2 TRANSITIONAL ANd NON-TRANSITIONAL MCLE CREdITS:

This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 2 Transitional and Non-Transitional credit hours; 2 Professional Practice.

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StrategieS for CounteraCting the eroSion of reproduCtive

rightS in the u.S. todayPrepared in connection with a Continuing Legal Education course presented

at New York County Lawyers’ Association, 14 Vesey Street, New York, NY scheduled for October 27, 2010.

P r o g r A m C o - s P o N s o r : NYCLA’s Women’s Rights Committee

P r o g r A m C o - C h A I r s :

Minna Elias and Fabiola Carrion, NYCLA’s Women’s Rights Committee

F A C u L t Y :

Kathryn Kolbert, Director, Athena Center for leadership Studies at Barnard College

Sondra Goldschein, ACLU Carmina Bernardo, Planned Parenthood, NYC

Bonnie Scott Jones, Center for Reproductive Rights

Information Regarding CLE Credits and Certification

Strategies for Counteracting the Erosion of Reproductive Rights in the US

Today Wednesday, October 27, 2010

6:00 PM – 9:00 PM

The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution.

i. You must sign-in and note the time of arrival to receive your

course materials and receive MCLE credit. The time will be verified by the Program Assistant.

ii. You will receive your MCLE certificate as you exit the room at

the end of each day. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium.

iv. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate.

v. Please note: We can only certify MCLE credit for the actual time you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. If it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week.

vi. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly unless you can provide verification of course completion. Your certificate will be mailed to you within one week.

Thank you for choosing NYCLA as your CLE provider!

New York County Lawyers’ Association

Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

Strategies for Counteracting the Erosion of Reproductive Rights in the U.S. Today

Wednesday, October 27, 2010 6:00 PM – 9:00 PM

AGENDA Program Co-Chairs Minna Elias and Fabiola Carrion, NYCLA’s Women’s Rights

Committee Panel Kathryn Kolbert, Director, Athena Center for leadership Studies at

Barnard College Sondra Goldschein, ACLU Carmina Bernardo, Planned Parenthood, NYC Bonnie Scott Jones, Center for Reproductive Rights

5:30 PM – 6:00 PM Registration 6:00 PM – 6:10 PM Introductions and Announcements 6:10 PM – 9:00PM** Discussion *** There will be two ten minute breaks during the evening.

New York County Lawyers’ Association

Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

Strategies for Counteracting the Erosion of Reproductive Rights

in the U.S. Today Wednesday, October 27, 2010

6:00 PM – 9:00 PM

Table of Contents

• Testimony of the New York Civil Liberties Union before The New York City Council Committee on Civil Rights regarding Access to Reproductive Health Care Act (Int. 826)

• Int. No. 826-A Final Bill

• Planned Parenthood Brochure on New York’s Reproductive Health Act

• List of Links to Important Reproductive Freedom Cases

125 Broad Street New York, NY 10004 212.607.3300 212.607.3318 www.nyclu.org

Testimony of the New York Civil Liberties Union

before

The New York City Council

Committee on Civil Rights

regarding

Access to Reproductive Health Care Facilities Act (Int. No. 826)

November 18, 2008

My name is Ami Sanghvi and I am a Staff Attorney in the Reproductive Rights Project of

the New York Civil Liberties Union (“NYCLU”). I would like to thank the Committee on Civil

Rights for inviting the NYCLU today to provide testimony relating to the proposed Access to

Reproductive Health Care Facilities Act (“Clinic Access Bill”).

The NYCLU, the state affiliate of the American Civil Liberties Union, is a not-for-profit,

nonpartisan organization with seven state-wide offices and nearly 50,000 members. The

NYCLU’s mission is to defend and promote the fundamental principles, rights and constitutional

values embodied in the Bill of Rights of the U.S. Constitution and the Constitution of the State of

New York. This includes the rights to privacy, personal autonomy, and equality that are the

foundation of reproductive freedom, and the rights to free speech, assembly, and religious liberty

embodied in the First Amendment. In light of our long history of vigorously defending and

2

balancing these sometimes competing constitutional concerns, the NYCLU is uniquely

positioned to provide testimony on this bill.

