction order by both such fine and imprisonment.

(h) A person who fails to comply with a withdrawal order pursuant to said subsection (b) or who violates subsections (c), (d), (e), (f) or (g) may be arrested without a warrant by a law enforcement official. [this section presented here out of order]

Second, the bill strengthens existing criminal sanctions against physical acts and threats. The bill strengthens existing law criminalizing intimidation — meaning placing a person in reasonable apprehension of bodily harm:

(d) A person who, by force, physical act or threat of force, intentionally injures or intimidates or attempts to injure or intimidate a person who attempts to access or depart from a reproductive health care facility shall be punished, for the first offense, by a fine of not more than $2,000 or not more than 1 year in a jail or house of correction or by both such fine and imprisonment and, for each subsequent offense, by a fine of not less than $10,000 nor more than $50,000 or not more than 2½ years in a jail or house of correction or not more than 5 years in a state prison or by both such fine and imprisonment. For the purpose of this subsection, “intimidate” shall mean to place a person in reasonable apprehension of bodily harm to that person or another.

The bill strengthens existing law criminalizing intentional obstruction of clinic access:

(e) A person who impedes a person’s access to or departure from a reproductive health care facility with the intent to interfere with that person’s ability to provide, support the provision of or obtain services at the reproductive health care facility shall be punished, for the first offense, by a fine of not more than $1,000 or not more than 6 months in a jail or house of correction or by both such fine and imprisonment and, for each subsequent offense, by a fine of not less than $5,000 nor more than $25,000 or not more than 2½ years in a jail or house of correction or not more than 5 years in the state prison or by both such fine and imprisonment.

(f) A person who knowingly impedes or attempts to impede a person or a vehicle attempting to access or depart from a reproductive health care facility shall be punished, for the first offense, by a fine of not more than $500 or not more than 3 months in a jail or house of correction or by both such fine and imprisonment and, for each subsequent offense, by a fine of not less than $1,000 nor more than $5,000 or not more than 2½ years in a jail or house of correction or by both such fine and imprisonment.

The law also criminalizes reckless behavior by activists around driveways to clinic parking lots.

(g) A person who recklessly interferes with the operation of a vehicle that attempts to enter, exit or park at a reproductive health care facility shall be punished, for the first offense, by a fine of not more than $500 or not more than 3 months in a jail or house of correction or by both such fine and imprisonment and, for each subsequent offense, by a fine of not less than $1,000 nor more than $5,000 or not more than 2½ years in a jail or house of correction or by both such fine and imprisonment.

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Finally, the law explicitly allows civil enforcement against violators of the preceding sections by private parties or the attorney general. Civil enforcement could lead to broader injunctive relief or to civil penalties.

(i) If a person or entity fails to comply with a withdrawal order pursuant to subsection (b) or violates subsections (c), (d), (e), (f) or (g), an aggrieved person or entity or the attorney general or both may commence a civil action. The civil action shall be commenced either in the superior court for the county in which the conduct complained of occurred or in the superior court for the county in which the person or entity complained of resides or has a principal place of business.

(j) In an action pursuant to subsection (i), a court may award as remedies: (1) temporary, preliminary and permanent injunctive relief; (2) compensatory and punitive damages; and (3) costs, attorneys’ fees and expert witness fees. In an action brought by the attorney general pursuant to subsection (i), the court may also award civil penalties against each defendant in an amount not exceeding: (A) $10,000 for a nonviolent violation and $15,000 for other first violations; and (B) $15,000 for a subsequent nonviolent violation and $25,000 for any other subsequent violation.

(k) A violation of an injunction entered by a court in an action brought pursuant to subsection (i) shall be a criminal offense under section 11J of chapter 12.

I had some concern that the definition of the word “impede” in this statute might seem to be overbroad, but was convinced in discussion that the language was intended and would be construed to apply to creation of actual physical impediments as opposed to mere speech.

You can view the Senate press release here.