Anti-Abortion Protest and Freedom of Speech

2011-11-01 10:55:03

The concept of a ‘‘buffer zone’’ was first raised in the 1990s. It was based on two things: increasingly violent and intrusive protests by anti-abortion forces and clinic actions to try to keep protesters a certain distance away from the clinics. In response, the groups filed counterchallenges in court, stating that their First Amendment rights to freedom of speech were being violated.

The central issue became one of how to differentiate between noninjurious and nonthreatening speech, which could be allowed under the First Amendment, and actions that effectively prohibited clients from entering clinics, which were outlawed under the federal FACE Act of 1994. The first Supreme Court case on the issue was Madsen vs. Women’s Health Center, 512 U.S. 753 (1994). The case started with Operation Rescue protests at the Melbourne, Florida, Aware Woman Center for Choice in 1991. These consisted of street marches and slogans shouted through bullhorns, directly confronting clients, following clinic staff home to demonstrate against them, and blockading clinic doors (which was outlawed by the 1994 FACE Act). When the clinic applied to the state court for an injunction against such protests, the court granted it and limited demonstrators to participating outside a ‘‘buffer zone’’ consisting of a 36-foot radius from the clinic; they were also prohibited from making loud noises or displaying graphic images near the facility. It also prohibited protesters from approaching patients who were within 300 feet of the facility and from demonstrating within 300 feet of any clinic employee’s residence, thus upholding a type of buffer zone at employees’ homes as well. The court specified that it did not seek to limit protestors’ First Amendment rights (Mezey, 2003, 266–268). This decision was upheld by the Florida Supreme Court in 1992.

Operation Rescue and other groups appealed the case to the Supreme Court, arguing that the restrictions were based on the content of the speech and therefore impermissible under the First Amendment. In its 1994 Madsen decision, the Supreme Court upheld some of the previous restrictions and struck others down. The significance of the case was found largely in its formulation of a new test for restricting public speech by court injunction based on a heightened level of constitutional scrutiny—that of a ‘‘significant’’ government interest. The Court did not grant Operation Rescue’s desire for the highest level of constitutional scrutiny, strict scrutiny, to be used. However, the fact that the level of constitutional scrutiny was raised from the lowest, minimal level meant that speech restrictions would be harder to uphold in the future.

The new test entailed that an injunction (restriction or prohibition) against speech would be upheld unless it prevented more types of speech than necessary to promote a significant government interest ( In this decision, the Supreme Court upheld the 36-foot buffer zone, provided it did not affect private property, and the prohibitions against loud noise within earshot of the clinic and within 300 feet of employees’ homes. On the other hand, the decision struck down the previous prohibitions on displaying images outside clinics. It also significantly narrowed the restrictions concerning the 300-foot buffer zones around clinics and employees’ homes, overturning the prohibitions against approaching clients within 300 feet of the clinic or ‘‘peacefully picketing’’ within 300 feet of employee residences. Overall, the Court stated that its decision did not impermissibly restrict speech but rather ‘‘the activities of the demonstrators who had repeatedly violated the earlier injunctions’’ (Mezey, 267). According to this formulation, the Court was not restricting the content of the speech and not privileging one point of view over another.

Court challenges since Madsen have focused on the type of activity to be prohibited, the type of buffer zone allowed (whether a fixed parameter or a ‘‘floating’’ one related to protesters’ following a moving car or individual), and the question of whether unrelated, privately owned property such as a business or house may be included in a clinic’s buffer zone against the owner’s will. The 1997 Supreme Court case, Schenk vs. Pro-Choice Network of NY, 519 U.S. 357 (1997), focused on the first two sets of questions. This case concerned protests by Operation Rescue and affiliate organizations against physicians and clinics near Rochester and Buffalo and included the types of blockades and obstructions rendered illegal by the FACE Act of 1994. The other question had to do with the fact that the federal district court had issued an injunction against protesters’ actions within a fixed 15-foot buffer zone away from the clinic as well as against their activity within a 15-foot radius from a moving car or person.

Based on the Madsen test, the Supreme Court found in this case that the fixed buffer zone did not ‘‘burden any more speech than necessary to serve the government interests of ensuring public safety and order and protecting women’s freedom to seek abortions or other health-related services.’’ On the other hand, the floating buffer zone was overly broad because it could include those ‘‘simply lining the sidewalks to demonstrate peacefully’’ and thus was struck down.

In the Supreme Court case of Hill vs. CO, 530 U.S. 703 (2000), the Court upheld a buffer zone passed by the Colorado Legislature in 1993 requiring protesters to remain 8 feet away from clients who were within 100 feet of the clinic. Anti-abortion activists challenged the statute three times on First Amendment grounds, losing at the Court of Appeals level in Colorado in 1997, the Colorado Supreme Court in 1999, and the U.S. Supreme Court in the 2000 case. In upholding the prohibition, the Supreme Court stated that it was not a regulation of speech but rather a ‘‘regulation of the places where some speech may occur.’’ The Court also emphasized that the law applied to all demonstrators, regardless of viewpoint, and that other types of institutions may also show government interest in protection from protest, including schools, polling places, and courthouses.


References and Further Reading

  • Mezey, Susan Gluck. Elusive Equality: Women’s Rights, Public Policy, and the Law. Boulder, CO: Lynne Rienner Publishers, 2003
  • Websites of the First Amendment Center,, and the Center for Reproductive Rights,