Accountability for Clinic Violence Act

 

Summary: The Accountability for Clinic Violence Act would allow reproductive health care providers and facilities the ability to sue individuals for interfering in the delivery of health care.

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.

Abortion clinic harassment frequently includes attempts to interfere with the operation of the health center. Such harassment includes planting unrelated medical waste in clinic receptacles, calling false reports in to state health officials to trigger an unnecessary inspection and divert clinic workers’ time, as well as a range of other activities designed to slow or prevent the provision of care.

Existing laws are insufficient to protect reproductive health care facilities. Although criminal law addresses some of the anti-abortion violence, it has brought few criminals to justice. In contrast, the purpose of tort law is to “promote overall social welfare” by “deter[ring] socially undesirable conduct” and to “compensate any actual losses of welfare flowing from such conduct.” By creating a new tort in statutory law related to reproductive health care, the state would provide an important tool to push back against the harassment and violence so commonly faced by these facilities.

Every person has the right to be free from harassment and violence while accessing or providing reproductive health care. The Accountability for Clinic Violence Act is intended to give reproductive health care providers an effective way to protect themselves, their patients, their clinics, and their staffs from the harassment and protest activity they experience on a daily basis. It allows a health care provider to bring a suit against the person or group who caused the harm and hold them accountable for their actions, both through financial damages and through injunctive relief preventing them from doing so again.


Model Legislation

SECTION 1. SHORT TITLE

This Act shall be called the “Accountability for Clinic Violence Act.”

SECTION 2. FINDINGS AND PURPOSE

(A)  FINDINGS—The legislature finds that:

1)      Every person has the right to be free from harassment and violence while accessing or providing reproductive health services.

2)      Each year, health care facilities that offer reproductive health care are subjected to harassment and violence. Over the years, hundreds of these facilities have experienced bombings, arsons, and other attacks. Employees and physicians have been targeted, physically injured, and in some cases killed. More than 700 facilities across the country have been blockaded.

3)      Health care providers have been stalked, threatened, and harassed in person, on the phone, and through the mail. The violence and harassment associated with reproductive health care clinics makes it difficult and sometimes dangerous for patients to access care.

4)      Although harassment and violence directed at individuals and clinics clearly causes harm and interferes with access to critical reproductive health care, individuals who have perpetrated these actions on others are rarely held accountable to the victims for their actions.

5)      The purpose of tort law is to “promote overall social welfare” by “deter[ring] socially undesirable conduct” and to “compensate any actual losses of welfare flowing from such conduct.”  By creating a new tort in statutory law, this bill gives a tool to providers and patients who have been victims of harassment and violence, who can use this to help ameliorate the harm caused to them and to deter those who consider perpetrating such actions on others.

(B) PURPOSE—This law is enacted to provide civil justice to the victims of harassment and violence.

SECTION 3. PREVENTION OF ANTI-ABORTION HARASSMENT AND VIOLENCE

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

(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)      “Health care provider” means any person, corporation, facility or institution licensed or otherwise authorized by the state to provide health care services, including, but not limited to, any physician, coordinated care organization, hospital, health care facility, dentist, nurse, optometrist, podiatrist, physical therapist, psychologist, chiropractor or pharmacist and an officer, employee or agent of such person acting in the course and scope of employment or agency related to health care services.

5)      “Health care facility” means any office, building, or other place in which health care services are provided by a health care provider, whether or not the facility is licensed by the state.

6)      “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.

7)      “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.

8)      “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.

9)      “Reproductive health care” means abortion, contraception, infertility treatment, prenatal care, miscarriage management, treatment for STIs, as well as counseling for all of these services.

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 health care provider, 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 4. 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 5. 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 6. EFFECTIVE DATE

This Act shall take effect on XXXX 1, 2016

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