Protecting Anti-Abortion Protests, Like them or Not

By Wendy Kaminer
        Last year, Governor Patrick signed a law mandating expanded no speech and no loitering zones around the entrances to abortion clinics; members of the general public are now prohibited from approaching within 35 feet of clinics unless they're entering or exiting or simply passing by.  Last week, the Alliance Defense Fund, (ADF) a conservative advocacy group, challenged this law in federal district court, arguing that it’s vague and vests too much discretion in police officers, encouraging discriminatory enforcement, and that it privatizes a public sidewalk and public forum, banning peaceful anti-abortion protests where they are most likely to matter. The complaint alleges:
         "Plaintiffs desire to orally communicate with clinic clients and passersby from a distance in which they can speak in a normal conversational tone and make eye contact.  Plaintiffs wish to avoid raising their voices or speaking from long distances.   Because in most instances they cannot identify clinic clients until they actually approach the reproductive health care facility, Plaintiffs and other pro-life advocates must station themselves on the public ways near the path of pedestrians and in close proximity to facility entrances and driveways in order to effectively communicate their message.  On many occasions, clinic clients and/or their companions willingly receive such oral communications."

        Reproductive choice advocates are unlikely to be moved by these concerns, especially here Massachusetts, where, in 1994, an anti-abortion gunman killed two people and wounded five in an attack on two Boston area clinics.  Liberals are unlikely to look favorably upon any challenge mounted by ADF, a right wing Christian group, dedicated to “defending the right to hear and speak the Truth through strategy, training, funding, and litigation.”  But civil libertarians should support ADF’s challenge to the buffer zone, no matter how much they sympathize with the concerns of abortion rights advocates.  (The ACLU of Massachusetts officially opposes the law.) 

        As I wrote here last May, (bear with me while I repeat myself a bit,) the 35-foot buffer zone doesn’t simply regulate or attempt to regulate harassment of people entering or leaving clinics.  It unconstitutionally outlaws political speech, imposing prior restraints on peaceful, even silent protests within 35 feet of clinic entrances and driveways – where the protests might be most effective.

        This is an overly simple solution to a complicated problem – the reported difficulties of enforcing the previous law (which established a 6 foot floating bubble zone around people entering and leaving clinics) and the tendency of some protesters to harass individual patients and providers.  But the abusive conduct of some protesters does not give the state power to punish all protesters.  The prohibition on prior restraint of speech is essentially a presumption of innocence: all speech must be proven guilty, or unprotected by the First Amendment, before it can be restricted.
        If drafted with respect for the Constitution, and basic civil liberties, prohibitions on speech are naturally and necessarily difficult to enforce.  Obscenity laws, for example, can defy enforcement, to the dismay of some and delight of others.  It would be easier to punish obscenity if we simply created a sort of buffer zone around discussions of sex.  It’s easy to police harassment of delegates to a political convention when we create buffer zones around entrances to convention halls, corralling protesters into "free speech" zones."

        Protests around abortion clinics are “different,” many liberal pro-choice activists argue, because they upset and intimidate clinic workers and, especially, women seeking abortions, who may easily traumatized.  Perhaps.  But we do not have a right not to be upset, even when seeking medical care.  We don’t even have right not to be traumatized.  Your right to speak is not contingent on my willingness to hear you, or on my emotional fortitude.

        This may seem hard-hearted, but the preservation of liberty requires us to be hard-headed:  We don’t have a right to be protected from the emotional turmoil occasioned by speech; we do have a right to inflict it.

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