CHARLESTON — After reviewing a Charleston ordinance aimed at preventing protestors from approaching people entering the state's only abortion clinic, the American Civil Liberties Union (ACLU) of West Virginia said there are competing constitutional rights at issue — the right to free speech and the right to access reproductive services.
"Neither right supersedes the other and any policies must strike a delicate balance between the right to engage in peaceful protest on public streets and the right to seek an abortion without being subject to harassment, intimidation, obstruction, or violence," the ACLU said in a released statement.
Following complaints of harassment at the clinic, Charleston City Council members are considering the ordinance, which would prevent anti-abortion protesters from approaching people entering the clinic, without those people’s consent, to attempt to shame them or dissuade them from seeking abortions.
The proposed ordinance, which does not prevent activists from protesting, passed City Council’s Rules and Ordinance committee with a 6-1 vote on Wednesday afternoon.
The proposed ordinance states that any person who knowingly blocks or impedes entry to a health care facility or health care facility’s parking facility is guilty of a misdemeanor offense and could be punished with up to 30 days in jail and fined up to $500.
They could also receive those same penalties for knowingly approaching within eight feet of another person, unless that person consents, to pass a leaflet, display a sign, or engage in “oral protest, education, or counseling” in the public right-of-way or sidewalk, within 100 feet of the entrance to the health care facility.
Kevin Baker, city attorney, said the ordinance is modeled on a Colorado statute that was upheld by the U.S. Supreme Court in Hill v. Colorado in 2000.
The Supreme Court found the ordinance struck a balance. It preserved the right to protest — protesters could still hold signs, and offer pamphlets — but at the same time, the court said the government’s “police powers allow it to protect its citizens’ health and safety, and may justify a special focus on access to health care facilities and the avoidance of potential trauma to patients associated with confrontational protests.”
More recently, in 2014, the Supreme Court struck down a Massachusetts law that created a 35-foot buffer zone around clinics, on First Amendment grounds. Protesters couldn't engage in any "sidewalk counseling" at all in that area.
Baker said he still thinks the Charleston ordinance is lawful because people are still allowed to protest around the clinic, just not approach people who don't want to be approached.
The ACLU of West Virginia said they appreciated the City of Charleston's efforts to strike a delicate balance in its ordinance, which largely mirrors the statute considered and deemed constitutional by the Supreme Court in Hill v. Colorado.
"However, on the whole, we believe the proposed ordinance does raise constitutional concerns," the ACLU said. "The ordinance is drafted in broad language to apply to all health care facilities, and is not narrowly tailored to address a specific record of past harassment, intimidation, obstruction or violence at a particular health care provider.
"As a result the current ordinance could, for example, prohibit striking hospital workers from peacefully handbilling outside their workplace. Similarly, the proposed ordinance could prohibit a political candidate from attempting to engage voters on a busy street corner near a doctor’s office."
Sharon Lewis, executive director of the Women’s Health Center in Charleston, has said protesters have been blocking the entrance and driveway to the clinic with their bodies, name-calling, and attempting to identify volunteers who escort women into the clinic, so that they can call those people by name and intimidate them. One protester has been posting a live-stream to Facebook.
Lewis also said protesters have been telling women entering the clinic “where they’re going when they leave this world” and propping up a six-foot cross on the sidewalk, “trying to impose their religious beliefs on everybody else.”
The ACLU of West Virginia concluded its statement by saying, "The decision to end a pregnancy is personal, and every person is entitled to make that decision without unnecessary interference. It is incumbent on the City to protect the right to clinic access by stopping trespassing or attempts to otherwise block access to facilities. At the same time, any attempts to remedy interference with the fundamental right to access abortion care must not be so broad as to encompass protected activity or peaceful protest."
Police Chief Opie Smith has said he is in support of the ordinance, noting that abortion heightens emotions and pointing to public safety. Ten to 20 protesters have been visiting the clinic regularly, he said.
Anne Lofaso, a WVU law professor, meanwhile, sees the ordinance as vulnerable to lawsuits by anti-abortion groups and said it may be struck down on First Amendment grounds. She noted the Supreme Court is made up of different people than it was in 2000.
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