Abortion Protesting

AuthorNeelam Patel, Emma Dozier, Isabella Oishi, and Ellie Persellin
Pages121-133
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 allor in mostcases, 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, 50002
(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

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