The NYCLU believes that the right to decide whether to continue or terminate a

pregnancy is fundamental to women’s equality, dignity and personal autonomy. However, we

also recognize that issues associated with reproductive health care are controversial. We value

and encourage dialogue around those issues, and would contest any unlawful attempt to censor

that dialogue. For that reason, the NYCLU has always carefully considered the impact of

measures to protect access to reproductive health care facilities and have opposed measures that

violate protected free speech rights. We believe that the Clinic Access Bill strikes the

appropriate balance between free speech and the right to access reproductive health care.

Despite existing laws at the city, state and federal level which criminalize blocking clinic

entrances, various problems have been reported with enforcement. The current city law states

that an individual cannot block clinic access or follow or harass someone with the intent to

prevent them from receiving reproductive health services. Because of the difficultly in proving

intent, the law has rarely been enforced, leaving some reproductive health care facilities

vulnerable. Additionally, although the existing laws allow clinics to obtain injunctions against

individuals violating the boundaries of the law, small, independent clinics may lack the resources

to pursue this option. Therefore, while there is a need to strengthen the existing City law, in

order to provide meaningful protection, it is critical that both the Mayor’s office and the Police

Department focus on adequately training law enforcement and ensuring robust enforcement of

the law.

The Clinic Access Bill strengthens the existing law in several key ways. First, it clarifies

the law by removing the “intent” requirement and instead makes it unlawful to either

3

“knowingly” physically obstruct or block another person from entering or exiting the facility or

to impede a person’s access. Second, the Bill extends protection to driveways and parking lots

of the reproductive health care facilities, which more effectively ensures access. Third, the Bill

makes it easier for clinics to enforce the law against violators who interfere with their operations

or damage their facilities by requiring a showing of interference, rather than the more difficult to

interpret previous standard of significant disruption, with clinic operations. Finally, and

importantly, the legislation makes it clearer that clinics and their staff, as well as individuals

seeking services, may bring criminal as well as civil complaints. This may make enforcement

possible in cases where patients may not wish to pursue charges themselves due to privacy

concerns, and thus better protects doctors and clinic staff from unlawful violent or threatening

behavior.

While it is critical for the government to safeguard access to clinics, it is also necessary to

ensure that measures intended to do so do not impinge on protected First Amendment activity.

In examining whether a particular measure withstands constitutional scrutiny, the first inquiry is

whether a given measure implicates protected speech or expression.1 Insofar as speech is

implicated, a court will determine whether the measure applies “without reference to the content

of the regulated speech.”2 If the measure is determined to be content-neutral and merely imposes

time, place or manner restrictions, a court will examine whether the provision is narrowly

1 The Supreme Court has rejected the view that “an apparently limitless variety of conduct can be labeled ‘speech’

whenever the person engaging in the conduct intends thereby to express an idea.” United States v. O’Brien, 391

U.S. 367, 376 (1968). Yet, the Court has also acknowledged that conduct may be “sufficiently imbued with

elements of communication” to be within the scope of the First Amendment. Spence v. Washington, 418 U.S. 405,

409-11 (1974).

2 Madsen v. Women’s Health Center, 512 U.S. 753 (1994) (upholding an injunction establishing a fixed buffer zone

around clinic entrances and driveways) (citing Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). See also

Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997) (upholding a content-neutral injunction

establishing 15-foot fixed buffer zones outside of reproductive health care facilities on grounds that it was an

appropriately tailored method to secure unimpeded access to clinics and forwarded significant governmental

interests of ensuring public safety and order, promoting free flow of traffic, protecting property rights, and

protecting woman's freedom to seek pregnancy-related services).

4

tailored to serve a significant government interest, and whether it leaves open “ample alternative

channels of communication.”3 We believe that this proposal satisfies this test on all counts.

First, on its face, the primary concern of the provision is conduct, rather than protected

speech: it prohibits damaging clinic facilities, physically blocking or impeding access, or

engaging in conduct that places another person in reasonable fear of harm.4 To the degree that

the Bill is said to prohibit conduct that has expressive value, such as a peaceful sit-in that

“block[s] the premises of a reproductive health care facility, so as to impede access to or from

the facility”, the provisions still do not run afoul of the Supreme Court’s established test

regarding First Amendment protections for ‘symbolic speech.’5 Additionally, there is nothing in

the proposed Bill that regulates the content of speech or expression. An individual is free to

express his or herself, regardless of their views on abortion or reproductive health care, as long

3 Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983); accord Ward, 491 U.S. at 791;

Madsen, 512 U.S. at 790; Schenck, 519 U.S. at 369 – 70.

