Accountability for Harassment of Women Act

Summary: The Accountability for Harassment of Women Act would allow reproductive health patients the ability to sue an individual for coercion, threats or violence intended to interfere with their reproductive health care.

Background Summary

Women have the right to be free from coercion and violence in making decisions about their reproductive health care. But intrusion is fairly common and it can take many forms and come from many places. “Reproductive and sexual coercion” has been recognized and defined by the American College of Obstetricians and Gynecologists as “behavior…intended to control a woman’s sexual decision-making, contraceptive use, and/or pregnancy.”

Coercion, threats, stalking and harassment are particularly common when women attempt to access health care at abortion clinics. In addition to blocking public walkways and calling patients murderers, anti-abortion protesters take pictures of patients and may post patient names and personal information (license plate number, picture, etc.) in public forums ripe for digital harassment. Of course, many of these patients are not even there to obtain an abortion since most clinics also provide cancer screenings, breast exams, birth control and all manner of reproductive health care services.

Reproductive and sexual coercion also happens by sabotaging a woman’s contraceptive method, pressuring her to become pregnant unwillingly, or forcing her to end or continue a pregnancy against her will. A number of studies have found that women who experience intimate partner violence have experienced reproductive coercion, including contraceptive sabotage.

Women should not be harassed and threatened for exercising their constitutional rights. The United States Supreme Court has firmly and repeatedly held that the Fourteenth Amendment to the United States Constitution protects people’s rights to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education” and that includes a woman’s right to choose to terminate a pregnancy. The Court has recognized that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”

Existing laws are insufficient to protect the clients of reproductive health care facilities. Although criminal law addresses some of the anti-abortion violence, it has brought few criminals to justice. In contrast, the purpose of tort law is to “promote overall social welfare” by “deter[ring] socially undesirable conduct” and to “compensate any actual losses of welfare flowing from such conduct.” By creating a new tort in statutory law related to reproductive health care, the state would provide an important tool to push back against the harassment and violence these facilities commonly face.

Every person has the right to be free from coercion and harassment while accessing reproductive health care. Victims of reproductive sabotage, harassment and violence need a new process to help ameliorate the harm caused them and to deter those who consider perpetrating such actions on others.


Model Legislation

SECTION 1. SHORT TITLE

This Act shall be called the “Accountability for Harassment of Women Act.”

SECTION 2. FINDINGS AND PURPOSE

(A) FINDINGS—The legislature finds that:

1)      Every individual possesses a fundamental right of privacy for personal reproductive decisions. Moreover, every person has the right to be free from coercion and violence in making decisions about and accessing reproductive health care. Accordingly, every person should have the right to access reproductive health care without interference from individuals, organizations or the government.

2)      The United States Supreme Court has firmly and repeatedly held that the Due Process Clause of the Fourteenth Amendment to the United States Constitution protects people’s rights to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education” and that includes a woman’s right to choose to terminate a pregnancy. The Court has recognized that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”

3)      Interference with reproductive health care can take multiple forms, including through the actions of individuals, organizations and corporations. “Reproductive and sexual coercion” has been recognized and defined by the American College of Obstetricians and Gynecologists as “behavior…intended to control a woman’s sexual decision-making, contraceptive use, and/or pregnancy. Sabotaging a woman’s contraceptive method, pressuring her to become pregnant unwillingly, or forcing her to end or continue a pregnancy against her will are all examples of reproductive coercion.” A number of studies have found that women who experience intimate partner violence have specifically experienced reproductive coercion, including contraceptive sabotage.

4)      Although reproductive coercion, harassment and violence directed at individuals clearly causes harm and interferes with access to critical reproductive health care, individuals who have perpetrated them are rarely held legally accountable to the victims for their actions.

5)      In contrast, the purpose of tort law is to promote overall social welfare by deterring socially undesirable conduct and to compensate any actual losses of welfare flowing from such conduct.

6)      Victims of reproductive sabotage, harassment and violence need a new process to help ameliorate the harm caused them and to deter those who consider perpetrating such actions on others.

(B) PURPOSE—This law is enacted to protect the health, safety and welfare of the staff and patients of healthcare facilities that provide reproductive health care services.

