Abortion Protesting

• Author: Arielle Schechtman
• Pages: 253-264

ABORTION PROTESTING

EDITED BY ARIELLE SCHECHTMAN

I. INTRODUCTION.......................................... 253

II. THE CONGRESSIONAL RESPONSE TO CLINIC PROTESTS: FREEDOM OF

ACCESS TO CLINIC ENTRANCES ACT OF 1994 . . . . . . . . . . . . . . . . . . . . 255

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

FIRST AMENDMENT ...................................... 260

A. CONTENT NEUTRALITY ................................ 261

B. NARROW TAILORING ................................. 261

C. ALTERNATIVE MEANS OF EXPRESSION ..................... 262

IV. ABORTION PROTESTING POST-DOBBS .......................... 263

V. CONCLUSION ........................................... 264

I. INTRODUCTION

From the 1973 Roe v. Wade decision

1

until 2022, the Supreme Court recog-

nized abortion as an exercise of a fundamental privacy right grounded in the

Constitution. In June 2022, the Supreme Court announced its decision in Dobbs

v. Jackson Women’s Health Organization, overruling Roe and Planned

Parenthood v. Casey and holding that the Constitution does not confer a right to

abortion.

2

The Dobbs decision rested partially on the argument that abortion

remains controversial, surrounded by emotionally charged debates that combine

issues of politics, gender, and healthcare.

3

See Quinnipiac University Poll, Sept. 10-13, 2021, POLLING REPORT, https://perma.cc/2T8L-

XPYX (last visited Oct. 16, 2022) (noting that, of those polled, 62% believed abortion should be legal

“in all” or “in most” cases, compared with 32% who believed it should be illegal in all or most cases).

Accordingly, people express their

views on abortion through various forms of advocacy and protest.

The right to protest is at the core of free speech, protected by the First

Amendment.

4

The 1960s civil rights movement used protest successfully to edu-

cate the public and ultimately bring about changes in the law.

5

Abortion

1. Roe v. Wade, 410 U.S. 113, 152-53 (1973), overruled by Dobbs v. Jackson Women’s Health Org.,

142 S. Ct. 2228 (2022).

2. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 5 (2022).

3.

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

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

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

from protest movements challenging the government. On the opposition, pro-abortion activists

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).

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