4 Some of the Clinic Access Bill provisions are similar to the federal Freedom of Access to Clinic Entrances

(“FACE”) Act and hence primarily proscribe conduct that does not receive First Amendment protection. See New

York ex rel. Spitzer v. Cain, 273 F.3d 184, n.4 196 (2d Cir. 2001) (noting in determining validity of an injunction

granted pursuant to federal FACE provisions that acts of force, threats of force or physical obstruction is behavior

can be enjoined pursuant to FACE without offending the First Amendment); Hoffman v. Hunt, 126 F.3d 575, 588

(4th Cir. 1997) (finding that the federal FACE Act did not violate the First Amendment by either prohibiting

conduct that by force or physical obstruction injures, interferes with, or intimidates the provider or recipient of

reproductive health care or even by prohibiting speech that amounts to a threat of force that obstructs, injures,

intimidates, or interferes with the provider or recipient of health care); U.S. v. Weslin, 964 F. Supp. 83, 87 (W.D.N.Y

1997) (finding that the FACE Act “proscribes only a limited number of activities–force, threats, and physical

obstruction– none of which are protected by the First Amendment”); Terry v. Reno, 101 F.3d 1412, 1418 – 19

(D.C.Cir. 1996) (noting that FACE Act did not violate the First Amendment because the Supreme Court has

previously ruled that the government can constitutionally punish all three types of conduct – use of force, threat of

force, and physical obstruction) (citing Wisconsin v. Mitchell, 508 U.S. 476, 484 (1993) (physical assault “is not by

any stretch of the imagination” protected conduct); Madsen, 512 U.S. 753, 773 (threats are proscribable under First

Amendment); Cameron v. Johnson, 390 U.S. 611, 617 (1968) (government may punish physical obstruction that

makes passage impossible or unreasonably dangerous)).

5 The government may regulate ‘symbolic speech’ if the legislation “further an important or substantial

governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the

incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that

interest.” U.S. v. O’Brien, 391 U.S. at 376 – 77; see also Scheck, 519 U.S. at 376 (recognizing the governmental

interests of ensuring public safety and order, promoting the free flow of traffic on streets and sidewalks, protecting

property rights, and protecting a woman’s freedom to seek pregnancy-related services); Terry v. Reno, 101 F.3d

1412 at 1419 (finding federal FACE constitutional even if conduct with expressive value is affected because the

statute furthers several important government interests including “ensuring access to lawful health services and

protecting the constitutional right of women seeking abortions and other pregnancy-related treatment.”).

5

as it is within the confines of the law. To be clear, the proposed legislation does not prohibit

prayer vigils, sidewalk counseling, or even leafleting, either within the 15 foot zone or

elsewhere.

The only provision of the bill that arguably directly affects protected speech and

expression is the prohibition against “following or harassing” a person within 15 feet of the

facilities’ premises. The term “harass” has been interpreted by New York courts narrowly6, so as

not to implicate protected speech. We believe that this language will continue to be understood

according to previous state law interpretations, and thus will not conflict with the First

Amendment.7 To the extent that application of the law might implicate speech, this provision of

6 Harassment provisions in New York State law have consistently been interpreted narrowly and required a showing

of intent to harass, annoy, or alarm another person by certain actions. See e.g.Lewis v. Robinson, 838 N.Y.S.2d 238

(3d Dept. 2007) (finding that despite a grandmother’s reckless disregard for children’s emotional welfare, her

disparaging comments regarding the father and her exposing the children to violent movies and behavior, an order of

protection was not warranted absent a showing of intent to harass the children). Although the law was amended in

1992, see N.Y. Penal Law §§ 240.25; 240.26 (McKinney 2008), the subdivisions in the new second degree

harassment statute are similar to provisions of the predecessor statute and hence judicial interpretations of the

previous statute remain instructive.

7 N.Y. Penal Law § 240.26 provides in relevant part:

A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm

another person, (1) he or she strikes, shoves, kicks or otherwise subjects such other person to

physical contact or attempts or threatens to do the same; or (2) he or she follows a person in or

about a public place or places; or (3) he or she engages in a course of conduct or repeatedly

commits acts which alarm or seriously annoy such other person and which serve no legitimate

purpose.

