Prevent Anti-Abortion Terrorism Act

Summary: The Prevent Anti-Abortion Terrorism Act would use five clinic protection strategies – FACE, Safe at Home, safety zones, civil lawsuits, and hate crime penalties – to protect facilities, providers, employees, volunteers and patients from anti-abortion violence and harassment.

Background Summary

Clinics that offer reproductive health care are continually subjected to violence, threats of violence and harassment. According to the National Abortion Federation, there have been 37 murders or attempted murders due to anti-abortion violence, and from 1977 to 2014, there were also 429 death threats, 662 bomb threats and 663 treats of bioterrorism; 323 bombings, arson attacks or attempted bombings or arsons against abortion clinics; 1,507 acts of clinic vandalism; 554 acts of stalking; nearly 17,000 hate mails and calls; and 801 clinic blockades with more than 33,000 arrests.

Abortion providers, clinic workers and patients are, quite reasonably, afraid for their personal safety. Among abortion providers, 92 percent worry about the safety of their patients and employees in the areas surrounding their clinics. Nearly 90 percent of abortion providers have had patients express concerns about their personal safety and more than 80 percent have been forced to call law enforcement because of concerns about safety, access or criminal activity.

Existing laws are insufficient to protect reproductive health care facilities. To prevent anti-abortion harassment and violence, the state must:

  • Protect access to reproductive health clinics with a Freedom of Access to Clinic Entrances (FACE) law. Federal law and a few states currently provide FACE Acts.
  • Ensure the confidentiality of the home addresses of abortion providers. California has a “Safe at Home” law for the employees of reproductive health clinics who fear for their safety.
  • Provide a protected space for patients and staff entering or leaving reproductive health clinics. Colorado, Montana, and a few cities have laws that keep protesters a reasonable distance from people trying to access a clinic.
  • Provide a mechanism in civil law that allows abortion providers to hold individuals accountable for acts of violence and harassment.
  • Treat crimes perpetrated against clinics, clinic workers and patients that are motivated by opposition to abortion as hate crimes.

Every person has the right to be free from harassment and violence while accessing or providing reproductive health care. The Prevent Anti-Abortion Terrorism Act is intended to give providers and patients some new protections from violence, threats of violence and harassment.


Model Legislation

SECTION 1. SHORT TITLE

This Act shall be called the “Prevent Anti-Abortion Terrorism Act.”

SECTION 2. FINDINGS AND PURPOSE

(A) FINDINGS—The legislature finds that:

1)      According to the National Abortion Federation, there have been 37 murders or attempted murders due to anti-abortion violence, and from 1977 to 2014, there were also 429 death threats, 662 bomb threats and 663 treats of bioterrorism; 323 bombings, arson attacks or attempted bombings or arsons against abortion clinics; 1,507 acts of clinic vandalism; 554 acts of stalking; nearly 17,000 hate mails and calls; and 801 clinic blockades with more than 33,000 arrests.

2)      To prevent anti-abortion terrorism, the state must protect access to reproductive health clinic entrances.

3)      To prevent anti-abortion terrorism, the state must ensure the confidentiality of the home addresses of abortion providers, at least allowing them to be safe at home.

4)      To prevent anti-abortion terrorism, the state must provide a safety zone for patients and staff entering or leaving reproductive health clinics.

5)      To prevent anti-abortion terrorism, the state must provide a mechanism in civil law that allows abortion providers to hold individuals accountable for acts of violence and harassment.

6)      To prevent anti-abortion terrorism, the state must treat crimes perpetrated against clinics, clinic workers and patients that are motivated by opposition to abortion as hate crimes.

[Bill drafting note: Because of the sensitivity of First Amendment issues and the fact that abortion opponents often file suit, any legislation that might implicate First Amendment rights should include Findings that are carefully crafted to describe the problem in your own jurisdiction.]

(B) PURPOSE—This law is enacted to protect the health and safety of medical professionals, health care workers, volunteers and patients.

SECTION 3. FREEDOM OF ACCESS TO CLINIC ENTRANCES

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

(A) DEFINITIONS

1)      “Aggrieved” means:

a)      A person, physically present at the health care facility when the prohibited actions occur, whose access is or is about to be obstructed or impeded, or whose care is or is about to be disrupted;

b)      The health care facility, its employees, or agents; or

c)      The owner of the health care facility or the building or property upon which the health care facility is located.

2)      “Reproductive health care facility” means any office or clinic that provides reproductive health care services.

