Summary:
HB 272 creates a new criminal offense in Delaware for “interference with reproductive health services or exercise of religion.” The bill is modeled in part on the federal FACE Act and would allow prosecution of individuals who interfere with access to reproductive health services or religious exercise.
Analysis:
HB 272 is modeled after the federal FACE Act, which regulates conduct such as force, threats, and physical obstruction directed at “reproductive health” facilities and places of worship.
At a foundational level, there is broad agreement that violence, force, and threats of force should never be protected under the banner of protest or advocacy. The primary concern surrounding this bill is not the prohibition of violence — it centers on how non-violent conduct may be defined and enforced under the statute.
The term “physical obstruction,” when paired with intent language tied to discouraging someone from obtaining or providing reproductive health services, raises interpretive questions. The addition of intent-based language creates the potential for enforcement to hinge not just on physical conduct, but on perceived purpose or outcome.
This creates real-world enforcement questions — particularly for those that stand as pro-life advocates — such as:
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Whether brief interactions on a public sidewalk could be interpreted as obstruction if the interaction is viewed as discouraging.
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Situations like offering literature, prayer, or asking a question could potentially constitute as a physical obstruction solely based on the action being done “in order to discourage.”
These concerns are heightened when compared to the federal FACE Act. The federal law includes Rules of Construction that clarify the statute cannot be interpreted to prohibit constitutionally protected speech, including peaceful sidewalk counseling and other expressive activities. HB 272 contains no comparable clarifying language protecting free speech activities.
Concerns are further amplified by the reality that the federal FACE Act has already been used in such a way that it has been weaponized against prolife advocates — even without similarly expansive intent language. Expanding statutory language beyond a federal model that already raises enforcement concerns increases the risk of broader and more subjective application.
The Main Concerns:
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The use of the phrase, “in order to discourage,” changes the legislation from being about conduct to being about intent.
- Peaceful protest, as that done by prolife advocates on the sidewalks, could potentially meet the threshold for a criminal penalty.
- Broad and subject language that puts First Amendment rights to free speech at risk are in danger of constitutional litigation.
HB 272 is a bill to oppose. The concerns presented in the House committee hearing were never answered, making the extent of the bill’s subjectivity rather evident. Concerns raised during the House committee hearing regarding subjective language and scope of enforcement were not clearly resolved. Notably, even some organizations supporting the bill acknowledged concerns related to statutory breadth and criminal penalty structure.
Additionally, the federal FACE Act already exists, alongside numerous existing criminal statutes addressing violent conduct, including assault and battery. Creating additional overlapping criminal frameworks with broader and less clearly defined language raises questions about necessity and risk of misuse.
Any legislation that intersects with First Amendment activity, criminal liability standards, and public-order enforcement has long-term implications for how civic engagement, protest activity, and public advocacy are regulated in Delaware. It must be handled with care.