N.Y. Penal Law § 240.26 (McKinney 2008). The crux of the first subdivision is the element of actual, attempted, or

threatened physical contact or assaultive conduct. See People v. Bartkow, 96 N.Y.2d 770 (2001). The Court of

Appeals has required “genuine threats of physical harm” along with the requisite mens rea rather than isolated

threats interpreted as only “crude outbursts.” See People v. Dietze, 550 N.Y.S.2d 595, 598 – 99 (1989) (interpreting

the predecessor statute). The interpretations of the second subdivision rely heavily on the element of intent to

harass, annoy, or alarm, and hence a violation of this section would require more than simply following someone to

communicate a message. See e.g. People v. Mulausky, 485 N.Y.S.2d 925 (N.Y.C. Ct. 1985) (interpreting the

predecessor statute) (finding that defendant’s actions of inviting three women walking on the street to accompany

him home, while it was annoying, was not criminal because it did not demonstrate defendant’s intention to harass,

annoy, or alarm the women). Finally, the third subdivision is a catchall provision but requires a “course of conduct”

that is not met by evidence of one isolated incident. See People v. Sirlin, 2003 WL 22849772 *3 (N.Y. Just. Ct.

2003) (finding that a conviction for harassment in the second-degree could not be supported on facts where the

defendant shouted at his neighbor, using obscenities and making threats on a single occasion); People v. Hogan, 664

N.Y.S.2d 204 (N.Y.C. Crim. Ct. 1997) (finding that the isolated incidents of defendants yelling and cursing at

victims was insufficient to justify a conviction of harassment in the second-degree) aff’d by 698 N.Y.S.2d 388

(1998). Moreover, the third subdivision requires that no legitimate purpose is served, and hence would not apply to

6

the proposed bill is merely a “time, place, or manner” restriction that makes the limits of the

existing law clearer and thus allowing for greater ability to protest freely without fear of

violation. Moreover while the First Amendment protects speakers, it contemplates a regime in

which the targets of speech have an opportunity to avert their eyes or simply walk away.

Speakers are not entitled to turn listeners into captive audiences.8 Thus, while a protestor should

be free to approach an individual to convey a message, such a protestor has no inherent right to

follow the listener down the street and subject her to a constant harangue after she asks to be left

alone. Hence, while protestors have the right to distribute flyers within the 15 foot zone, they do

not have a protected First Amendment interest in following and harassing an unwilling person

within the 15 foot zone.

Finally, the bill is narrowly tailored to protect a significant government interest. The

Supreme Court has recognized important government interests at issue in protecting women and

health care staff from violent or threatening behavior.9 In upholding provisions of injunctions

issued on behalf of reproductive health care facilities, the Court has found important

governmental interests in ensuring public safety and order; promoting free flow of traffic on

streets and sidewalks, protecting property rights and protecting women’s freedom to seek

pregnancy-related services.10

Therefore, when the government takes actions to advance these

protected protest activity, which is clearly a “legitimate purpose” under the First Amendment. See Hogan, 664

N.Y.S.2d at 207 – 08 (noting that even vulgar speech is protected under the state and federal guarantees of free

expression unless it presents a clear and present danger of serious substantive evil) (citing Dietze, 550 N.Y.S.2d at

597); see also People v. Valerio, 468 N.Y.S.2d 100 (1983) (finding that defendant’s actions of picketing a union

headquarters from across the street and pointing to a union official and in a loud voice calling him corrupt did not

constitute harassment under predecessor statute).

8 See Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (upholding a ban on political advertising on city

buses); accord Brief Amicus Curiae of the American Civil Liberties Union, New York Civil Liberties Union, et al.

in support of Respondents filed in Schenck v. Pro Choice Network of Western New York (No. 95-1065) (Supreme

Court Of the United States, October Term 1995).

9 See cases cited supra note 2.

10 Madsen, 512 U.S. at 767 – 768; Schenck, 519 U.S. at 375.

7

interests, such as through the proposed legislation at issue here, the main inquiry is whether the

solution is sufficiently narrowly tailored and leaves open “ample alternative channels of

communication.”11

In answering this question, courts have looked closely at the level and nature of protest

activity as it applied to the particular facility or locations at issue.12

Where clinic access laws or

injunctions have been upheld, it has been on an evidentiary record of protestors blocking access

to facility entrances, and in many cases, failure of adequate law enforcement response.13

Conversely, where the record did not reflect such problems, or where the measure was broader

than necessary to address what problems did exist, such measures have been struck down in

whole or in part.14

It is our understanding that certain New York City clinics have faced protest activity that

has at times crossed the line between protected speech and violence or obstruction. However,

such problems are not City-wide, as they were in the past or as they currently are in other parts of

the country. In light of this factual situation, creation of a City-wide, blanket buffer zone

prohibiting protest activity would have been inappropriate, as it would sweep more broadly than

necessary to address the problems that exist.

