Non-violent abortion protests
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While some anti-abortion protests take on violent forms, the bulk of anti-abortion movement focuses on a series of physically non-violent tactics but possibly emotionally violent acts such as intimidation or harassment.
Praying outside of abortion providers is one of the most common tactics employed by abortion protestors. Protestors station outside of clinics, generally in groups, and pray silently or out loud for the fetuses that are terminated by abortion. While groups generally claim that they are motivated by good-will, some scholars believe that the tactic often serves to intimidate and shame patients at these clinics.
Sidewalk counseling is a common tactic employed by anti-abortion protestors. Protestors station outside of or near entrances to clinics, and attempt to convince patients entering not to complete the procedure. Common tactics used by counselors include offering information about alternatives to terminating a pregnancy such as adoption or keeping the baby, community resources, and fetal development information.
The frequency with which clinics are occupied by sidewalk counselors vary widely among clinics and on a state-by-state basis. Joseph Scheidler, author of Closed: 99 Ways to Stop Abortion and the authority anti-abortion protesting, calls sidewalk counseling “the single most valuable activity that a pro-life person can engage in.” According to Schedler, pro-life counseling “comes between the baby who is scheduled to be killed and the doctor who will do the killing." Scheidler recommends that anti-abortion groups should place two or three counselors at each clinic on a regular basis. The presence of those counselors will theoretically act as a deterrent to women arriving their appointment, who will see the protestors and return home, drive to another clinic, or reschedule. Without any patients, the clinics will be forced out of business, which will inherently protect more unborn children. While counselors claim to be peaceful and simply offering help to patients, some academics have referred to these counseling tactics as intimidation, rather than as a form of persuasion.
Legal restrictions against intimidation tactics
Following the assassination of Dr. David Gunn and the unprecedented number of violent clinic protests and blockades that followed, Congress passed the Freedom of Access to Clinic Entrances (FACE) Act, which was signed into law by President Clinton in May 1994. FACE makes it a federal crime to use force, the threat of force, or physical obstruction to prevent women from seeking, obtaining, or providing reproductive health services.
A few states and municipalities have also enacted legal restrictions against intimidation tactics of anti-abortion protestors. The two main types of legal restrictions are buffer zone laws and bubble zone laws. Buffer zone laws limit how close demonstrators are permitted to get a facility. Bubble zone laws create floating areas around specific people (like clinic staff and their patients), and prohibit protestors from coming within a certain distance of those individuals.
Colorado: A 1999 statute passed by the Colorado state legislature creates a 100-foot buffer zone around a clinic and an 8 foot floating bubble zone around any person entering the clinic. The law prohibits any person outside those boundaries from engaging in oral protest, education, or counseling, or passing a leaflet or displaying a sign to another person without their consent. These tactics could be anything from passing a leaflet or displaying a sign to, or engaging in oral protest, education, or counseling with another person without their consent. This statute was the first law placed restrictions on non-violent forms of anti-abortion protest.
Montana: In 2005, the Montana state legislature passed HB 324, which established a 36-foot buffer zone around reproductive health clinics and prevents protestors from coming within eight feet of anyone entering or leaving healthcare facility.
Massachusetts: In 2007, the Massachusetts state legislature passed a bill that would create a 35-foot buffer zone around entrances, exits, and driveways of abortion clinics. The law does not include a floating buffer zone provision. The goal of the legislation was to “prevent interference with patients’ ability to access clinics and to protect them from being lectured, abused, or harassed by anti-choice activists.”
Legal challenges to anti-abortion protestors
Many of these laws have been challenged on the grounds that they are restrictions on protestors’ First Amendment right to free speech and free assembly.
Hill v. Colorado
Colorado’s buffer law statute was the first to be challenged in the courts. This first challenge was petitioned by Leila Hill and a group of sidewalk counselors who claimed that the law violated her group’s First Amendment right to free speech. The district judge dismissed the case, citing Ward v. Rock Against Racism in its ruling that the buffer law established that the government could enforce laws that imposed content-neutral time, place, and manner restrictions that were narrowly tailored to serve a significant government interest.
The case eventually reached the US Supreme Court. In a 6–3 decision, the Court ruled that law’s regulations on speech-related conduct are constitutional. Writing for the majority, Justice John Paul Stevens argued that the statute “is not a regulation of speech. Rather, it is a regulation of the place where some speech may occur.” While the statute prohibits speakers from approaching unwilling listeners, it does not require a speaker to move away from a passerby, or place a restriction on the content of a message. The law simply makes it more difficult to offer unwanted advice to persons entering or leaving medical facilities, and adequately balances the need to protect medical patients from unwanted communication, with the need to leave open sufficient channels of communication for protestors. Writing in dissent, Justice Scalia argued that demonstrators “don’t want to protest abortion. They want to talk to the women who are about to get abortions and try to talk them out of it. I think it distorts it to say that what they want to do is protest abortion.” Since the conversations are consensual and simply attempts to offer guidance, the law is an unconstitutional restriction on the First Amendment.
McCullen v. Coakley
In 2007, Eleanor McCullen, a member of Operation Rescue, filed a lawsuit against the Commonwealth of Massachusetts citing that the state’s buffer zone law was a violation of the First Amendment protection of free speech. The federal district court held that while the law placed a restriction on the time, place, and manner of the speech, the law was constitutional “because it was content-neutral and still left adequate, if not perfect, alternative means of communication.” The Court of Appeals affirmed the lower courts ruling, adding that Hill v. Colorado had already affirmed a similar statute in Colorado. On March 25, 2013, McCullen filed a petition for a writ of certiorari with the Supreme Court, and on June 24, 2013 the petition was granted. The case was argued on January 15, 2014.
During oral arguments opponents of the law argued that the exemption for employees creates an unconstitutional imbalance in speech. Presenting McCullen as a peaceful counselor who “gently and lovingly” approaches women to convince them not to have abortion and presents patients tiny knitted caps, prosecutors argued that her anti-abortion speech is limited while the clinic of those who support the clinic is not. Alternatively, Jennifer Miller, who argued the case for Massachusetts, claimed that the restrictions on speech are warranted to prevent violence or disruptions outside the clinics. On June 26, 2014 the Supreme Court unanimously ruled that the buffer zone was an unconstitutional infringement on the First Amendment because it blocked peaceful protest on public streets.
- Doan, Alesha. Opposition and intimidation: The abortion wars and strategies of political harassment. University of Michigan Press, 2009, 1-13.
- Joseph Scheidler, Closed: 99 Ways to Stop Abortion, 15-16, http://prolifeaction.org/about/closed01.php
- Ibid, 15-21.
- Anne Shaw and Alane Spinney, “Rhetoric, Repetition, and Violence: A Case Study of Clinic Conflict in Milwaukee,” College Literature, Vol. 26, No. 1, Cultural Violence (Winter, 1999), pp. 170–192.
- "National Abortion Federation: Freedom of Access to Clinic Entrances (FACE) Act". prochoice.org. Retrieved 2014-04-27.
- "Challenge to Massachusetts 'Buffer Zone' Law Puts Clinic Access at Risk | The Nation". thenation.com. Retrieved 2014-04-27.
- "Ward v. Rock Against Racism | The Oyez Project at IIT Chicago-Kent College of Law". oyez.org. Retrieved 2014-04-27.
- Hill v. Colorado, 530 U.S. 703, 735 (SCOTUS 2000)
- "Search - Supreme Court of the United States". supremecourt.gov. Retrieved 2014-04-27.
- "McCullen v. Coakley | The Oyez Project at IIT Chicago-Kent College of Law". oyez.org. Retrieved 2014-04-27.
- Ibid, 2.