A bill (A2218) advancing through the New Jersey legislature would create a new crime of “interference with reproductive health care services” and allow abortionists and the attorney general to sue pro-life sidewalk counselors. In a state where the U.S. Supreme Court recently rebuked officials for the “chilling effect” their actions had on the First Amendment freedoms of pro-life pregnancy centers, the bill represents “a deeply concerning infringement on constitutional rights,” said Joy Stockbauer, policy analyst for FRC’s Center for Human Dignity.

The bill effectively creates a state version of the federal Freedom of Access to Clinic Entrances (FACE) Act, although it only protects abortion facilities, not churches, and it far exceeds the scope of the federal law. According to the bill’s latest text, “A person is guilty of interference with reproductive health care services” for any bodily injury, attempted injury, physical obstruction, intimidation, or property damage committed “with the purpose to unlawfully restrict another’s access to or receipt or provision of reproductive health care services or to intimidate the person from becoming or remaining a patient, provider, volunteer, or assistant of reproductive health care services.”

This language covers not only abortionists but also abortion doulas, pro-abortion volunteers, and the women seeking abortion as well. A sidewalk counselor could conceivably be charged under this broad language if she even once begged a pregnant woman on her way into an abortion facility to reconsider.

The bill defines “interference with reproductive health care services” as a crime of the fourth, third, or second degree, based upon the level of physical harm. Of course, there are vanishingly few incidents when abortionists or their clients face physical violence or physical intimidation, making the bill’s more extreme prohibitions unnecessary. But omitting the more extreme prohibitions would render it implausibly inane and expose its true purpose: shutting down any pro-life presence at abortion facilities.

In a separate section, the bill goes even further, allowing “an aggrieved person” to “bring a civil action” against anyone who “commits an act of interference with another person’s reproductive health care services” — the alleged crime created in the previous section. Because the burden of proof is heavier in a criminal prosecution than in a civil trial, this creates a way to punish pro-lifers even if criminal charges against them cannot be proven.

In a previous version of the bill, the “aggrieved person” was also allowed to bring a civil action for conduct that “causes a reasonable person to suffer damage to the person’s business or personal reputation, financial harm, or pain and suffering, mental anguish, or emotional harm on the basis that the person, entity, or facility provides, volunteers, assists with, or receives reproductive health care services.”

This provision captured a broad range of behaviors that have nothing to do with violent obstruction. A declaration that abortion takes an innocent unborn life, whether on a website, billboard, or handmade sign, could reasonably cause damage to the business or reputation of an abortionist, not to mention financial harm.

Furthermore, impassioned appeals to the consciences of either abortion workers or women seeking abortion could have been interpreted as inflicting “mental anguish, or emotional harm.” Indeed, the point of an appeal to conscience is that the mental anguish a person’s conscience causes them will be powerful enough to induce a change in behavior. In effect, this provision prohibited anyone from saying abortion is wrong, because saying it out loud may cause someone engaged in the wrongful practice to feel bad about their actions.

Post-abortive women already experience mental and emotional distress. In a 2011 analysis published in the British Journal of Psychiatry, “women who have abortions are 37 percent more likely to suffer from depression and 34 percent more likely to have anxiety, compared to women without abortions,” as the Charlotte Lozier Institute summarized the data in 2023 congressional testimony.

“While this law protects abortionists from ‘mental anguish’ and ‘emotional harm,’ it does nothing to protect the mothers who will suffer both for the rest of their lives if no one intervenes to encourage them to choose life,” Stockbauer argued. “Pro-life advocates sidewalk counsel women outside of abortion facilities every day, not to harm them, but to save them and their unborn children from those who would. Countless people are alive today because their mothers had the opportunity to be ministered to in this way.”

The work of sidewalk counselors, who seek to present women with full information to avoid a decision they will regret, is done out of love, and the short-term mental anguish their words may cause can help women avoid much greater anguish in the future. Under this provision, post-abortive women would have been able to explain away the mental anguish caused by their abortion by blaming it on pro-lifers who tried to persuade them to make a better choice.