The Clinic Access Bill does not take this approach, but rather, leaves open ample

opportunities for protesters to express their views. The Bill focuses on conduct rather than

11

Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. at 45; accord Ward, 491 U.S. at 791; Madsen, 512

U.S. at 790; Schenck, 519 U.S. at 369 – 70.

12 See e.g. U.S. v. Scott, 187 F.3d 282 (2d Cir. 1999) (upholding a floating buffer zone provision in an injunction

because the zone of separation was smaller than the buffer zone provision struck down in Schenck, and the record of

abusive conduct justified the restriction on speech).

13 See Hill v. Colorado, 530 U.S. 703, 710 (2000); Schenck, 519 U.S. at 377 – 84; Madsen, 512 U.S. at 769 – 70;

Scott, 187 F.3d at 288 – 89.

14 See Schenck, 519 U.S. at 377 (striking down a 15 foot “floating” buffer zone around a person or vehicle entering

or leaving the clinic on the basis of an insufficient record to support the restriction); Madsen, 512 U.S. at 771, 774 –

775 (striking down an injunction imposing a 300 foot “no approach” zone around the clinic and around clinic staff’s

residences as well as a 36 foot buffer zone on private property because the record did not support such provisions).

8

speech. Peaceful protest activity is permitted anywhere. Where a situation at a particular facility

would warrant broader injunctive relief, the law permits that clinic to initiate civil proceedings to

obtain an appropriately tailored injunction. The Clinic Access Bill thus successfully creates a

solution that is narrowly tailored to resolve the problems that exist on the ground with access to

New York City clinics.

In conclusion, it is the opinion and testimony of the NYCLU that the Bill will improve

the City’s ability to safeguard women’s access to reproductive health care services and to protect

the health care providers who deliver that vital care. It also adequately balances this important

goal with the rights of individuals to engage in peaceful protest. It is thus a welcome step

forward in fulfilling the City’s mission to protect access to health care services, while respecting

the diversity of views of all of the people of the City of New York.

Int. No. 826-A By The Speaker (Council Member Quinn) and Council Members Reyna, Lappin, Foster, Yassky, Seabrook, Sears, de Blasio, Arroyo, Comrie, Fidler, Garodnick, Gonzalez, Jackson, James, Koppell, Liu, Mark-Viverito, Martinez, Nelson, Palma, Sanders Jr., Stewart, Weprin, White Jr., Gerson, Mendez, Gennaro, Brewer, Rivera, Dickens and The Public Advocate (Gotbaum) A Local Law to amend the administrative code of the city of New York, in relation to the prohibition of activities to prevent access to reproductive health care facilities. Be it enacted by the Council as follows:

Section 1. Legislative findings and intent. The council of the city of New York

finds that the right to access reproductive health services is an important personal right

protected by state and federal law. Likewise, the right to peaceably protest and express

one's views is protected by state and federal law. Such actions include, but are not limited

to, the right to speak, march, demonstrate, picket, pray, associate with others in

expressive behavior or engage in other activity protected by the First Amendment. The

council is aware that there are individuals or groups of individuals who may exceed the

boundaries of lawful First Amendment expression by engaging in physical activities that

prevent access to reproductive health care facilities or by engaging in activities that

unlawfully harass or intimidate individuals trying to access such facilities. Such activities

unlawfully interfere with both the operators of reproductive health care facilities and all

individuals seeking free entrance and egress from such facilities.

The council finds that current law does not adequately protect reproductive health

care facilities and those who work in or seek services from such facilities. Therefore, the

council finds it appropriate for the protection of the public health, safety and welfare, to

enact new legislation to strengthen the prohibitions on interference with access to

reproductive health care facilities and services.

§2. Section 8-801 of chapter 8 of title 8 of the administrative code of the city of

New York, as added by Local Law 3 for the year 1994, is amended to read as follows.

§8-801. Short title. This local law shall be known as the “access to reproductive

health[ services] care facilities act.”

