Charleston City Council passed an ordinance aimed to deter protesters from harassing people entering health care facilities.
The ordinance passed Monday night with 21 yeas, five nays and one person abstaining.
The ordinance, proposed by Councilwoman Caitlin Cook, was a controversial one. It was drafted after the city police department received reports of protesters yelling at people entering the Women's Health Center and blocking entries. However, placing regulations on those protesting and picketing brought into question whether the law was constitutional.
It has two prohibitions: a person may not block the entrance and exit of a health care facility and they may not approach a person or provide pamphlets or advice without their consent.
If someone is within 100 feet of the front door of the facility they may protest, but they may not come within 8 feet of someone to advocate a certain message.
Violators could be found guilty of a misdemeanor offense and, upon conviction, may be confined for up to 30 days or fined up to $500, or both confined and fined, according to the proposed ordinance.
Sharon Lewis, Executive Director of The Women's Health Center of West Virginia spoke during public comment about what volunteers and patients have faced at the clinic.
“We’ve been under siege for months by a group of right-wing fanatics; most of them do not live in this city or county,” Lewis said. “Patients and volunteers are regularly accosted, yelled at harassed threatened and video-taped by the ant-abortion extremesit that occupy the sidewalks by our building.”
The council chamber was packed with protesters from both sides. Lewis was booed from the anti-abortion advocates at the meeting. Mayor Amy Shuler Goodwin cut off the crowd.
“Let me make it clear if didn’t before. This council is trying to be thoughtful and reflective and want to hear everyone. That’s extremely disrespectful and rude. I will not have it in this chamber. Both sides, enough,” Goodwin said.
A woman who worked at the clinic told accounts of watching protester flagging down patients so they could video them and tell them not to get abortions. The have also used megaphones and speakers to harass the patients, the clinic worker said during public comment.
Derrick Evans protests outside the facility every Wednesday and Thursday, said the new ordinance will not stop him. Evans along with other anti-abortion protesters gather outside of Women's Health Center of West Virginia in protest of the facility. They come with signs and a large white cross that reads, “60,000,000 babies killed, we remember.” Evans videos the protest where protesters can be heard heckling those who enter the facility.
“I do not honor local liberal laws. I follow the U.S. Constitution,” Evans said in an interview. “We will be there [at the health center] on Wednesday.”
He also said he'll take legal action if necessary.
“If they want to impede on our U.S. Constitution and freedom of speech, we will see them in court,” Evans said. “We’ll take it all the way to the U.S. Supreme Court if that’s what we have to do.”
Many councilmembers went to the facility to see the protests for themselves. Council member Courtney Persinger, a Republican representing Ward 14, described it as an eye opening experience.
Councilwoman Caitlin Cook said she went to the clinic to talk to people on “both sides of the issue,” but upon arrival she was even able to enter the lot because people were standing in the entryway.
However, many still expressed concerns regarding the ordinance.
Some council members had reservations about the ordinance because of the costs it could accrue for the city. Brady Campbell, a republican representing Ward 19, inquired how the new ordinance would affect the city’s jail bill.City Attorney Kevin Baker said there is no way to determine an exact number, but he doesn’t think it would have a significant effect. He added the city budgets a certain amount of money to put toward the jail bill.
Some council members brought forth questions about how the bill would be enforced. However, the lingering questions among opponents of the ordinance centered around the first amendment.
The proposed ordinance was modeled on a Colorado statute that was upheld by U.S. Supreme Court in 2000.
“It’s important to realize the route we have been going has been upheld in the highest court in the land,” Cook said.
But more recent cases would suggest the ordinance may not be upheld if it were to go the Supreme Court today, West Virginia University Law Professor Bob Bastress said.
In 2015 the Court argued the Reed v. Town of Gilbert, Arizona case. Based on the Court’s findings in this case, the ordinance would fall under content discrimination, Bastress said.
“Whether you violate this ordinance depends on whether you engage in counseling protest or education and to make that determination you have to look at what’s being said,” Bastress said.
Baker said the city will change the law in the future if it is deemed unconstitutional by the Supreme Court.
“Well some have asserted the Supreme Court can change the law in the future this follows the law as it stands,” Baker said.
The ACLU raised concerns in a statement claiming the ordinance was too general. As of now, the ordinance applies to any health care provider.
“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 healthcare provider,” the statement said.
Baker said the language in the ordinance was left open to all health care facilities because he was trying to follow the Colorado law as closely as possible. He also added it's about access to all types of health care.
However, one consequence of the vague language is it could hinder other types of peaceful protest, the ACLU statement said. For instance, it could prohibit striking hospital workers from peacefully hand billing outside their workplace.
“The key would be they are not blocking people from getting into the facility, and if they wanted to approach people they would just need to be 100 feet away from the front door,” Baker said.
One of the main requirements is that person protesting acts knowingly, Baker said. For instance, a politician passing out pamphlets on busy street corner would be not be violating the ordinance because he or she is not knowingly affecting someone's access to healthcare, he said.
The ordinance as a whole does not raise constitutional issues. The part regarding not allowing to block entrances or exits is within the city’s rights.
“The state has all kinds of leeway in protecting the ability of people to enter and leave healthcare facilities,” Bastress said.
Ultimately, Baker said the ordinance was crafted to balance two competing rights, First Amendment rights and a patient’s right to receive care unbothered.
“No right is absolute,” Baker said. “The people leaving and entering have a right to privacy.”