L.L. 2009/024

Enactment date: 4/20/2009

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.

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[Consolidated provisions are not included in this Appendix A]

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

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.