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18-9-122. Preventing passage to and from a health care facility - engaging in prohibited activities near facility

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(1) The general assembly recognizes that access to health care facilities for the purpose of obtaining medical counseling and treatment is imperative for the citizens of this state; that the exercise of a persons right to protest or counsel against certain medical procedures must be balanced against another persons right to obtain medical counseling and treatment in an unobstructed manner; and that preventing the willful obstruction of a persons access to medical counseling and treatment at a health care facility is a matter of statewide concern. The general assembly therefore declares that it is appropriate to enact legislation that prohibits a person from knowingly obstructing another persons entry to or exit from a health care facility.

(2) A person commits a class 3 misdemeanor if such person knowingly obstructs, detains, hinders, impedes, or blocks another persons entry to or exit from a health care facility.

(3) No person shall knowingly approach another person within eight feet of such person, unless such other person consents, for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person in the public way or sidewalk area within a radius of one hundred feet from any entrance door to a health care facility. Any person who violates this subsection (3) commits a class 3 misdemeanor.

(4) For the purposes of this section, health care facility means any entity that is licensed, certified, or otherwise authorized or permitted by law to administer medical treatment in this state.

(5) Nothing in this section shall be construed to prohibit a statutory or home rule city or county or city and county from adopting a law for the control of access to health care facilities that is no less restrictive than the provisions of this section.

(6) In addition to, and not in lieu of, the penalties set forth in this section, a person who violates the provisions of this section shall be subject to civil liability, as provided in section 13-21-106.7, C.R.S.

History

History.
Source: L. 93: Entire section added, p. 400, 1, effective April 19.

Annotations

ANNOTATION

Law reviews. For article, The Law of the Sacred Cow: Sacrificing the First Amendment to Defend Abortion on Demand, see 79 Den. U.L. Rev. 91.

Constitutionality in light of U.S. supreme court decision. Based upon the holding of the U.S. supreme court in Schenck v. Pro-Choice Network (519 U.S. 357, 117 S. Ct. 855, 137 L. Ed. 2d 1 (1997)), this section is a content-neutral, generally applicable statute supported by a valid governmental interest in public safety issues and is narrowly tailored to serve that interest and thus does not violate the first amendment to the federal constitution.Hill v. City of Lakewood, 949 P.2d 107 (Colo. App. 1997).

Section is constitutional as a reasonable time, place, and manner restriction on free speech. This provision is sufficiently narrowly drawn to further a significant government interest. Hill v. Thomas, 973 P.2d 1246 (Colo. 1999), affd sub nom. Hill v. Colo., 530 U.S. 703, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000).

The eight-foot zone set forth in subsection (3) allows a speaker to communicate at a normal conversational distance. Additionally, the statute allows the speaker to remain in one place, and other individuals can pass within eight feet of the protester without causing the protester to violate the statute. Finally, there is a knowing requirement that protects speakers who thought they were keeping pace with the targeted individual at the proscribed distance from inadvertently violating the statute. Hill v. Colo., 530 U.S. 703, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000).

Subsection (3) does not violate the right to free speech because it applies to areas protected by the first amendment, such as streets and public sidewalks. Hill v. City of Lakewood, 911 P.2d 670 (Colo. App. 1995), cert. granted, judgment vacated, and case remanded to Colorado court of appeals for further consideration in light of Schenck v. Pro-Choice Network of Western New York (519 U.S. 357, 117 S. Ct. 855, 137 L. Ed. 2d 1(1997)), 519 U.S. 1145, 117 S. Ct. 1077, 137 L. Ed. 2d 213 (1997), affd on other grounds, 949 P.2d 107 (Colo. App. 1997), affd, 973 P.2d 1246 (Colo. 1999), affd sub nom. Hill v. Colo., 530 U.S. 703, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000).

Subsection (3) is not improper content based regulation because it imposes the same restrictions on protestors, whether they be in favor of or against abortion. Hill v. City of Lakewood, 911 P.2d 670 (Colo. App. 1995), cert. granted, judgment vacated, and case remanded to Colorado court of appeals for further consideration in light of Schenck v. Pro-Choice Network of Western New York (519 U.S. 357, 117 S. Ct. 855, 137 L. Ed. 2d 1(1997)), 519 U.S. 1145, 117 S. Ct. 1077, 137 L. Ed. 2d 213 (1997), affd on other grounds, 949 P.2d 107 (Colo. App. 1997), affd, 973 P.2d 1246 (Colo. 1999), affd sub nom. Hill v. Colo., 530 U.S. 703, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000).

