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Protecting abortion protesters and patients.

One of the most important and hotly contested First Amendment issues in the 1990s concerns the constitutionality of legislative and judicial regulation of abortion clinic protests. Groups such as the Lambs of Christ, Operation Rescue, and Pro-Life Action Network are engaged in a nationwide campaign of violence and harassment directed at abortion clinics and abortion service providers.

Last spring, a House of Representatives committee concluded that there was "dramatically escalating violence" against these health care providers and their patients and that there had been "at least 36 bombings, 81 arsons, 131 death threats, 84 assaults, two kidnappings, 327 clinic 'invasions' and one murder."(1) Since then, the double murder of Dr. John Britton and James Barrett in Pensacola, Florida, has tragically illustrated the growing pattern of violence directed at abortion clinics and their administrators, doctors, and patients.

This violence, of course, is not protected by the First Amendment. The groups, however, also have engaged in peaceful activity designed to block access to clinics and communicate their strong opposition to abortion. Since 1977, over 6,000 blockades and demonstrations have been reported to the National Abortion Federation.(2) Since 1987, as many as 72,000 protesters have been arrested at abortion clinic demonstrations.(3)

The protesters liken themselves to the civil rights protesters of the 1960s who used demonstrations and sit-ins to show their opposition to injustice and to pressure for change. But abortion providers contend that these protests very often exceed the scope of First Amendment protected activity and deny women access to their constitutionally protected right to abortion and other needed medical services.

Abortion clinics and supporters of abortion rights have tried a number of techniques to limit protest activities that impede access to the facilities. For example, suits have been brought arguing that the protests are a conspiracy to violate the civil rights of women and thus are actionable under federal civil rights laws.

The Supreme Court, however, rejected this argument in Bray v. Alexandria Women's Health Clinic, holding that there was no cause of action under this law because the protesters' goal was not to discriminate against women as a class.(4) In January 1994, the Supreme Court held that abortion protesters could be sued under the federal Racketeering Influenced and Corrupt Organizations (RICO) Act for engaging in a pattern of racketeering activity including extortion.(5) Many lower courts have also relied on state common law doctrines of trespass and nuisance and have issued injunctions creating "buffer zones" around the entrances to clinics.(6)

Most recently, this past spring, Congress adopted and President Clinton signed into law the Freedom of Access to Clinics Entrances Act of 1994 (FACE).(7) The act provides criminal penalties for the commission or attempted commission of "certain violent, threatening, obstructive and destructive conduct that is intended to injure, intimidate or interfere with persons seeking to obtain or provide reproductive health services."(8) Also, a civil action may be brought by any aggrieved person, the U.S. attorney general, or the attorney general of any state. Civil remedies include injunctive relief, compensatory damages, and civil penalties.(9)

First Amendment Rights

Abortion protesters say these actions--whether under RICO, the common law, or the new FACE Act--violate demonstrators' First Amendment rights. What protest activities are constitutionally protected? And what forms of regulation are permissible?

The Supreme Court addressed this issue for the first time in Madsen v. Women's Health Center, Inc., in June.(10) A state trial court had entered an injunction creating a 36-foot buffer zone around a clinic's entrance and driveway and a 300-foot zone with restrictions on noise, signs, and distance between protesters and those entering the clinic. The Florida Supreme Court upheld the injunction as constitutional,(11) but the Eleventh Circuit declared that it violated the First Amendment.(12)

The issue in Madsen, and the issue in future cases including those challenging the FACE Act, is whether the limits on abortion protests are a reasonable time, place, or manner restriction on speech. The framework for analyzing regulation of abortion protests on public sidewalks and streets is well established. The Supreme Court long has held that the government may regulate speech in traditional public forums such as sidewalks and streets if the restriction is content-neutral and is a time, place, or manner restriction that serves a significant government purpose and leaves open adequate alternative places for speech.(13)

The first question, then, is whether restrictions on abortion protests are content-neutral. Protesters contend that the regulations target the speech activities of those opposed to abortion and thus are inherently viewpoint-based.

The problem with this argument is that the focus of the restrictions is on the conduct that impedes access to clinics and not on the content of the message. If protesters blocking access to the clinics chanted political slogans about foreign policy or an election campaign, they would be restricted just the same as when their speech is about abortion.

