Members of Delaware’s pro-life community spoke out against proposed legislation in Dover that they say would infringe upon their First Amendment right to free speech.
Nevertheless, the House Judiciary Committee on Jan. 28 advanced House Bill 272, which would criminalize actions that impede a person’s ability to enter a reproductive health care facility or a house of worship.
A line in the bill that includes “discouraging” others from entering such a facility was the focal point of the debate. Critics say those simply encouraging women to seek an alternative to abortion could face criminal or civil liability under the proposed law.
Delaware Right to Life president Moira Sheridan said the bill’s intent is clear: to silence objectors with the threat of prosecution. HB 272 seeks to punish people for what they believe, she added. She said she believed the language is deliberately vague.
Nandi Gamble, the policy analyst for the Delaware Family Policy Council, said the federal Freedom of Access to Clinic Entrances Act already covers the conduct listed in HB 272, but the state legislation is crafted to cover “expressive conduct.”
Retired nurse Bess McAneny mentioned that Planned Parenthood has attempted to discourage pro-lifers for years with loud music and umbrellas. Women have changed their minds because they heard prayers and messaging from pro-lifers, McAneny said.
Donna Latteri, who leads the vigil outside the Planned Parenthood clinic in Dover, said she intends to keep “discouraging” women from having abortions. Now she’ll have to worry about getting fined for expressing her opinion, she said.
“We’ve never been violent,” she said. “We’ve never impeded them.”
HB 272, sponsored by Democratic north Wilmington Rep. Debra Heffernan, would codify into state law what already exists in the FACE Act. The act, signed in 1994, “prohibits the use or threat of force and physical obstruction that injures, intimidates or interferes with” a person seeking to obtain or provide health care, or to exercise his or her right of religious freedom at a house of worship.
Several representatives on the House Judiciary Committee and others who spoke during public comment pleaded for more clarity in the bill. Many maintained that their free speech would be criminalized.
The use of the word “discourage” in the text of the bill was particularly troubling for its opponents. It would be unlawful “by force or threat of force or by physical obstruction, intentionally injure, intimidate, or interfere with another person in order to discourage any person from obtaining or providing reproductive health services,” according to the text of the bill.
Heffernan opened discussion by acknowledging what she had read online about HB 272 and noted that, “Protest activities currently taking place will not be affected. It simply states that all violent acts are illegal.”
Dialog photo/Mike Lang
She said she was moved to write the bill after that U.S. Department of Justice issued a directive last January limiting enforcement of the FACE Act in most abortion-related cases. The conduct mentioned in the bill is not protected by the First Amendment, Heffernan said. Prayers and counsel “all remain protected,” she said.
She asked that the bill be released from committee so that she could work on the language to address questions raised at the committee meeting. That is what ultimately happened, but not before several speakers — legislators and members of the public alike — had their say.
Republican Rep. Valerie Jones Giltner said the bill could sow confusion.
“If the biological father is pleading and doing so loudly, that could be discouraging,” she said.
Republican Rep. Jeff Hilovsky noted that the penalties proposed in HB 272 are severe and would be subject to how a judge perceives a defendant’s actions. Just asking someone to look at literature on abortion could be offensive to some people, he said. Asking someone to reconsider terminating a pregnancy should not cost them $5,000 to $30,000.
Heffernan agreed to work with the state Department of Justice on the language in the bill while the General Assembly breaks for Joint Finance Committee meetings in February and early March.
The full house of representatives may consider HB 272 at a later date. This is the second year of the current General Assembly, so if the bill does not pass by the end of the session in June, it must be re-introduced.
