First Amendment debate erupts over reproductive, transgender healthcare bill

Free-speech advocates are warning that legislation meant to protect reproductive and transgender healthcare — which is heading for a key vote in the Statehouse this week — contains a provision that unconstitutionally violates the First Amendment.

The concerns come as supporters of the bill say its passage is crucial, with the Trump administration increasingly acting to restrict or in some cases block access to both types of care. The Assembly is set to vote on the bill Thursday in Trenton.

At issue is one section in the 12-page bill that would punish people for speech that causes a “reasonable” person who provides or assists in reproductive or transgender healthcare to suffer emotional or reputational harm or mental anguish.

Ronald Chen is a law professor at Rutgers Law School who teaches constitutional law. That verbiage makes the bill “clearly unconstitutional” and should be deleted, Chen said.

“It is a bedrock holding of the First Amendment that speech, even speech that is intentionally hurtful in and of itself, is protected unless it amounts to a threat of violence or a threat of some imminent actual act that the law has the ability to forbid,” he said. “But something that causes emotional harm or distress in the perception of a ‘reasonable’ person? Who’s going to define what type of emotional harm is reasonable on this issue?”

He pointed to accusations of human trafficking that anti-abortion advocates have increasingly lobbed against people who facilitate abortions.

“Let’s say I say, ‘You’re a human trafficker!’ And that causes that person emotional harm. Can you use this statute?” Chen said.

Defining reasonable emotional harm is “an inherently impossible task, one which a court would certainly not want to get in the middle of,” Chen added. “And even if it did, I think it would say, ‘This is something that government cannot take sides on.’”

The New Jersey Press Association issued a statement Tuesday urging legislators to strike the section from the bill, warning it chills the free speech rights of both journalists and citizens and predicting it would not survive a court challenge.

“Language around the vague term ‘reasonable person’ enables broad claims to ostensibly protect reputations or hurt feelings,” said Brett Ainsworth, the association’s chairman. “For example, contrary to what the Constitution requires, the expansive language means a reporter could be civilly or criminally liable for publishing an article about the troubling practices of a reproductive healthcare services provider, even if the reporting was well-documented and fully accurate. A provider could simply assert his or her reputation or emotions were harmed by that truthful reporting.”

Senate President Nicholas Scutari (D-Union), one of the bill’s sponsors, declined to comment through a spokesperson.

Khadijah Silver, an attorney with Lawyers for Good Government who contributed to the bill’s drafting, told the New Jersey Monitor she was surprised to hear about the New Jersey Press Association’s concerns “at the 11th hour.” Silver, a civil rights attorney, said they worked closely with civil liberties advocates, academic experts, and the American Civil Liberties Union of New Jersey to ensure the bill protects the free speech rights of journalists and protesters.

“I’m very shocked that the association feels this sense of threat by a law that has literally the opposite intention. We want to make sure that if someone enters a space to receive healthcare that they do not experience harassment and threats that are of a heightened nature that would stop them from pursuing that healthcare,” Silver said.

Freedom of speech and freedom of the press are “paramount” to everyone involved in the creation of the bill, they added.

Attorney CJ Griffin has represented the New Jersey Monitor and other media outlets in public records fights and lawsuits. She said she supports the intent of the bill but agrees with Chen that the contested section cannot stand.

“I’m an LGBT person, so I’m sensitive to the fact that there’s a good intention behind it to protect people that are having a difficult time accessing reproductive health services and transgender care. But you can’t unconstitutionally punish speech that you don’t like. You have to adhere strictly to the Constitution, and like any bill that unconstitutionally punishes speech, it can end up backfiring on you yourself,” Griffin said. “I get that lawmakers have constituents that are pushing very hard for this. But their biggest constituent needs to be the Constitution.”

Anti-abortion advocates and conservatives also had objected to that section, arguing  it would criminalize praying and “sidewalk counseling” outside clinics.

The Assembly’s appropriations committee passed the bill along party lines Monday. The lower chamber’s bill is slightly different from the Senate’s version, with the Senate making such speech a crime and the Assembly making it a civil violation.

Either way, it’s unconstitutional, Chen said.

“The First Amendment protects speech in both the civil and the criminal context,” he said.

The legislation has long been a priority for LGBTQ+ organizations, and abortion rights groups have called for state action since the Trump administration stopped enforcing the Freedom of Access to Clinic Entrances Act when it comes to anti-abortion protesters. The 1994 federal law made it a crime to block or damage abortion clinics or assault or threaten providers and patients.