Abortion Protests

Abortion has been one of the most contentious and volatile issues in the United States, igniting public protest for and against it. While Roe v. Wade (1973) protects the right of women to seek an abortion, the First Amendment protects the rights of abortion opponents to challenge the Supreme Court’s decision. In essence, there are two rights at stake: the privacy rights of patients and staff members at health care facilities and the rights of speech, assembly, and petition of pro-choice and antiabortion protesters. Since the Roe decision, this battle of competing rights has played out in the Supreme Court and Congress as well as on countless streets and sidewalks in front of abortion clinics and elsewhere.

The standard of strict scrutiny when applied to First Amendment rights generally requires that the state demonstrate a compelling government interest in order to prohibit speech based on content in a public forum. If the regulation of the speech is neutral in terms of content, the regulation must only pass a reasonable scrutiny test. These standards were tested in Madsen v. Women’s Health Center (1994). In this case, a Florida state court permanently enjoined antiabortion protesters from blocking or interfering with public access to a clinic and from physically abusing persons entering or leaving. An amended injunction subsequently excluded demonstrators from a thirty-six-foot buffer zone around clinic entrances and driveways. Government officials use buffer zones to attempt to mitigate the effects of protesting by separating protesters and their targets in designated areas.

Madsen established a new test for injunctions prohibiting speech: an injunction will be upheld unless it burdens speech more than is necessary to serve a significant government interest. Justice Antonin Scalia’s dissent argued that this new standard was not strict enough and represented a grave threat to First Amendment protections. He also argued that the majority decision was biased against antiabortion speech. The majority held that the injunction was not subject to heightened scrutiny based on content simply because it applied to antiabortion protest. It upheld the restrictions against demonstrating within the buffer zone around the clinic and from making loud noises within earshot of the clinic. It rejected the prohibition against approaching patients within 300 feet of the clinic.

In response to a wave of violence surrounding protests at abortion clinics, President Clinton signed the Freedom of Access to Clinic Entrances Act of 1994 (FACE). This law prohibits acts of violence at abortion clinics by making it a federal crime to use force or threat of force, physical obstruction, intentional injury, and intimidation against reproductive health care providers and their patients. It also authorizes civil lawsuits for injunctions against such activities and monetary damages. The penalties for violation include imprisonment and fines. To protect First Amendment rights, the law may not be construed to prohibit peaceful expressive conduct or any activities protected by the free speech and free exercise clauses. Abortion rights activists applauded the law as a protection for clinics and patients, but First Amendment watchdogs criticized it as too broad and as improperly distinguishing between violent and nonviolent protest.

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