Pro-life organizations in New Jersey sounded the alarm over how this bill would impact sidewalk counselors. “The threat of prosecution is enough to silence lawful speech,” complained New Jersey Right to Life director Marie Tasy. “And that happens to be exactly what this bill is designed to accomplish.” Center for Garden State Families founder Gregory Quinlan agreed, “We could be 100 feet away and just praying” and be found in violation, he told the New Jersey Monitor.

“Those who work in and uphold the abortion industry do not deserve special protection from the opinions and speech of others,” Stockbauer insisted.

Despite the free speech concerns, a parallel version of the bill (S2260) passed the New Jersey Senate by a vote of 23-12 on May 28. Last Monday, a New Jersey House Committee modified the bill (A2188) to match the Senate version before approving it in a 9-4 vote. The House bill had four sponsors and 38 additional cosponsors, which already gives it majority support in the 80-seat House.

However, the potential free speech impacts were so obvious that they even drew concern from mainstream and progressive organizations. Media lawyer CJ Griffin said the bill “punishes any speech — even truthful speech and opinions — if it harms someone’s reputation or hurts their feelings.” The New Jersey Press Association warned that “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.”

Even the state ACLU chapter found the provision “concerning,” according to legislative director John Butler. “From our point of view, we want protections for abortion providers and clients, but we also need to protect people’s constitutional rights to speech. I don’t think that is what the bill drafters were aiming at.”

This charitable interpretation of the bill’s intention runs counter to the track record of New Jersey’s pro-abortion leadership for the past several years. In April, the U.S. Supreme Court confirmed the right of pro-life pregnancy centers to bring a federal lawsuit after the New Jersey attorney general subpoenaed their donor records. The Court unanimously held that the New Jersey attorney general’s actions unconstitutionally chilled the pregnancy centers’ First Amendment rights.

A separate section of A2188 would empower the New Jersey Attorney General’s Office to enforce either the criminal prohibition or the private civil action through a public civil lawsuit, essentially giving the office free rein to bring all sorts of lawsuits and investigations against pro-life activists.

However, as much as the attorney general’s office may want free rein to target pro-life speech, New Jersey House leaders proved receptive to the free speech concerns of progressive allies. On Thursday, the full House amended the bill by voice vote to cut the provision that allowed abortionists to sue based on “damage to a person’s business or personal reputation, financial harm, or pain and suffering, mental anguish, or emotional harm.”

It’s good to see that there are some measures too extreme for even progressive legislatures, but that one change does not exonerate the bill. It still targets pro-lifers, empowering the state to pursue Biden-style FACE Act persecutions, and the civil actions open up a pathway for punishment requiring a lower standard of evidence. Rather, the very fact that such a measure won approval from the Senate and a House Committee shows just how committed pro-abortion politicians have become to advancing the industry at all costs.

On another front, the bill displays further pro-abortion bias by giving abortionists effective immunity from administrative and malpractice insurance penalties — no matter how egregious their conduct. “Notwithstanding any provision of law to the contrary, a [medical licensing] board shall not impose any penalties pursuant to this section on the holder of a certificate, registration, or license based solely on the holder engaging in reproductive health care activity,” it proclaimed.

Furthermore, “An insurer authorized to transact medical malpractice liability insurance in this State shall not take any adverse action including but not limited to, loss or denial of coverage, or imposition of sanctions, fines, penalties, or rate increases, against an insured licensed, certified, or registered in this State for reproductive health care activity based on the fact that the patient receiving the service is a resident of a state where those services are illegal.”

This effectively expands the state’s abortion shield laws. If a New Jersey abortionist mails abortion pills to a state like Texas or Louisiana, in violation of both the federal Comstock Act and that state’s laws, New Jersey medical boards and malpractice insurers may take no adverse action.

The act of sending abortion pills by mail violates the most basic safeguards for the use of mifepristone, such as verifying that the unborn child is not past 10 weeks’ gestation, that the woman does not have an ectopic pregnancy, and that the pills are not being forced upon a woman by her abuser. Thus, the prohibition on malpractice insurers taking any notice of the action is highly poignant.

New Jersey’s bill expanding the pro-abortion enforcement of laws must still obtain approval from both the House and the Senate (after the House’s amendment), but there is little reason to believe it will fail to win approval with New Jersey’s solid pro-abortion majorities.