The Charleston City Council is currently considering a proposed ordinance that would, among other things, make it a crime for an individual on a public sidewalk to engage within 8 feet of other members of the public in certain ways if they are within 100 feet of a healthcare facility.  

This proposed ordinance is aimed at ensuring that people have access to abortion care free from obstruction.  The ACLU-WV has reviewed the proposed ordinance and has issued the following statement:

There are two clear competing constitutional rights at issue here—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.  We appreciate the City’s efforts to strike that delicate balance in drafting an ordinance that 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 ordinance is drafted in broad language to apply to all healthcare facilities, and is not narrowly tailored to address a specific record of past harassment, intimidation, obstruction or violence at a particular healthcare 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.

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.

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