Abortion Protest Cases

In three cases, the Supreme Court has considered the rights of anti-abortion protestors outside abortion clinics. The cases have pitted free-speech values against the fundamental right to abortion declared by the Supreme Court in Roe v. Wade, 410 U.S. 113 (1973).

In the first of the cases, Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994), anti-abortion protestors had repeatedly violated a federal court injunction against blocking access to a Florida abortion clinic and had harassed patients and doctors at the clinic and at their homes. After this defiance, the federal district court entered a broader injunction against the protestors. The new injunction prohibited demonstrators from: (1) protesting within 36 feet of the clinic; (2) making excessive noise near the clinic by shouting and using sound devices; (3) exhibiting images observable by patients within the clinic; (4) approaching patients within 300 feet of the clinic unless the patient voluntarily indicated a desire to be approached; and (5) demonstrating within 300 feet of the home of any clinic employee.

The government defended the restrictions as necessary to protect a woman’s freedom to seek medical services; to safeguard public safety and order; to keep open the free flow of traffic on streets and sidewalks; to protect private property rights; and to preserve residential privacy. The protestors complained that the restrictions were content based (and thus especially suspect under the First Amendment) and unduly restricted their free-speech rights.

The Supreme Court first held that the injunction was not content based merely because it aimed at the protestors. The nature of an injunction is to restrict only those subject to it, the Court held, and the purpose of the injunction was only to address past violations of the court’s orders.

Next, the Court held that the government’s interests were significant and that parts of the injunction were narrowly tailored to serve those interests. First, the Court upheld the 36-foot buffer zone as applied to the public property around the clinic but not the private property along the side and back of the clinic where there had been no showing of interference. Second, the Court upheld the ban on excessive noise near the clinic on the ground that medical recovery requires some tranquility. But the Court struck down the rest of the injunction as too broad.

The Supreme Court’s next encounter with the freespeech rights of abortion-clinic protestors came three years later in Schenck v. Pro-Choice Network, 519 U.S. 357 (1997). In that case, several abortion clinics in upstate New York had been subjected to largescale blockades in which protestors marched, stood, knelt, or lay in clinic parking lots and doorways. Smaller groups of protestors, called ‘‘sidewalk counselors,’’ crowded, pushed, jostled, yelled, and spat at women entering the clinics. Police officers on the scene attempting to control the protests were also harassed verbally and by mail.

A federal district court issued an injunction against fifty individuals and three organizations (including Operation Rescue). One part of the injunction banned demonstrating within 15 feet of clinic entrances, including doorways and parking lots. The Supreme Court upheld this ‘‘fixed buffer zone’’ on the ground that it was necessary to prevent anti-abortion protestors from blocking entrance to and exit from the clinic.

The second part of the injunction allowed antiabortion protestors to approach a patient to make ‘‘nonthreatening’’ conversation with her, but required such sidewalk counselors to withdraw a distance of 15 feet from a patient if she requested them to cease counseling her. The Court struck down this ‘‘floating buffer zone’’ as burdening more speech than necessary to serve the government’s interests.

The third clash of abortion and free-speech rights came in Hill v. Colorado, 530 U.S. 703 (2000). Unlike the first two cases, Hill involved a statute—not a court injunction—restricting protests around abortion clinics. The Colorado law in Hill made it unlawful within the vicinity of a health care clinic for anyone to ‘‘knowingly approach’’ within 8 feet of another person, without that person’s consent, ‘‘for the purpose of passing a leaflet to, displaying a sign to, or engaging in oral protest, education, or counseling’’ with that person. Unlike the floating buffer zone in Schenck, however, the statute did not require counselors to move away if a patient walked into the 8-foot zone.

The Court upheld the statute against a First Amendment free-speech challenge by anti-abortion protestors. The main issue was whether the statute was content based and thus subject to strict scrutiny, or content neutral and thus subject to lesser scrutiny. The majority held that the statute was a contentneutral regulation of the place where speech may occur. The Court observed that the statute applied equally to all demonstrators, regardless of viewpoint, and was not adopted because of the state’s disagreement with the message of the anti-abortion protestors. Furthermore, the Court said, the state’s interests in unimpeded access to health care and patient privacy were unrelated to the content of speech.

Justices Scalia, Thomas, and Kennedy dissented vigorously, as they had in the previous two Abortion Protest Cases. Scalia’s dissent argued that the statute was content based because it prohibited only ‘‘protest, counseling, or education,’’ but not other speech like social or random conversation. Thus, whether a person could be prosecuted for violating the 8-foot buffer zone ‘‘depends entirely on what he intends to say once he gets there.’’ The majority replied that the statute applied equally to all who engage in ‘‘protest, counseling, or education’’ speech without further regard to content.

While the dissenters agreed that the state could prohibit protestors from physically blocking access to a clinic, they chided the majority for approving a restriction on ‘‘peaceful, nonthreatening, but uninvited speech’’ within a distance of 8 feet from a patient entering or exiting an abortion clinic. Scalia accused the majority of distorting free-speech jurisprudence so that it could ‘‘sustain this restriction on the free speech of abortion opponents.’’ ‘‘Does the deck seem stacked?’’ he asked. ‘‘You bet.’’

DALE CARPENTER

Cases and Statutes Cited

• Hill v. Colorado, 530 U.S. 703 (2000) 
• Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994) 
• Roe v. Wade, 410 U.S. (1973) 
• Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997)