Chief Justice William Rehnquist, writing for the majority in Madsen, explained why injunctions to protect access to clinics should not be regarded as content-based:

That petitioners all share the same

viewpoint regarding abortion does not

in itself demonstrate that some invidious

content- or viewpoint-based purpose

motivated the issuance of the

order. It suggests only that those in

the group whose conduct violated the

court's order happen to share the same

opinion regarding abortions being performed

at the clinic. In short, the fact

that the injunction covered people with

a particular viewpoint does not itself

render the injunction content- or


Likewise, the initial court decisions considering the constitutionality of the FACE Act have rejected the argument that the act is an impermissible content-based restriction on speech. The courts have concluded that the act, like the injunction in Madsen, is tailored to protect people from violent or intimidating practices at clinics and is thus without reference to the content of any message the participants might wish to express.(15)

The second major question in First Amendment analysis of protest restrictions is whether they serve a significant government interest. In earlier rulings, the Supreme Court recognized that the government has an important interest in protecting access to public buildings and in preventing interference with the functioning of courthouses and schools, for example.(16) Likewise, the courts are sure to consider safeguarding access to abortion clinics and protecting their activities from disruption as significant government interests.

The right to abortion is constitutionally protected. And the vast majority of clinics, public and private, provide other health care services such as prenatal care, birth control, cancer screening, infertility treatment, and gynecological care. Protests that block access or are so noisy as to disrupt clinic functioning thus deny patients needed medical care.

In Madsen, the Supreme Court upheld the part of the trial court's injunction that restrained demonstrators from using sound amplification equipment or engaging in loud protests when the clinic was open. Chief Justice Rehnquist's majority opinion concluded that the "limited noise restrictions imposed by the state court order burden no more speech than necessary to ensure the health and well-being of patients at the clinic."(17)

The final question in First Amendment traditional public forum analysis is whether the restrictions are a permissible time, place, or manner restriction on speech that leaves open adequate alternative places for speech. The Supreme Court has drawn a distinction between restrictions imposed by statute and those that occur through injunctions. If the limit imposed on protest activities is found in a statute or ordinance, the test then focuses on whether "the time, place, and manner regulations were narrowly tailored to serve a significant governmental interest."(18)

Stricter Standard

But if it is a court injunction limiting speech, a stricter standard of review is used. Injunctions are a classic form of prior restraints and traditionally have been subjected to exacting scrutiny. Indeed, Justice Antonin Scalia, dissenting in Madsen, made a powerful case that strict scrutiny should be used in evaluating injunctions at abortion clinics.(19)

Although the majority in Madsen did not use the label "strict scrutiny," the justices endorsed a similar exacting type of review for court orders restricting protest activities. Chief Justice Rehnquist's majority opinion said that the test is "whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest."(20)

The Madsen Court applied this standard to uphold the 36-foot "buffer zone" around the clinic. The state court order prohibited the demonstrators from "congregating, picketing, patrolling, demonstrating or entering" any part of a 36-foot zone as a way of ensuring access to the facility.(21) The Supreme Court upheld this as serving the important purpose of ensuring "unfettered ingress to and egress from the clinic" and as "burden[ing] no more speech than necessary to accomplish the governmental interest at stake."(22)

There is nothing magical about 36 feet nor does Madsen provide any clear guidance to lower courts in drawing zones in the future. In each case, courts issuing injunctions will need to consider the configuration of the clinic's entrance and the surrounding sidewalks and streets. The Supreme Court, however, made it clear that it would give "some deference" to lower courts' crafting injunctions based on their familiarity with the facts and background of the dispute.(23)

Madsen is thus extremely important in establishing court authority to create buffer zones protecting access to clinics. The Madsen Court, however, did not approve every aspect of the state court's injunction.

For example, the injunction also limited the display of "images observable to . . . patients inside the Clinic."(24) In other words, protesters were limited in their ability to hold up signs objecting to abortion as murder or graphically depicting dead fetuses. The Supreme Court found the restriction unconstitutional because "it is much easier for the clinic to pull its curtains than for a patient to stop up her ears, and no more is required to avoid seeing placards through the windows of the clinic."(25)

Similarly, the Court found unconstitutional the part of the injunction that prohibited demonstrators from approaching any person seeking clinic services "'unless the person indicates a desire to communicate' in an area within 300 feet of the clinic."(26) The Court concluded that the prohibition of all uninvited approaches burdened more speech than necessary to prevent intimidation and to ensure access to the clinic.