Subsection (3) is content neutral. First, it is not a regulation of speech. Rather, it is a regulation of the places where some speech may occur. Hill v. Colo., 530 U.S. 703, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000).

Second, it was not adopted because of disagreement with the message being conveyed. This conclusion is supported not just by the Colorado courts interpretation of legislative history, but more importantly by the state supreme courts holding that the statutes restrictions apply equally to all demonstrators, regardless of viewpoint, and the statutory language makes no reference to the content of the speech. Hill v. Colo., 530 U.S. 703, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000).

Third, the states interests in protecting access and privacy, and providing the police with clear guidelines, are unrelated to the content of the demonstrators speech. Government regulation of expressive activity is content neutral if it is justified without reference to the content of regulated speech. Hill v. Colo., 530 U.S. 703, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000).

Subsection (3) is not unconstitutional because: It advances a significant governmental interest; it does not burden speech more than is reasonably necessary; and reasonable alternatives to oral communication are available. Hill v. City of Lakewood, 911 P.2d 670 (Colo. App. 1995), cert. granted, judgment vacated, and case remanded to Colorado court of appeals for further consideration in light of Schenck v. Pro-Choice Network of Western New York (519 U.S. 357, 117 S. Ct. 855, 137 L. Ed. 2d 1(1997)), 519 U.S. 1145, 117 S. Ct. 1077, 137 L. Ed. 2d 213 (1997), affd on other grounds, 949 P.2d 107 (Colo. App. 1997), affd, 973 P.2d 1246 (Colo. 1999), affd sub nom. Hill v. Colo., 530 U.S. 703, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000).

Subsection (3) does not constitute a prior restraint on free speech. There is no authority to extend the doctrine so that a private citizen is limited with respect to her right to determine whether to permit others to confront her concerning medical care. Hill v. City of Lakewood, 911 P.2d 670 (Colo. App. 1995), cert. granted, judgment vacated, and case remanded to Colorado court of appeals for further consideration in light of Schenck v. Pro-Choice Network of Western New York (519 U.S. 357, 117 S. Ct. 855, 137 L. Ed. 2d 1(1997)), 519 U.S. 1145, 117 S. Ct. 1077, 137 L. Ed. 2d 213 (1997), affd on other grounds, 949 P.2d 107 (Colo. App. 1997), affd, 973 P.2d 1246 (Colo. 1999), affd sub nom. Hill v. Colo., 530 U.S. 703, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000).

Subsection (3) allows every speaker to engage freely in any expressive activity communicating all messages and viewpoints subject only to the narrow place requirement imbedded within the approach restriction. Hill v. Colo., 530 U.S. 703, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000).

The regulations of subsection (3) only apply if the pedestrian does not consent to the approach. Private citizens have always retained the power to decide for themselves what they wish to read, and within limits, what oral messages they want to consider. This statute simply empowers private citizens entering a health care facility with the ability to prevent a speaker, who is within eight feet and advancing, from communicating a message they do not wish to hear. Further, the statute does not authorize the pedestrian to affect any other activity at any other location or relating to any other person. These restrictions thus do not constitute an unlawful prior restraint. Hill v. Colo., 530 U.S. 703, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000).

Subsection (3) is not overbroad. The fact that the coverage of a statute is broader than the specific concern that led to its enactment is of no constitutional significance. What is important is that all persons entering or leaving health care facilities share the interests served by the statute. Hill v. Colo., 530 U.S. 703, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000).

In addition, subsection (3) does not ban any messages, nor does it ban any signs, literature, or oral statements. It merely regulates the places where communications may occur. Hill v. Colo., 530 U.S. 703, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000).

Subsection (3) is not unconstitutionally vague. Subsection (3) contains a scienter requirement. The statute only applies to a person who knowingly approaches within eight feet of another, without that persons consent, for the purpose of engaging in oral protest, education, or counseling. The likelihood that anyone would not understand any of those common words seemed quite remote to the court. Hill v. Colo., 530 U.S. 703, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000).