Court allows 'in your face' abortion protests.

Between 1977 and 1993, reproductive health care providers faced more than 1,000 acts of violence and 6,000 clinic blockades.(1) The violence included more than 100 clinic bombings and arsons, as well as several murders and attempted murders of health care providers.

Opponents launched a systematic protest effort outside facilities where abortions were being performed. They did this in order to obstruct access to the clinics and intimidate people using them.(2)

In response, Congress enacted the Freedom of Access to Clinics Entrance Act of 1994, which creates criminal and civil liability for "whoever . . . by force or threat of force or by physical obstruction, intentionally injures, intimidates, or interferes with or attempts to injure, intimidate, or interfere with any person . . . obtaining or providing reproductive health services."(3) Also, many state and federal courts have imposed injunctions limiting protests outside health care facilities.(4)

Although acts of violence are never protected by the First Amendment, protests and demonstrations are classic forms of speech. The difficult issue is how to balance the rights of antiabortion protectors with the rights of people using and working in the targeted facilities.

The Supreme Court first addressed this issue three years ago in Madsen v. Women: Health Center.(5) The Court upheld a state court order that created a 36-foot buffer zone at the entrance to a clinic so people could enter and leave. The High Court also upheld a part of the order that imposed restrictions on noise levels around the clinic.

The Court, however, declared unconstitutional parts of the order that limited signs around the clinic and that prevented protestors from approaching people using the facility within 300 feet of the entrance. The Court said the test is "whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest."(6)

This term, in Schenck v. Pro-Choice Network of Western New York, the Court again addressed what types of court orders protecting abortion clinics are permissible under the First Amendment.(7) The key question in Schenck was the constitutionality of a "floating buffer zone" that required protectors to stay 15 feet from people entering and leaving clinics and from vehicles transporting those people.

By a surprising 8-1 margin, with only Justice Stephen Breyer dissenting, the Court declared the floating buffer zone unconstitutional. The Court's ruling that the First Amendment protects not only a right to speak to a person but also a right to be in close physical proximity has important implications for a number of areas of free speech litigation.

Schenck was initiated in 1990 by several plaintiffs, including the Pro-Choice Network of Western New York, a not-for-profit corporation with the stated goal of maintaining safe and legal access to family planning and abortion services and to clinics and doctors offering gynecological care, including abortions. The plaintiffs sued Operation Rescue, Project Rescue Western New York, Project Life of Rochester, and 50 individual demonstrators to enjoin a scheduled blockade of a reproductive health care facility.

The demonstrators had conducted a number of blockades in which they obstructed access to facilities and interfered with patients, doctors, nurses, and other employees entering or leaving the clinics. As the Supreme Court observed,

Sometimes protectors used more aggressive

techniques, with varying levels of belligerence:

getting very close to women entering

the clinics and shouting in their faces; surrounding,

crowding, and yelling at women

entering the clinics; or jostling, grabbing,

pushing women as they attempted to enter

the clinics. Male and female clinic volunteers

who attempted to escort patients past protestors

into the clinics were sometimes elbowed,

grabbed, or spit on. Sometimes the escorts

pushed back.(8)

The federal district court issued a temporary restraining order and, after almost 40 days of hearings, a preliminary injunction. Thus, the preliminary injunction was based on an extensive factual record and detailed factual findings.

The preliminary injunction created both a "fixed buffer zone" that prevented demonstrations within 15 feet of the doorway and parking lot entrances and a "floating buffer zone" that prevented demonstrations within 15 feet of any person seeking access to or exit from the facilities.(9)

The injunction also imposed a "cease and desist" provision that required "sidewalk counselors" inside the buffer zones to retreat 15 feet from the person being counseled once the person indicates a desire not to be counseled.(10) The U.S. Court of Appeals for the Second Circuit initially found the injunction unconstitutional(11) but then upheld it in an en bane decision.(12)

Court ruling

The Supreme Court reaffirmed Madsen and held that the fixed buffer zone was constitutional. Chief Justice William Rehnquist, writing for the Court, declared, "We uphold the fixed buffer zones around the doorways, driveways, and driveway entrances. These buffer zones are necessary to ensure that people and vehicles trying to enter or exit the clinic property or clinic parking lots can do so."(13) As in Madsen, the Court proclaimed a need to defer to trial courts in setting the size and configuration of buffer zones.