3)      “Reproductive health care services” means health care services relating to abortion, the termination of a pregnancy, contraception, infertility treatment, prenatal care, miscarriage management, treatment for STIs, or counseling for any of the preceding services.

4)      “Reproductive health care provider, employee, volunteer, or patient” means a person who obtains, provides or assists, at the request of another person, reproductive health care services, or a person who owns or operates a reproductive health care facility.

(B) INTERFERENCE WITH REPRODUCTIVE HEALTH CARE FACILITY—It is unlawful for a person, except as specifically allowed by state or federal law, alone or in concert with others, to willfully or recklessly interfere with access to or from a reproductive health care facility or willfully or recklessly disrupt the normal functioning of such facility by:

1)      Physically obstructing or impeding the free passage of a person seeking to enter or depart from the facility or from the common areas of the real property upon which the facility is located;

2)      Making noise that unreasonably disturbs the peace within the facility;

3)      Trespassing on the facility or the common areas of the real property upon which the facility is located;

4)      Telephoning the facility repeatedly, or knowingly permitting any telephone under his or her control to be used for such purpose; or

5)      Threatening to inflict injury on the providers, employees, volunteers, or patients, or property of the facility or knowingly permitting any telephone under his or her control to be used for such purpose.

(C) CRIMINAL PENALTIES—A violation of this section is a [Class A misdemeanor]. A person convicted of violating this act shall be punished as follows:

1)      For a first offense, a fine of not less than two hundred fifty dollars ($250) and a jail term of not less than twenty-four consecutive hours;

2)      For a second offense, a fine of not less than one thousand dollars ($1,000) and a jail term of not less than seven consecutive days; and

3)      For a third or subsequent offense, a fine of not less than ten thousand dollars ($10,000) and a jail term of not less than thirty consecutive days.

(D) CIVIL REMEDIES

1)      A person or health care facility aggrieved by the actions prohibited by this section may seek civil damages from those who committed the prohibited acts and those acting in concert with them. In addition to actual damages, a plaintiff may be entitled to recover up to five hundred dollars for each day that the actions occurred, or up to five thousand dollars for each day that the actions occurred if the plaintiff is a reproductive health care facility. If the plaintiff prevails, the plaintiff is entitled to recover costs and attorneys’ fees.

2)      The [insert relevant court] of this state shall have authority to grant temporary, preliminary, and permanent injunctive relief to enjoin violations of this section. In appropriate circumstances, any court having personal jurisdiction over one or more defendants may issue injunctive relief that shall have binding effect on the original defendants and persons acting in concert with the original defendants, in any county within the state. The state and its political subdivisions shall cooperate in the enforcement of court injunctions that seek to protect against acts prohibited by this section.

(E) PROTECTION OF ABORTION PATIENTS AND PROVIDERS

A court having jurisdiction over a criminal or civil proceeding under this section shall take all steps reasonably necessary to safeguard the individual privacy and prevent harassment of a reproductive health care provider, employee, volunteer or patient who is a party or witness in a proceeding, including granting protective orders and orders in limine.

(F) NO LIMIT ON REMEDIES

Nothing in this chapter shall be construed to limit the right to seek other available criminal or civil remedies. The remedies provided in this chapter are cumulative, not exclusive.

SECTION 4. SAFE AT HOME

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

[Bill drafting note: If a reproductive rights “Safe At Home” measure is being considered in one of the 36 states that already has a domestic violence address confidentiality program, it is probably easiest to amend that existing law to include reproductive health care service providers, employees, volunteers and patients.]

(A) DEFINITIONS—In this section:

1)      “Address” means an individual’s residential street address, school address, or work address.

2)      “Reproductive health care facility” means any office or clinic that provides reproductive health care services.

3)      “Reproductive health care services” means health care services relating to abortion, the termination of a pregnancy, contraception, infertility treatment, prenatal care, miscarriage management, treatment for STIs, or counseling for any of the preceding services.

4)      “Reproductive health care services provider, employee, volunteer, or patient” means a person who obtains, provides or assists, at the request of another person reproductive health care services, or a person who owns or operates a reproductive health care facility.

(B) PROGRAM PARTICIPATION—A person may apply to the [Secretary of State] to have an address designated by the [Secretary of State] to serve as the person’s address. An application shall be approved if the applicant is a reproductive health care services provider, employee, or volunteer who is fearful for his or her safety or the safety of his or her family because of his or her affiliation with a reproductive health care facility, and the application is accompanied by all of the following:

1)      Documentation showing that the individual is to commence employment or is currently employed as a provider or employee at a reproductive health care facility or is volunteering at a reproductive health care facility.

