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Analysis

New buffer zone bill S2283 is outrageously oppressive and clearly unconstitutional

What you need to know about this terrible legislation

POSTED: July 21, 2014

See full text of bill below

This bill was filed by Sen. Harriette Chandler (D-Worcester) behalf of Governor Deval Patrick, Attorney General Martha Coakley, Planned Parenthood, and NARAL. Their overwhelming hostility against the pro-life cause was not hidden at all.

This bill is not about public safety. It’s about using the power of the State to intimidate and threaten peaceful citizens legally exercising their First Amendment rights, as protected by a recent 9-0 US Supreme Court ruling. In nearly two decades of dealing with the Massachusetts Legislature, we have never seen a more reprehensible piece of legislation.

It's written to solve “problems” that don’t exist. It lays out draconian punishments for crimes for which no one has been prosecuted for at least 20 years. It ignores crimes (against pro-lifers) that regularly take place. It runs completely counter to the spirit and intent of the Supreme Court ruling.

The bill has three particularly outrageous features:

  1. Creates new "buffer zone." The bill creates a 25-foot buffer zone substantially similar to the one which the US Supreme Court recently struck down.
  2. “Withdrawal” clause. The bill allows police to arbitrarily determine that any person standing near an abortion clinic is in some way impeding access, and may order him to stay outside of the buffer zone for at least eight hours.

    (It’s ironic that citizens’ right to assembly was abused in colonial Boston by the British, which spurred its inclusion in the First Amendment to the US Constitution.)

    This can be done with no legal hearing or due process, and is ripe for abuse from aggressive police. The bill threatens pro-lifers with unusually severe penalties of arrest, prosecution, criminal fines, and jail time for not complying. In addition, a court can later impose civil fines, large punitive damages, attorney’s fees and “expert witness fees”.  Moreover, the trial venue is placed in Superior Court rather than District Court, making the defense much more difficult.
  3. Harsher punishments for one group over another. The bill places unusually high punishments for anyone threatening, intimidating, assaulting, blocking, or otherwise impeding people entering or leaving abortion clinics. But these high punishments do not apply to people entering or leaving the clinics (or anyone else) who are perpetrators of assaults of intimidation against pro-life advocates.

    In fact, the overwhelming amount of crime in front of abortion clinics involves threats and assaults against pro-lifers, and there have been numerous prosecutions for that. There are no prosecutions in 20 years against pro-lifers years for similar crimes.

This bill is clearly meant to suppress the constitutional free speech rights of pro-lifers, and nothing else. It reflects the extreme animus and hostility of the Governor and Attorney General against pro-life citizens.

Here is the text of the bill: (Download State House version HERE.)

S 2283: An Act to promote public safety and protect access to reproductive health care facilities.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

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.  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 or by both such fine and imprisonment.

(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.

(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.

(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.

(h) A person who fails to comply with a dispersal 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.

(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.