§3. Current subdivision c of section 8-802 of chapter 8 of title 8 of the

administrative code of the city of New York is REPEALED and a new subdivision c is

added to read as follows:

c. “Premises of a reproductive health care facility” shall mean the driveway,

entrance, entryway, or exit of a reproductive health care facility and the building in which

such facility is located and any parking lot in which the facility has an ownership or

leasehold interest.

§4. Section 8-803 of chapter 8 of title 8 of the administrative code of the city of

New York, as added by Local Law 3 for the year 1994, is amended to read as follows:

§8-803. Prohibition of activities to prevent access to reproductive health[

services] care facilities. a. It shall be unlawful for any person[, with the intent to prevent

any other person from obtaining or rendering, or assisting in obtaining or rendering, any

reproductive health care service or counseling] (1) to knowingly physically obstruct or

block[ such other] another person from entering into or exiting from the[ entryway or exit

of a reproductive health care facility, or the] premises[ in which such] of a reproductive

health care facility[ is located] by physically striking, shoving, restraining, grabbing, or

otherwise subjecting a person to unwanted physical contact, or attempting to do the same;

(2) to knowingly obstruct or block the premises of a reproductive health care facility, so

as to impede access to or from the facility, or attempt to do the same; (3) to follow and

harass[ such other] another person within 15 feet of the premises of a reproductive health

care facility; (4)[ in or about a public place or places or] to engage in a course of conduct

or repeatedly commit acts within 15 feet of the premises of a reproductive health care

facility when such behavior places[ such other] another person in reasonable fear of

physical harm, or attempt to do the same;[ or (3)] (5) to physically damage a reproductive

health care facility so as to[ significantly disrupt its] interfere with its operation, or

attempt to do the same[.]; or (6) to knowingly interfere with the operation of a

reproductive health care facility, or attempt to do the same, by activities including, but

not limited to, interfering with, or attempting to interfere with (i) medical procedures

being performed at such facility or (ii) the delivery of goods to such facility.

b. Violations. Any person who shall violate any provision of subdivision a of this

section shall be guilty of a misdemeanor punishable by a fine not to exceed one thousand

dollars or imprisonment not to exceed six months, or both, for a first conviction under

this section. For a second and each subsequent conviction under this section, the penalty

shall be a fine not to exceed five thousand dollars or imprisonment not to exceed one

year, or both.

§5. The opening paragraph of section 8-804 of chapter 8 of title 8 of the

administrative code of the city of New York, as added by Local Law 3 for the year 1994,

is amended to read as follows:

Where there has been a violation of subdivision (a) of section 8-803,[ Any] any

person whose ability to[ obtain or render, or assist in obtaining or rendering] access a

reproductive health care[ or counseling,] facility has been interfered with[ in violation of

paragraphs one or two of subdivision (a) of section 8-803], and any owner or operator of

a reproductive health care facility or owner of[ premises] a building in which such a

facility is located,[ where there has been a violation of subdivision (a) of section 8-803,]

may bring a civil action in any court of competent jurisdiction for any or all of the

following relief:

§6. Section 8-805 of chapter 8 of title 8 of the administrative code of the city of

New York, as added by Local Law 3 for the year 1994, is amended to read as follows:

§8-805. Civil action by city of New York to enjoin interference with access to

reproductive health[ services] care facilities.

The corporation counsel may bring a civil action on behalf of the city in any court

of competent jurisdiction for injunctive and other appropriate equitable relief in order to

prevent or cure a violation of subdivision a of section 8-803.

§7. This local law shall take effect ninety days after its enactment into law.

AS LS # 4160 2/17/09

CHART 1.

Federal Freedom of Access to Clinic Entrances (FACE)

(42 USC § 248)

State Penal Law (NY Penal Law § 240.70)

Intent • Requires that intent be established when proving that any of the prohibited activities occurred.

• Requires that intent be established when proving that any of the prohibited activities occurred.

Protection of Persons

• Prohibits someone from using force, the threat of force or physical obstruction in order to injure, intimidate or interfere with anyone obtaining or providing reproductive health services.

• Also prohibits the attempt to do any

of the above

• Prohibits someone from using force, the threat of force or physical obstruction to injure, intimidate or interfere with anyone: o obtaining or providing health

care services. o in order to discourage him or

her from obtaining or providing health care services.