2)      A certified statement signed by a person authorized by the reproductive health care facility stating that the facility or any of its providers, employees, volunteers, or patients is or was the target of threats or acts of violence within one year of the date of the application.

3)      A sworn statement that the applicant fears for his or her safety or the safety of his or her family due to his or her affiliation with the reproductive health care facility.

4)      A designation of the [Secretary of State] as agent for purposes of service of process and for the purpose of receipt of mail.

5)      The mailing address where the applicant can be contacted by the [Secretary of State], and the telephone number or numbers where the applicant can be called by the [Secretary of State].

6)      The address or addresses that the applicant requests not be disclosed for the reason that disclosure will increase the risk of acts of violence toward the applicant.

(C) STATE AND LOCAL PUBLIC RECORDS

1)      A program participant may request that state and local agencies use the address designated by the [Secretary of State] as his or her address. When creating, maintaining, or modifying a public record, excluding the record of any birth or death, state and local agencies shall accept the address designated by the [Secretary of State] as a program participant’s substitute address, unless the [Secretary of State] has determined both of the following:

a)      The agency has a bona fide statutory or administrative requirement for the use of the address that would otherwise be confidential under this section.

b)      This address will be used only for those statutory and administrative purposes and shall not be publicly disseminated.

2)      A program participant may use the address designated by the [Secretary of State] as his or her work address.

3)      The [Secretary of State] shall forward all first-class mail and all mail sent by a governmental agency to the appropriate program participants.

4)      A program participant who is otherwise qualified to vote may seek to register and vote in a confidential manner pursuant to [insert relevant law].

5)      The [Secretary of State] may not make a program participant’s address, other than the address designated by the [Secretary of State], available for inspection or copying, except under any of the following circumstances:

a)      If requested by a law enforcement agency, to the law enforcement agency;

b)      If directed by a court order, to a person identified in the order; or

c)      If certification has been canceled.

6)      The [Secretary of State] may adopt rules to facilitate the administration of this section by state and local agencies.

SECTION 5. ABORTION CLINIC SAFETY ZONES

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

[Bill drafting note: Because of the sensitivity of First Amendment concerns and the fact that abortion opponents often file suit over the First Amendment, the Findings should be carefully crafted to describe the problem in your own jurisdiction.]

(A) DEFINITIONS—In this section:

“Reproductive health care facility” means any office or clinic that provides abortion, contraception, infertility treatment, prenatal care, miscarriage management, treatment for STIs, or counseling for any of the preceding services.

(B) SAFETY ZONES FOR PROVIDERS, EMPLOYEES, VOLUNTEERS AND PATIENTS

1)      No person shall intentionally touch or cause physical contact with an individual who is attempting to enter or exit from a reproductive health care facility, without that individual’s consent.

2)      No person shall knowingly obstruct, detain, hinder, impede, or block an individual’s entry to or exit from a reproductive health care facility. Obstruction includes causing such individual to take evasive action to avoid physical contact or placing signs on a walkway in a way that restricts the flow of pedestrian traffic.

3)      When an individual is entering or exiting a reproductive health care facility, no person shall knowingly approach within eight feet of such individual, unless the individual consents, for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person in any public way or sidewalk area within a radius of one hundred feet from any entrance door to the reproductive health care facility.

(C) ENFORCEMENT

1)      Violation of this section is a misdemeanor punishable by a fine of one hundred dollar ($100) for a first offense and one thousand dollars ($1,000) for each subsequent offense.

2)      An aggrieved person may enforce the provisions of this section by means of a civil action. An aggrieved person includes any reproductive health care facility where the violation occurred. Violators shall be liable for actual damages, but in no case less than one thousand dollars ($1,000) plus attorneys’ fees and the costs of the action.

SECTION 6. PREVENTION OF ANTI-ABORTION HARASSMENT AND VIOLENCE

(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.

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

3)      “Harassment” means a knowing and willful course of conduct that is directed at a specific person, that would cause a reasonable person to be seriously alarmed or harassed, and that in fact seriously alarms or harasses the person, and that serves no legitimate purpose.

4)       “Interfering” means knowingly and intentionally pursuing a course of conduct designed to deter, prevent, or delay a person from providing or referring for reproductive health care through threats, intimidation, force, coercion, or misrepresentation.

