Westchester moves to protect clinic access as abortion care threatened in other states

"Imagine yourself sitting in your doctor's office, and people swarm in, shutting you down, holding you hostage. We can’t call this a simple threat. It’s more than that." - Legislator Catherine Borgia

Nancy Cutler
Rockland/Westchester Journal News

Westchester legislators are weighing a law to make clear where protesters’ rights end and health care protections begin at reproductive health clinics, including those that provide abortion care.

The move comes as New York reproductive health providers expect a wave of people coming to the state as others restrict abortion care. They are also bracing for the anti-abortion protesters who are almost certain to follow.

The Reproductive Health Care Facilities Access Act would ban restricting anyone from entering or exiting a reproductive healthcare facility, following or harassing a person within 25 feet of a facility and damaging or interfering with the operation of a facility.

Legislator MaryJane Shimsky, left and Chairwoman Catherine Borgia talk about the Reproductive Healthcare Facilities Access Act at the Michaelian Office Building in White Plains on Wednesday, June 8, 2022.

It would also ban certain protest activities within a eight-foot "floating zone" around people going in and out of the facility and within a 100-foot radius zone from the door of the facility. 

Violators would face a misdemeanor with up to $1,000 in fines and 6 months in jail.

The target of the protest, including clinic employees and volunteers, could pursue civil claims. So could the county.

"If you are going to cause specific harm to someone, yes you are going to get sued." said Legislator MaryJane Shimsky, co-sponsor of the Reproductive Health Care Facilities Access Act. "That's what happens in tort law." 

She pointed to the "legal chaos" of SB8, the Texas law that allows citizens to sue anyone who performs or facilitates an abortion after six weeks. "Why can’t you do that for someone who trespasses in one of these clinics," Shimsky said. "You can sue them. That’s all there is."

Board of Legislators Chair Catherine Borgia, the bill’s co-sponsor, put it in more stark terms: "Imagine yourself sitting in your doctor's office, and people swarm in, shutting you down, holding you hostage. We can’t call this a simple threat. It’s more than that." 

While the proposal would be just for the county, Shimsky sees it as a model. "We hope this legislation gets attention and other places take it up, even on state level."

Borgia said that state legislators are paying attention.

A public hearing is slated during the Board of Legislators meeting at 7 p.m., Monday . To find information on commenting for the session or watching virtually, go to https://westchesterlegislators.com/meetings.

Time is now

The U.S. Supreme Court majority appears poised to use a Mississippi abortion case to overturn Roe vs. Wade, which set the precedent for abortion access in the United States. If that happens, likely this month, states would be free to further restrict abortion access or ban it in some or all cases.

Those seeking abortion care from states where it's restricted or banned are expected to seek care in states like New York, which codified abortion protections in the 2019 Reproductive Health Act.

That means abortion protesters are likely to head to New York, too. 

If Roe goes: With protests up at clinics, advocates fear new attacks

New York: $35 million fund for abortion services, security at reproductive health centers

Demise of Roe: Here's what that means for New York

"In a post-Roe world, it will get busier," said Borgia. "This is a state where you can have access to reproductive health care."

Westchester, with several reproductive healthcare providers who offer abortion care, plus access to lodging and transportation services, can expect a swell of such activity.

Planned Parenthood Hudson Peconic President and CEO Vincent Russell supports the Westchester bill's effort to create clear boundaries for protesters and ensure the safety of staff members and patients.

Russell agrees that overruling Roe could embolden protesters. "I would rather be proactive rather than reactive after an incident and harm's been done," he said.

PPHP provides reproductive health care in Westchester, Rockland and Suffolk counties. "We've had incidents where protesters have entered onto our property and we've had to have police involved," Russell said. "It's common for protesters to block the roadway into and out of facility."

"No patient should have to go through and be harassed to seek health care. This will provide a little bit more of a safety zone," Russell said of the proposed Reproductive Health Care Facilities Access Act. "We agree the First Amendment should be protected. ... Protesters still have a right to protest."

Russell said patients' rights need to be considered, adding, "People aren't harassed going to a primary care providers office, they shouldn't be harassed seeking reproductive health care either."

Red Rose incident

Shimsky said there remains a lack of legal clarity when it comes to protecting abortion access. She points to 2021 incident at a White Plains reproductive health care clinic as proof of the problem. 

In 2021, three men from a group called Red Rose Rescue entered All Women's Health & Medical Services. They handed out roses to women and told them there were alternatives to abortion.

Their lawyer said the men were peaceful and instructive.

When told to leave, laid down and had to be carried out by White Plains police, according to court records. 

"Police couldn’t figure out what to charge them with," Shimsky said. "They were actually released and had to be charged weeks later."

They were found guilty of trespassing.

Sentencing for the three is expected later this month.

Westchester District Attorney Mimi Rocah ready to work with legislators to strengthen laws regarding healthcare clinic protests.

“When conduct crosses the line of protected First Amendment activity and shifts to criminal conduct, we will use all of the laws at our disposal to prosecute anyone interfering with a woman's right to access reproductive health services, including abortion," said Westchester District Attorney Mimi Rocah, whose office prosecuted the case. "I stand ready to work with legislative leaders to strengthen our laws to help train our law enforcement partners in this area.”

Tried before

The concept of a clinic access bill is not new. The Westchester Board of Legislators passed similar legislation in 2012, but then-County Executive Rob Astorino vetoed it and there wasn’t enough support at the time for an override.

The legislation was revisited in 2018, but board’s law department had advised legislators that without serious misconduct ongoing at facilities in Westchester, the law was in jeopardy of being struck down if it was challenged in court.

But actions like the 2021 clinic incident demonstrate the need, Shimsky and Borgia said. 

“The climate has changed and become more dangerous,” Borgia said. “When we started to talk to providers we heard there has been an uptick in harassment to patients and staff. We are now talking about groups that are using the First Amendment to swarm the door, get into the facility and shut it down.” 

Astorino, who is now running in the Republican gubernatorial primary, stands by his earlier veto.

"State and federal law is already clear: Protesters have the right to peacefully protest and clinic visitors have the right to unimpeded access," he said. "There is no need for new legislation in this area."

Former Westchester County Executive Rob Astorino, who is now seeking the GOP ticket for governor, vetoed a 2012 version of The Reproductive Health Care Facilities Access Act.

Astorino criticized the idea of attaching civil penalties, which he said "would have a chilling effect on First Amendment rights and lead to an abuse of power by the government." 

Borgia said legislators honed the bill’s language to preserve free speech rights, building on feedback they received after the bill's 2012 veto. “Everything that’s in our provision has been challenged and upheld” in courts, Borgia said. “We do feel that we have very strong case right now.” 

Shimsky said that is Reproductive Health Care Facilities Access Act is unprecedented, but so are the tactics of protesters.

"The clinic invasion law is new because the tactic is new," Shimsky said. "I cannot begin to stress how inherently dangerous this method is. We’re not talking about culture warriors, we’re talking about people trying to get to a doctor’s appointment."

Borgia said a law on the books could act as a deterrent.

"We want to make sure people can go in and get health services unmolested," said Borgia, a Democrat. "The time has come for this legislation. We do want to take a stand and say, that kind of behavior is not allowed here."

Staff writer Asher Stockler contributed to this report.

Nancy Cutler writes about People & Policy. Click here for her latest stories. Follow her on Twitter at @nancyrockland