Anti-Abortion Movement (Update)

• Author: Alan E. Brownstein
• Pages: 93-94

Page 93

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

Page 94

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...