ANTI-ABORTION MOVEMENT (Update)

In the 1980s and 1990s, protests by abortion opponents directed at clinics and physicians providing abortion services supplied a powerful impetus to doctrinal change in our understanding of the first amendment. Anti-abortion activities ranged from "sidewalk counseling" of women seeking to enter clinics to residential picketing of the homes of abortion providers; aggressive expressive assaults against clinic patients and staff; mass protests; obstruction of clinic entrances; and threats and acts of violence. In response, clinics sought, and courts issued, injunctions creating protest-free buffer or bubble zones around the entrances of clinics. Local authorities enacted ordinances banning residential picketing or codifying clinic buffer zones. At the national level, Congress adopted the Freedom of Access to Clinic Entrances Act to protect clinic staff and patients from force, threats of force, and acts of obstruction.

As a general matter, expressive protests that do not involve unlawful conduct such as blocking entrances or assault are part of the robust debate on public policy issues that the First Amendment protects. Anti-abortion protests, however, raise special concerns that arguably justify more aggressive intervention and regulatory restrictions. While angry speech that causes anxiety and emotional distress does not lose its protected status, loud, accusatory demonstrations directed at the women seeking abortion services increase the medical risks of abortion procedures.

The state's interest in protecting the health of women receiving abortion services was not the only justification offered for restricting anti-abortion protests. The line between protected, hurtful, and critical speech directed at individuals who do not want to hear a protestor's message and proscribable harassment has never been an easy one to draw, but at some point the following and badgering of patients and staff as they walk to and from clinics crosses that line and becomes subject to sanction. The state has a legitimate interest in enabling women to make medical choices free from harassment.

Moreover, a woman has a constitutional right to elect to have an abortion. When the exercise of rights comes into conflict, constitutional compromises sometimes have to be structured to allow sufficient "breathing room" for both protected interests. Courts and legislatures have attempted to take competing speech and privacy rights into account in regulating expressive activities outside of clinics.

Finally, the frequency and duration of anti-abortion protests have made them difficult to monitor and control. Unless police are stationed continually outside of clinics, harassment and obstruction can continue until police arrive, abate while authorities are present, and then resume after they depart. Regulations that have tried to prohibit only unprotected conduct, while permitting protestors to continue to engage in protected activities, have seemed easy to circumvent, and almost impossible to enforce effectively.

Lower courts and local authorities accepted many of these rationales in establishing buffer zones around clinics that prohibited protestors from engaging in virtually any expressive activity within a short radius of a clinic's entrance. The Supreme Court, however, focused almost exclusively on the enforcement justification in upholding the constitutionality of injunctions creating relatively narrow buffer zones in Madsen v. Women's Health Center, Inc. (1994) and Pro-Choice Network of Western New York v. Schenck (1997). To the Court, patients and staff were entitled to secure access to clinics. Accordingly, if lower court orders prohibiting obstruction and harassment were repeatedly violated by protestors, courts had the constitutional authority to issue more restrictive injunctions that precluded even nonobstructive expressive activities.

Injunctions that restricted anti-abortion protests beyond the narrow parameters of limited buffer zones, however, were held to violate the freedom of speech. Moreover, the Court seemed to suggest that a pattern of prior obstruction and harassment by protestors was an essential precondition to the establishment of a buffer zone. Women's health concerns and right of privacy did not appear to be of sufficient weight to justify limits on the expressive activities of protestors.

Alan E. Brownstein
(2000)

Bibliography

Brownstein, Alan E. 1996 Rules of Engagement for Cultural Wars: Regulating Conduct, Unprotected Speech, and Protected Expression in Anti-Abortion Protests. UC Davis Law Review 29:1163–1216.

Jacobs, Leslie Gielow 1996 Nonviolent Abortion Clinic Protests: Reevaluating Some Current Assumptions about the Proper Scope of Government Regulations. Tulane Law Review 70:1359–1443.

Weinstein, James 1996 Free Speech, Abortion Access, and the Problem of Judicial Viewpoint Discrimination. UC Davis Law Review 29:471–543.