CHAPTER 16. ADOPTING ACCESS TO REPRODUCTIVE HEALTH CARE FACILITIES*

*Code reviser's note: Ord. 2214 added this chapter as Chapter 4-15. This chapter has been editorially renumbered to prevent numerical duplication.

4-16.01 Title and Purpose.

This chapter shall be known as the "access to reproductive health care facilities ordinance." The City Council finds that every person in the City of Walnut Creek has a basic and fundamental right to privacy protected by the United States Constitution and explicitly guaranteed in California's Constitution, Article 1, Section 1, including the right to seek and obtain all health care services permitted under the laws of the State of California. Central to this right is the need to secure access to all reproductive health care services. Access to these services is a matter of critical importance not only to the individual, but also to the health and welfare of all residents of the City of Walnut Creek and the region. Intentional efforts to harass an individual or prevent that individual from exercising his or her right to seek and obtain reproductive health care services are therefore contrary to the interests of the people of Walnut Creek.

In adopting the ordinance codified in this chapter, the Walnut Creek City Council recognizes both the fundamental constitutional right to assemble peaceably and to demonstrate on matters of public concern, as well as the right to seek and obtain health care services. This chapter promotes the full exercise of these rights and strikes an appropriate accommodation between them.

This chapter is not intended to create any limited, designated, or general public fora. Rather it is intended to protect those who seek access to constitutionally protected reproductive health services from conduct which violates their rights while also protecting the rights of people who gather outside of reproductive health care facilities in the City to speak on matters of public concern. (§2, Ord. 2214, eff. 5/5/22)

4-16.02 Definitions.

Eight (8) Feet shall be measured from any extension of the body of the individual seeking access to, passage from, or services within the reproductive health care facility, and/or the exterior of any occupied motor vehicle, to any extension of the body of, or any sign or object held by another person.

Follow means to physically pursue an individual once that individual has indicated verbally or non-verbally they do not wish to be approached or engage in conversation.

Gathering means two (2) or more individuals.

Harass means to engage in a course of conduct directed at a specific person or persons that alarms, seriously distresses, torments, or terrorizes the person. Harassment does not include, among other things, quiet, consensual conversation conducted from a stationary position. Harass includes, but is not limited to:

(a) Approaching a person once that person has indicated they do not want to be approached or engage in conversation, except as necessary to enter or exit the reproductive health care facility;

(b) Following a person if that conduct is intended or is likely to cause a reasonable person to fear bodily harm to oneself or to another, or damage to or loss of property;

(c) Intentionally touching or causing physical contact with a person without that person's consent;

(d) Using violent or threatening gestures toward a person.

Intimidate means making a true threat directed to a person or group of persons with the intent of placing that person or group of persons in fear of bodily harm or death.

Obstruct means rendering ingress to or egress from a reproductive health care facility providing reproductive health services, or rendering passage to or from a reproductive health care facility, unreasonably difficult or hazardous. Obstruct includes, but is not limited to, intentionally blocking or interfering with the safe or free passage of a pedestrian or occupied vehicle by any means, such as (a) intentionally causing a pedestrian to take evasive action to avoid physical contact, or (b) placing signs, tables, or chairs on the sidewalk such that the flow of pedestrian traffic is restricted or obstructed.

Reproductive Health Care Facility refers to a facility licensed pursuant to Chapter 1 (commencing with Section 1200) of Division 2 of the Health and Safety Code or any other facility that provides reproductive health services, exclusively or in addition to other health services. Reproductive health care facility does not include a licensed hospital or a clinic or other facility owned or operated by a licensed hospital.

Reproductive Health Care Services refers to all medical, surgical, counseling, referral, and informational services related to the human reproductive system.

True Threat means a statement in which the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular person or group of persons regardless of whether the person actually intends to act on the threat. (§2, Ord. 2214, eff. 5/5/22)

4-16.03 Interference With Access to Reproductive Health Care Facilities Prohibited.

(a) The following is prohibited:

(1) Within one hundred (100) feet of the entrance of a reproductive health care facility, it shall be unlawful to willfully and knowingly approach within eight (8) feet of any person seeking to enter or exit the reproductive health care facility, or any occupied motor vehicle seeking to enter or exit the parking lot of such a facility, without the consent of such a person or vehicle occupant, for the purpose of harassing or intimidating such person or vehicle occupant;

(2) Obstruct access to or departure from any entrance to a building or driveway of a reproductive health care facility; or

(3) Fail to comply with a dispersal order as described in Section 4-16.04(c).

(b) Subsection (a) of this section applies during, one (1) hour before, and one (1) hour after, a reproductive health care facility's posted business hours.

(c) Nothing in this chapter shall preclude the enforcement of other state, federal, or municipal laws, including but not limited to those related to sidewalk and street obstructions, or prohibited noises. (§2, Ord. 2214, eff. 5/5/22)

4-16.04 Enforcement.

(a) Criminal Enforcement. Any person who violates Section 4-16.03(a) shall be deemed guilty of a misdemeanor. Upon a first conviction for violation of Section 4-16.03(a), the person shall be incarcerated for up to ninety (90) days, or fined up to five hundred dollars ($500.00), or both. Upon a subsequent conviction for violation of Section 4-16.03(a), the person shall be incarcerated for up to one hundred eighty (180) days, or fined up to one thousand dollars ($1,000.00), or both.

(b) Civil Enforcement. An aggrieved person may enforce the provisions of this chapter by means of a civil action in the courts of the State of California. An aggrieved person includes any reproductive health care facility that is the site of a violation of this chapter. Any person who violates any of the provisions of this chapter shall be liable to the aggrieved person for special and general damages, but in no case less than one thousand dollars ($1,000.00), attorneys' fees and the costs of the action. In addition, punitive damages may be awarded in a proper case.

(c) Dispersal Order. A law enforcement official may order the immediate dispersal of a gathering that continues to violate Section 4-16.03(a) after a verbal warning. A verbal dispersal order issued pursuant to this subsection shall include the following statements: (1) the gathering has substantially violated Section 4-16.03(a) by harassing, intimidating or obstructing access to or departure from the reproductive health care facility; and (2) each member of the gathering shall, under the penalty of arrest and prosecution, immediately disperse and cease to stand or be located within at least one hundred (100) feet of an entrance to the reproductive health care facility. If the dispersal order is written and posted at the location of the reproductive health care facility, the order shall remain in effect until one (1) hour after the close of business of the reproductive health care facility. This subsection shall apply during, one (1) hour before, and one (1) hour after, the posted business hours of a reproductive health care facility.

(d) Nothing in this chapter shall preclude any person from seeking any other remedies, penalties or procedures provided by law. (§2, Ord. 2214, eff. 5/5/22)