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 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 facility” means any office or clinic that provides abortion, contraception, infertility treatment, prenatal care, miscarriage management, treatment for STIs, or counseling for any of the preceding services.

8)      “Reproductive health care services” means health care services relating to abortion, the termination of a pregnancy, contraception, infertility treatment, prenatal care, miscarriage management, treatment for STIs, or counseling for any of the preceding services in a reproductive health care facility.

9)      “Reproductive health care services provider, employee, volunteer, or patient” means a person who obtains, provides or assists, at the request of another person reproductive health care services, or a person who owns or operates a reproductive health care facility.

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

(B) INTERFERENCE WITH THE PROVISION OF REPRODUCTIVE HEALTH CARE PROHIBITED

1)   Any reproductive health care provider, employee, volunteer, patient, reproductive health care facility, health care entity, or social services office or social services provider who has had his, her, or its ability to provide or refer for reproductive healthcare limited or prevented shall have a cause of action against:

a)      The individual who, or entity that, intentionally or knowingly prevented or attempted to prevent a health care provider or health care facility’s efforts to provide reproductive and sexual health care, or a social service office’s efforts to refer for reproductive and sexual health care, except when permitted by law, by:

i.            Interfering with the performance of a duty or the exercise of a function by an employee of a health care facility where reproductive or sexual health care is provided, or;

ii.            Interfering with the normal course of operations of a facility that provides reproductive health care; or

iii.            Harassing, coercing or intimidating patients seeking access to reproductive health care from a health care provider or facility.

b)      A government official or agency acting with the intent to prevent or unnecessarily delay a health care provider’s or medical facility’s efforts to provide reproductive or sexual health care, except when specifically required by law.

2)      Any health care or social services provider, entity, or facility that has experienced a violation of this section may bring an action for compensatory damages or for injunctive relief for the purpose of stopping or preventing violations or threatened violations of this section, or to determine the applicability of this section to actions or threatened future actions. Such individual or entity 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.

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

4)      Any plaintiff bringing a claim under this section may be entitled to the following limitations on discovery during litigation, due to the nature of the claim and the risk of harm to his or her family:

a)      A plaintiff shall be entitled to proceed under a pseudonym upon providing the court with an 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 subsection (a) 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.

SECTION 7. HATE CRIME PREVENTION

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

[Bill drafting note: The model below inserts “or association with reproductive health care services as a provider, employee, volunteer, or patient” into a list of other hate crimes. If the jurisdiction already has a hate crimes law, it would be easiest to insert such language into existing law.]

(A) ENHANCED PENALTIES—If a person charged with any felony, misdemeanor, or petty misdemeanor offense is found to have intentionally selected the victim or the victim’s property because of the victim’s actual or perceived race, color, creed, religion, ancestry, gender, sexual orientation, gender identity or expression, physical or mental disability, national origin, age, or association with reproductive health care services as a provider, employee, volunteer, or patient, that person may be found guilty of a hate crime with the penalty imposed as follows:

1)      Where the underlying offense is a petty misdemeanor, it shall be punishable as a misdemeanor.

2)      Where the underlying offense is a misdemeanor, it shall be punishable as a class C felony.

3)      Where the underlying offense is a class C felony, it shall be punishable as a class B felony.

4)      Where the underlying offense is a class B felony, it shall be punishable as a class A felony.

5)      Where the underlying offense is a class A felony, the maximum fine authorized shall be doubled and a 20-year term of imprisonment shall be imposed.

(B) CIVIL ACTION FOR HATE CRIMES

1)      If a person commits an intentional tort and has selected the victim or the victim’s property because of the victim’s actual or perceived race, color, creed, religion, ancestry, gender, sexual orientation, gender identity or expression, physical or mental disability, national origin, age, or association with reproductive health care services as a provider, employee, volunteer, or patient, any victim of that tort may file a civil action to secure an injunction, damages or other appropriate relief at law or equity. In this subsection, a victim can be a person, corporation, association or other organization.

2)      In any such action, whether a tort has occurred shall be determined according to the burden of proof used in other civil actions for similar relief.

3)      Upon prevailing in such civil action, the plaintiff may recover: both special and general damages, including damages for emotional distress; punitive damages; and/or reasonable attorney fees and costs.

SECTION 8. 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 9. 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 10. EFFECTIVE DATE

This Act shall take effect on XXXX 1, 2016

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