• Also prohibits the attempt to do any of the above.

Protection of

Facilities

• Prohibits damaging or destroying the property of a reproductive health care facility (or attempting to do so).

• Prohibits damaging the property of a reproductive health care facility (or attempting to do so).

Remedies &

Penalties

• Any person can bring civil action to enforce. o But, a violation of the

prohibitions related to persons can only be brought by someone obtaining, trying to obtain, providing or trying to provide services in a reproductive health care facility.

• U.S. Attorney General and state attorney generals may seek civil remedies injunctive relief and compensatory damages.

• Second degree is class A misdemeanor.

• First degree is a class E felony.

CHART 2.

Current Law What will change? Intent to prevent another from obtaining or rendering, or assisting in obtaining or rendering any reproductive health care services or counseling must be proven in all cases, including prosecutions for: Physically obstructing or blocking another person from

(a) accessing an entryway or exit of a clinic, or (b) the premises in which a clinic is located. Following and harassing another in or about a public place

placing another in reasonable fear of physical harm.

Current law is difficult to enforce because of its intent requirement. Under the new legislation, all the same activities (plus new ones) are illegal, police would not need to “see” intent to make an arrest, and proof of such intent would no longer be required for any prosecution under the law.

As long as the above elements, including intent, are met, the police can make an arrest under this statute anywhere around a clinic

Because intent is impossible to “see,” it the old law made it difficult for the police to determine whether the law was being broken so arrests rarely occurred. Under the new law, if any illegal behavior occurs within 15 feet of a clinic, it would be clear the law is being broken.

If intent can be discerned and is proven, the prohibited conduct is an A misdemeanor, if not it is likely to be a B misdemeanor or violation

If prohibited conduct occurs within 15 feet of clinic premises, it would be an A misdemeanor, if not it would likely be a B misdemeanor or violation.

All arrests AND prosecutions require a complainant who was obtaining or rendering or assisting another in obtaining or rendering reproductive health services or counseling - “merely” blocking an entrance or exit does not violate the law.

Arrests can be made based on observation alone if a protestor is knowingly obstructing or blocking the premises of a clinic – no complainant is required

Clinics and premises in which they are located are protected, but premises is not defined

Premises would be specifically defined to include both parking lots and driveways, which is critically important for clinics in the outer boroughs and expands the 15 foot area.

No opportunity for a clinic to complain based on protesters’ activities.

Knowingly interfering with the operation of a clinic would be a violation of the law.

Peaceful protest is not unlawful No change.

Additional Sources of Information and Cases Regarding Reproductive Freedom

Sources

http://www.nyclu.org/content/legislative-memo-reproductive-health-act

http://reproductiverights.org/en/document/targeted-regulation-of-abortion-providers-trap-avoiding-the-trap

http://reproductiverights.org/en/project/parental-involvement-laws

http://reproductiverights.org/en/project/abortion-bans

http://reproductiverights.org/en/project/mandatory-delays-and-biased-counseling-for-women-seeking-abortions

http://reproductiverights.org/en/project/abortion-access-restrictions-on-public-funding-and-insurance-coverage

http://reproductiverights.org/en/project/a-year-in-review-2009-legislative-wrap-up

http://assembly.state.ny.us/leg/?default_fld=&bn=S05808%09%09&Summary=Y&Text=Y

Cases

http://www.aclu.org/reproductive-freedom/timeline-important-reproductive-freedom-cases-decided-supreme-court

Roe v. Wade http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=410&page=113

Gonzales v. Carhart http://www.supremecourt.gov/opinions/06pdf/05-380.pdf

Stenberg v Carhart http://supreme.justia.com/us/530/914/case.html

Casey v. Planned Parenthood of Southeastern Pennsylvania http://supreme.justia.com/us/505/833/

Faculty Biographies

Kathryn Kolbert

Kathryn Kolbert is Director of the Athena Center for Leadership Studies at Barnard College. A public-interest attorney, journalist, and visionary in the not-for-profit world, Professor Kolbert brings to Barnard an extraordinary depth of experience in collaborative leadership, educational programming, and civil-rights advocacy. She has been recognized by The National Law Journal as one of the "100 Most Influential Lawyers in America,” and by The American Lawyer as one of 45 public- interest lawyers “whose vision and commitment are changing lives." In 1992, Professor Kolbert argued the landmark case of Planned Parenthood v. Casey before the U.S. Supreme Court and has been credited with saving Roe v. Wade with what Jeffrey Toobin has called "one of the most audacious litigation strategies in Supreme Court history.”

