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Every person in the City and County of San Francisco ("City") has a fundamental right to privacy protected not only by the United States Constitution, but also explicitly guaranteed in Article I, Section 1 of the California Constitution. This right to privacy includes the right to access all legal health care services, including reproductive health care services.
Maintaining access to reproductive health care services is a matter of critical importance not only to individuals, but also to the health, safety, and welfare of all residents of the City. Efforts to harass, obstruct, or otherwise interfere with individuals seeking reproductive health care services may deter, delay, and even prevent individuals from obtaining necessary reproductive health care services. These efforts, which often include forcing patients to run a gauntlet of demonstrators near the entrances, exits, and driveways of reproductive health care facilities, or to confront intimidating demonstrators stationed at or near those entrances, exits, and driveways, also disrupt the ability of staff at reproductive health care facilities to devote their full efforts to providing health care services and divert valuable facility resources away from patients. Pedestrians, including patients and employees seeking to receive or provide health care, are often blocked or slowed on sidewalks adjacent to reproductive health care facilities by numerous signs lined up in the public right of way, and patients in facility waiting rooms are subjected to loud music and shouting directed inside the facility by demonstrators outside the door. These factors, including difficulty entering and exiting the facility as well as loud noise once inside the facility, can lead to increased patient stress that may affect the efficacy and complication rate of the medical care sought within. Actions that result in such obstruction, delay, and deterrence of patients, and diversion of reproductive health care facilities' staff and resources, undermine the City's interest in maintaining the public health, safety, and welfare, and in preserving its residents' constitutional right to privacy.
Standing on equal footing with the right to access health care services, including reproductive health care services, are the free speech and assembly rights of those who would gather and speak on matters of public concern. Under this Article, the Board of Supervisors previously attempted to balance these rights by prohibiting harassment, within 100 feet of an exterior wall of a health care facility, of individuals entering, exiting, or seeking services at a health care facility, with harassment defined as "knowingly approach[ing] another person within eight feet of such person, unless such other person 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." After that prohibition proved ineffective, the Article was amended to crate a "buffer zone" that prohibited individuals from remaining within 25 feet of a reproductive health care facility, with certain exceptions. The "buffer zone" was helpful in preventing harassment, delay, and deterrence of patients seeking vital health care services, and in particular reproductive health care services, and adequately prevented distraction and diversion of health care providers from their core mission of providing services in a safe and supportive environment. But in the wake of the United States Supreme Court decision in McCullen v. Coakley (2014) 573 U.S. ____ the validity of such buffer zones has been called into question. In light of the McCullen decision, with the enactment of Ordinance No. 230-14 this Article is again amended to balance the right to speak and engage in sidewalk counseling near reproductive health care clinics with the right to access constitutionally protected health care without fear of physical harm, harassment, or delay.
The Board of Supervisors hereby finds that Article 43 is necessary to promote the full exercise of the right to privacy by patients seeking vital reproductive health care services and is also necessary to maintain public health, safety, and welfare within the City. The Board of Supervisors further finds that this Article strikes a lawful and appropriate accommodation between the right to privacy and to access reproductive health care services and the needs of public health, safety, and welfare, on the one hand, and the rights of free speech and assembly, on the other.
Article 43 applies only to reproductive health care facilities, not health care facilities generally. In addition. Article 43 does not apply to licensed hospitals or to reproductive health care facilities owned or operated by licensed hospitals. This scope ensures the Article is narrowly tailored to address the significant governmental interests it serves, and leaves other health care facilities and locations available for speech. Individuals attempting to access reproductive health care facilities to obtain reproductive health care services have been subjected to harassing or intimidating activity from extremely close proximity, tending to hamper, delay or deter their access to those facilities and services and thus subverting their legal rights to seek and obtain legal health care services. The Board finds that reproductive health care facilities that are not part of a licensed hospital, and not owned or operated by a licensed hospital, are more vulnerable to such subversion of their patients' rights on account of the layout and design of their facilities and parking areas as well as their staff resources and deployment. Further, reproductive health care facilities not affiliated with hospitals commonly possess fewer resources for providing adequate security and safety to individuals seeking access to reproductive health care services. Thus, Article 43 provides narrowly tailored, content-neutral restrictions where they are most necessary to further the significant government interests the Article serves.
The Board finds that the modest scope of the prohibition on following and harassing individuals, impeding access, and making excessive noise in close proximity to reproductive health care facilities is necessary to ensure that patients may gain safe and unimpeded access to reproductive health care services, while allowing speakers to effectively communicate their messages to their intended audience. This prohibition applies equally to all, regardless of the content of their speech.
The Board further finds that intimidating behavior, including excessively loud demonstration activity, as well as following and harassing patients, staff, and other individuals around the entrances, exits and driveways of reproductive health care facilities can impede pedestrian and vehicle traffic and create safety hazards on the sidewalks and roadways, and that the limitations this Article imposes on aggressive and intimidating behavior will help promote safe and effective pedestrian and vehicle traffic flow around reproductive health care facilities.
The Board further finds that loud, harassing, and intimidating activities – independent of the content of those activities – conducted around the entrances, exits and driveways of reproductive health care facilities can adversely affect the physical and emotional health and well-being of patients seeking services at a reproductive health care facility. Noise control is particularly important around medical facilities during surgery and recovery periods. As has been noted by the Supreme Court, noise produced by protesters that can be heard within a clinic, may cause stress in the patients; this includes loud, disruptive noise heard during patient intake, surgical procedures and while recuperating in the recovery rooms. The Board finds that this Article will provide a protective space for patients and thereby help avoid those adverse health consequences.
The Board finds that this Article imposes content-neutral time, place, and manner restrictions on speech and assembly, which are narrowly tailored to serve significant government interests and leave ample alternative channels of communication.
This Article is not intended to create any limited, designated or general public fora. Rather it is intended to protect those who seek access to reproductive health care from conduct that violates their rights.