The Court, however, declared the floating buffer zone unconstitutional. Rehnquist explained that it would be difficult at some clinics for speakers to remain 15 feet from their intended listeners, as at one clinic where the sidewalk was 17 feet wide.(14) The Court said,

With clinic escorts leaving the clinic to pick

up incoming patients and entering the clinic

to drop them off, it would be quite difficult for

a protector who wishes to engage in peaceful

expressive activities to know how to remain in

compliance with the injunction. The lack of

certainty leads to a substantial risk that much

more speech will be burdened than the injunction

by its terms prohibits.(15)

The Court upheld the "cease and desist" part of the order that required that "sidewalk counselors" stay 15 feet from those who indicate they do not wish to be approached. The Court relied on the pattern of harassment the district court found and said that "these counselors remain free to espouse their message outside the 15-foot buffer zone, and the condition on their freedom to espouse it within the buffer zone is the result of their own previous harassment and intimidation of patients."(16)

In allowing the fixed buffer zone around the reproductive health care facility, Schenck simply reaffirmed Madsen. Invalidating the floating buffer zone, however, is a major new development.

The Court ruled that the First Amendment protects not only a right to speak to someone but also a right to be in close proximity to the listener. Fifteen feet is a relatively small distance, at which even normal conversation can be heard. A 15-foot floating buffer zone would not keep any protector from communicating. The question is why the First Amendment protects the right of a protector to be literally in the listener's face.

Unfortunately, Rehnquist's opinion did not specifically address this issue. Rather, the opinion focused on the difficulty of administering a floating buffer zone.

But, as Breyer argued in dissent, there is nothing inherently unclear about a floating buffer zone, and its constitutionality "should depend upon the particular clinic and the particular circumstances."(17) Breyer rejected the facial invalidation of the floating buffer zone and instead would have applied it case by case.

The Court's protection of the right to protest in the listener's face has important consequences for free speech law. The Court has expanded First Amendment protection from the message to a particular manner of communication. This could significantly affect other government attempts to restrict direct-contact communications.

For example, many cities have enacted ordinances limiting begging and preventing those who beg from directly approaching people. Schenck's explicit protection of a right to approach potential listeners provides a strong basis for challenging these laws.

Schenck is certainly not the last word from the Supreme Court on the First Amendment and abortion protests. The Court obviously is trying to strike a careful balance between a desire to safeguard protests and a need to protect health care facilities and their patients and employees.

In light of this ruling, lower courts must develop new techniques to protect people using abortion clinics.

Notes

(1.) S. REP. NO. 103-117, at 4 (1993).

(2.) See, e.g., Volunteer Med. Clinic, Inc. v. Operation Rescue, 948 F.2d 218, 221 (6th Cir. 1991) (describing the blockades outside abortion clinics).

(3.) Pub. L. No. 103-259, [sections]3, 108 Stat. 694 (1994) (codified as amended at 18 U.S.C. [sections]248(a)(1) (1994)).

(4.) See, e.g., Northeast Women's Ctr., Inc. v. McMonagle, 939 F.2d 57 (3d Cir.1991); New York State N.O.W. v. Terry, 886 F.2d 1339 (2d Cir.1989); Medlin v. Palmer, 874 F.2d 1085 (5tn Cir. 1989); Portland Feminist Women's Health Ctr. v. Advocates for Life, Inc., 859 F.2d 681 (9th Cir.1988).

(5.) 114 S.Ct. 2516 (1994).

(6.) Id. at 2525.

(7.) 117 S. Ct. 855 (1997).

(8.) Id. at 860.

(9.) 799 F. Supp. 1417, 1440-1441 (W.D.N.Y.1992).

(10.) Id. at 1440.

(11.) 67 F.3d 359 (2d Cir.1994).

(12.) 67 F.3d 377 (2d Cir.1995) (en banc).

(13.) 117 S.Ct. 855, 868.

(14.) Id. at 866.

(15.) Id. at 867.

(16.) Id. at 870.

(17.) Id. at 878 (Breyer, J., dissenting).

Erwin Chemerinsky is the Legion Lex Professor of Law, University of Southern California Law School.