Most recently, Professor Kolbert was the President and CEO of People for the American Way and People for the American Way Foundation, two of the nation’s premier civil rights organizations. During her tenure, People for the American Way's Political Action Committee was cited by the National Journal as the most successful advocacy group of the 2008 election cycle.

For ten years, Professor Kolbert oversaw a program on law and American life at the University of Pennsylvania’s Annenberg Public Policy Center. She was the executive producer of Justice Talking, an award-winning radio program distributed by NPR, and also directed an educational website called JusticeLearning.org, which received a Webby Award in 2005. Before she became a journalist, Kolbert enjoyed a long and distinguished career as a public interest attorney specializing in women’s reproductive rights. From 1992 to 1997, she directed domestic litigation and public policy programs for the Center for Reproductive Law and Policy, where she was a co-founder and vice president. She has also served as the State Coordinating Counsel of the ACLU's Reproductive Freedom Project in New York and as a Staff Attorney with the Women's Law Project and Community Legal Services in Philadelphia.

Professor Kolbert graduated cum laude from Temple University School of Law, and received her undergraduate degree from Cornell University’s School of Arts and Sciences. She has lectured at colleges and universities across the nation and is a frequent commentator on constitutional and women’s rights issues in the national media.

Bonnie Scott Jones

Bonnie Scott Jones is a Deputy Director in the U.S. Legal Program at the Center. During her decade with the Center, she has served as lead counsel in complex constitutional litigation challenging restrictions on reproductive healthcare, including Medicaid funding bans, abortion facility regulations, and reporting requirements for adolescent patients. She has focused on developing alternate legal theories for our cases, including arguments under the equal protection clause, the right to informational privacy, and the Fourth Amendment. Ms. Jones also has led various non-litigation projects, including the filing of a Citizen's Petition with the FDA on behalf of dozens of medical and health organizations seeking to make emergency contraception available over the counter. She has published articles and given presentations on the legal issues surrounding medical abortion, emergency contraception, and the targeted regulation of abortion providers. Prior to joining the Center, she was a law clerk, first for the Massachusetts Superior Court and then for the Honorable Mary Johnson Lowe of the U.S. District Court for the Southern District of New York. She is a graduate of Yale Law School and Sarah Lawrence College.

Carmina Bernardo

Carmina Bernardo is the Director of Health Care Planning & the New York City Family Planning Benefit Program (FPBP) Coordinator at PPNYC. She is responsible for outreach, training and technical assistance on the FPBP to health and social services providers in all five boroughs of New York City. She has been a PPNYC staff member since September 2000 and volunteered as a PPNYC Center Escort for six years. Prior to PPNYC, she worked at Women In Need, a nonprofit organization that provided housing and other services to homeless women with children. Carmina has Master’s degrees in both Public Health and Sociology.

Carmina also represents PPNYC on the Steering Committee for Medicaid Matters New York, a nonprofit, statewide coalition of 130 organizations that advocates on behalf of New York’s Medicaid program and the people it serves. She was also recently appointed to the Board of the New York Abortion Access Fund, a nonprofit organization that provides financial assistance to low-income women in New York State who cannot afford to pay for an abortion.

Sondra Goldschein

As the Director of Advocacy and Policy at the American Civil Liberties Union, Sondra Goldschein leads a team of policy experts who develop and implement state-based strategies to achieve change on the state and federal levels. From 2001-2009, Ms. Goldschein was the Director of State Advocacy for the ACLU Reproductive Freedom Project, where she provided legal analysis and strategic advice to ACLU affiliates and their coalition partners facing state legislation that impacts the provision of reproductive health care. In 2006 and 2008, she worked in South Dakota with the Campaign for Healthy Families to defeat an abortion ban at the ballot. In addition, she speaks frequently about threats to reproductive freedom and authored the publication, Religious Refusals and Reproductive Rights: Accessing Birth Control at the Pharmacy. Ms. Goldschein graduated magna cum laude from the University of Pennsylvania and received her J.D. with honors from the George Washington University Law School. Before joining the ACLU in 2001, she was an associate at the Chicago law firm of Katten Muchin Rosenman; she has also worked at the National Organization for Women, Rock the Vote, and the White House.