Abortion Protesting

• Author: Neelam Patel, Emma Dozier, Isabella Oishi, and Ellie Persellin
• Pages: 121-133

ABORTION PROTESTING

EDITED BY NEELAM PATEL, EMMA DOZIER, ISABELLA OISHI, AND ELLIE PERSELLIN

I. INTRODUCTION 121

II. THE CONGRESSIONAL RESPONSE TO CLINIC PROTESTS: FREEDOM OF

ACCESS TO CLINIC ENTRANCES ACT OF 1994 (FACE) . . . . . . . . . . . . . 122

A. COMMERCE CLAUSE CHALLENGES TO FACE 125

B. FIRST AMENDMENT CHALLENGES TO FACE . . . . . . . . . . . . . . . . . 127

III. ABORTION PROTESTS AND THE COURTS: STATE INTERESTS AND THE FIRST

AMENDMENT ........................................... 130

A. CONTENT NEUTRALITY ................................ 131

B. NARROW TAILORING 131

C. ALTERNATIVE MEANS OF EXPRESSION 132

IV. CONCLUSION ........................................... 132

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I. INTRODUCTION

The Supreme Court in 1973 recognized abortion as an exercise of a fundamen-

tal privacy right grounded in the Constitution.

1

Abortion nevertheless remains

controversial, surrounded by emotionally charged debates that combine political,

gender, and healthcare issues.

2

See Quinnipiac University Poll, Sept. 10-13, 2021, POLLING REPORT, http://www.pollingreport.

com/abortion.htm (last visited Jan. 24, 2022) (Of those polled, sixty-two percent believed abortion

should be legal “in all” or “in most” cases, compared with thirty-two percent who believed it should be

illegal in all or most cases.).

Accordingly, people express their views on abor-

tion through various forms of advocacy and protest. The right to protest is at the

core of free speech, protected by the First Amendment.

3

The 1960s civil rights

movement used protest successfully to educate the public and ultimately bring

about changes in the law.

4

Abortion protesting differs from other forms of pro-

testing, however, because of the competition between the decisional privacy

rights guaranteed to abortion seekers and the free speech rights of abortion

protesters.

5

1. Roe v. Wade, 410 U.S. 113, 152, 154 (1973).

2.

3. See U.S. Const. amend. I (“Congress shall make no law . . . abridging freedom of speech.”).

4. The civil rights movement is referenced by both sides of the debate surrounding abortion

protesting. On one side, abortion protesters argue that it is an example of the good that can come from

protest movements challenging the government. On the other side, opponents characterize protests as a

form of force preventing women from getting abortions. The Freedom of Access to Clinic Entrances Act

of 1994 was modeled after the Civil Rights Act of 1968 and was intended to prohibit the use of force

against people exercising their constitutional rights. See Arianne K. Tepper, In Your F.A.C.E.: Federal

Enforcement of the Freedom of Access to Clinic Entrances Act of 1993, 17 PACE L. REV. 489, 500–02

(1997).

5. See Roe, 410 U.S. at 152. Although the right to privacy is not explicitly stated in the Constitution,

the Court has recognized a right to personal privacy, “or a guarantee of certain areas or zones of

privacy,” under the Constitution through a long line of decisions dating as far back as 1891. Id.

121