SECTION 3. CLINIC PROTECTION

After section XXX, the following new section XXX shall be inserted:

(A) DEFINITIONS—In this section:

1)      “Coercion” means when a person, with intent unlawfully to restrict freedom of action of another to the detriment of the other, threatens to commit or commits any criminal offense or abuses the legal process.

2)      “Entity” means a partnership, limited partnership, association of two or more individuals, or any type of corporation, whether incorporated or unincorporated.

3)      “Health care provider” means any person, corporation, facility or institution licensed or otherwise authorized by the state to provide health care services, including, but not limited to, any physician, coordinated care organization, hospital, health care facility, dentist, nurse, optometrist, podiatrist, physical therapist, psychologist, chiropractor or pharmacist and an officer, employee or agent of such person acting in the course and scope of employment or agency related to health care services.

4)      “Health care facility” means any office, building, or other place in which a healthcare provider provides health care services, whether or not the facility is licensed by the state.

5)      “Intimidation” means an act or course of conduct directed at a specific person that causes fear or apprehension in such person and serves no legitimate purpose.

6)      “Misrepresentation” means a false statement of substantive fact, or conduct that leads to a false belief of a substantive fact material to proper understanding of the matter in hand, made with intent to deceive or mislead.

7)      “Reproductive health care” means abortion, contraception, infertility treatment, prenatal care, miscarriage management, treatment for STIs, as well as counseling for all of these services.

8)      “Social services office” means any office or facility in which social services or any domestic violence programs are provided, including but not limited to referral for health care services.

(B) INTERFERENCE PROHIBITED

1)      An individual or entity violates this section when the individual or entity intentionally or knowingly prevents or attempts to prevent another individual’s efforts to obtain or use reproductive health care, except when permitted by law, by engaging in the following activities:

a)      Using force, threats of force, coercion or intimidation against that individual or a third party; or

b)      Using force, threats of force, coercion or intimidation against a health care provider or health care facility, medical office, or social services office that is assisting an individual in obtaining or using reproductive health care, or providing an individual with reproductive health care.

c)      A government official who or agency that acts with the intent of preventing or unnecessarily delaying an individual’s efforts to obtain or use reproductive health care, except when specifically required by law.

2)      Any individual who has suffered a violation of this section shall have a cause of action against the violating individual or entity. Such injured individual may bring an action for statutory damages as permitted under this section, which in the event of a violation of the section shall be fifteen thousand dollars ($15,000) per violation.

a)      A plaintiff shall be entitled to proceed under a pseudonym upon providing the court with affidavit asserting the harm that could arise to the plaintiff and/or his or her family or home if his or her identity is not concealed. The plaintiff shall be entitled to a presumption from the court that identification poses a risk of retaliatory physical or mental harm to the requesting party and to innocent nonparties.

b)      In a suit to which this section applies, only the following persons are entitled to know the true identifying information about the plaintiff: the judge; a party to the action; the attorney representing a party to the action; and a person authorized by a written order of a court specific to that person. The court shall order that a person entitled to know the true identifying information under this subsection may not divulge that information to anyone without a written order of the court. A court shall hold a person who violates the order in contempt.

c)      A plaintiff shall be presumed entitled to a protective order from the court prohibiting discovery regarding the following facts and any other associated facts that the plaintiff alleges will endanger him or herself or his or her family:  the plaintiff’s residential address, phone number and email address; any information about the plaintiff’s children including their names, ages, where they attend school, their phone numbers and email addresses; and any other identifying information.  If the defendant or defendants believe that the above information is relevant to the defense’s claims, defendant shall make a motion for discovery of that information under court seal. The court shall allow the information to be discovered only if the information is relevant to the defense’s claims, and only under seal with all non-relevant information redacted by plaintiff before it is provided to the court.

3)      For all violations of the section, the plaintiff may recover reasonable attorneys’ fees and costs.

4)      Nothing in this section shall be construed to alter existing professional standards of care or to impose any new duties or requirements on health care providers or the provision of medical care.

SECTION 4. REPEAL

The following are repealed: [If there are provisions in existing law that are inconsistent with this Act, this section should list and explicitly repeal them.]

SECTION 5. SEVERABILITY

The provisions of this Act shall be severable, and if any phrase, clause, sentence or provision is declared to be invalid or is preempted by federal law or regulation, the validity of the remainder of this Act shall not be affected.

SECTION 6. EFFECTIVE DATE

This Act shall take effect on XXXX 1, 2016.

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