People must be free to protest against abortion
Why I support the right of anti-choice activists to rally outside abortion clinics.
Does a 35-foot, protest-free ‘buffer zone’ around the entrances of reproductive healthcare facilities violate First Amendment guarantees of free speech?
That was the hard question before the US Supreme Court on 15 January, in McCullen v Coakley, challenging a 2007 Massachusetts law. It is not a new question for the court, which upheld a Colorado buffer-zone law over a decade ago. But violence against abortion clinics has abated since the 1990s (while state laws sharply restricting abortions have increased), and the make-up of the court has changed. It is now markedly more hostile to abortion rights, which makes it more sympathetic to free-speech claims by anti-abortion activists.
Ideally, neither support nor opposition to abortion should matter in a First Amendment challenge to a buffer zone; but, of course, they do. Anti-abortion activists become fierce defenders of free speech when anti-abortion speech is at issue. Pro-choice advocates become fiercely protective of speech regulation – especially when they consider the frightening history of violence against abortion clinics.
So when I characterise support for the Massachusetts buffer zone as essentially emotional, I mean no disrespect. For the pro-choice community, the buffer zone will always be linked to the fatal 1994 assault on Boston-area Planned Parenthood clinics that inspired it. Two clinic workers were murdered; five workers and volunteers were wounded. The memory of that attack – the horror and fear it evoked – remains, especially for clinic workers and volunteer patient escorts, who dread running a gamut of protesters if, or when, the 35-foot buffer is eliminated.
Still, I have persistently opposed the buffer zone, from the beginning, even in the near aftermath of the clinic murders. I plead guilty to hard-heartedness. In opposing the buffer zone, I’m demanding that patients and clinic workers tolerate anti-abortion activists who are bound to engage in some unruly, uncivil, and not necessarily arms-length protests. I’m arguing that a woman’s right to choose and obtain abortions, and other reproductive-health services, doesn’t diminish her obligation to tolerate extremely irritating, occasionally hysterical, and potentially invasive protesters.
Among pro-choice advocates, including those who consider themselves civil libertarians, this is, not surprisingly, a minority view, perhaps a very small one. The American Civil Liberties Union (ACLU) has retreated from its initial opposition to the buffer zone; its amicus brief in McCullen now characterises the Massachusetts law it once lobbied against as a ‘facially valid time, place and manner regulation’. But the ACLU’s opposition was always rather tenuous. The Massachusetts ACLU board was sharply divided over the first buffer-zone law enacted in 2000; as I recall, we opposed the law by a one-vote margin after a more than usually heated debate.
Legal arguments against the law came easily; from my perspective, its unconstitutionality was clear. But putting aside emotional support for it was hard. Violence against abortion clinics was becoming a very scary fact of life back then. Opposing a buffer zone asked too much of women, especially young women and teenagers seeking abortions in a climate of fear, supporters of the buffer zone argued. In fact, we were asking a lot of them, but no more than what civil liberty demands of us all – a certain stoicism. Besides, absent an expansive buffer zone, women would not be deprived of all legal protection. Federal and state laws prohibit protesters from impeding access to clinics, and, as Harvey Silverglate points out, Massachusetts has a longstanding penal law prohibiting harassment and disturbance of the peace.
These laws are all difficult to enforce, buffer-zone supporters successfully argued when the 2007 law establishing a 35-foot zone was enacted (after an emotional legislative hearing recalling the 1994 murders). The expanded buffer zone was, in effect, an enforcement mechanism. Considering the difficulties of pre-sorting legal and illegal protesters, the Massachusetts legislature prohibited all protests with potential for illegality. In other words, the 35-foot buffer zone is an intentional prior restraint of speech. The impulse to impose it was understandable, given the history of violence, but sympathy for the emotions underlying a law doesn’t make it constitutional.
If the Supreme Court strikes down or narrows the buffer zone, as it seems likely to do, it will not diminish abortion rights in Massachusetts. It will increase the trepidation with which some women seek or provide abortions and other services through Planned Parenthood. But in a free society, some measure of trepidation and some sense of insecurity are burdens to be borne. We should know that by now, living in the shadow of the surveillance state. We can’t always conquer fear; but, more often than not, liberty requires us to endure it.
Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of Free for All: Defending Liberty in America Today. (Buy this book from Amazon(UK).) This is an expanded version of a post originally published at the Atlantic.com.
Picture: Evan Vucci/AP/Press Association Images
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