The better alternative, in the Court's view, would be to prohibit directs or intimidation. But the difficulty with this approach is the problem of monitoring the content of relatively private conversations. In the context of abortion clinic protests, a "no approach" zone may be the best way to ensure that intimidation and threats do not occur.

The Madsen Court's approval of prohibiting threats strongly indicates that the FACE Act is likely to be upheld as constitutional. The law prohibits threats intended to "place a person in reasonable apprehension of bodily harm to him or herself or to another."(27) The Supreme Court has never held that such threats arc protected by the First Amendment. Therefore, not surprisingly, both district courts that have considered the constitutionality of the FACE Act have concluded that it does not violate the First Amendment.(28)

Clear Test

The issue of abortion protests and the First Amendment has generated enormous social interest and dozens of court cases. Yet, as a matter of First Amendment jurisprudence, the issue does not raise novel questions or require that the court formulate new legal principles.

The government's ability to regulate the use of sidewalks and streets for demonstrations has been the topic of many Supreme Court decisions over the years, and a clear test has emerged. The government may limit abortion protests in public forums, such as sidewalks and streets outside clinics, if the regulation is content-neutral and is a time, place, or manner restriction that serves a significant government interest and leaves open adequate alternative places for speech.

Madsen clearly established that limited buffer zones to preserve access to clinics are constitutional under this standard. Abortion protesters have the right to express their message near clinics. But legislatures and courts can limit the demonstrations to ensure that access to or use of the facilities is not hindered.

Ultimately, the constitutional rules are the same as when the government protects the functioning of a clinic, school, or any other building abutting a public sidewalk. It is only the emotionally charged context of abortion that makes the issues look different.


(1) H.R. REP. NO. 103-306,103d Cong., 2d Sess. (1994), reprinted in 1994 U.S.C.C.A.N. 703-04.

(2) S. REP. NO. 117, 103d Cong., 1st Sess. 3 (1993).

(3) Abortion Opponents Vow to Continue Protests, UPI, Mar. 22,1993, available in DIALOG, UPI File.

(4) 113 S. Ct. 753 (1993).

(5) National Org. for Women v. Scheidler, 114 S. Ct. 798 (1994).

(6) See, e.g., Portland Feminist Women's Health Ctr. v. Advocates for Life, Inc., 859 F.2d 681 (9th Cir. 1988) (upholding a 12.5-foot zone); Northeast Women's Ctr. v. McMonagle, 939 F.2d 57 (3d Cir. 1991) (upholding a zone extending up to 500 feet).

(7) Pub. L. No. 103-259,108 Stat. 694 (1994).

(8) Id. at [sections]2.

(9) Id. at [sections]3(c).

(10) 114 S. Ct. 2516 (1994).

(11) 626 So. 2d 664 (Fla. 1993), cert. denied, 114 S. Ct. 923 (1994).

(12) Cheffer v. McGregor, 6 F.3d 705 (11th Cir. 1993).

(13) See, e.g., Heffron v. International Soc'y for Krishna Consciousness, 452 U.S. 640, 648 (1981).

(14) Madsen, 114 S. Ct. 2516, 2524,

(15) Council for life Coalition v. Reno, 856 F. Supp. 1422, 1427 (S.D. Cal. 1994); American Life League, Inc. v. Reno, 855 F. Supp. 137,142 (E.D. Va. 1994).

(16) See, e.g., Cameroll v. Johnson, 390 U.S. 611 (1968) (access to public buildings); Grayned v. City of Rockford, 408 U.S. 104 (1972) (preventing disruption of schools).

(17) Madsen, 114 S. Ct. 2516,2528.

(18) Id. at 2524, quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)

(19) 114 S. Ct. 2516, 2537-39 (Scalia, J., dissenting.)

(20) Id. at 2525.

(21) Id. at 2526.

(22) Id. at 2527.

(23) Id.

(24) Id. at 2522.

(25) Id. at 2529.

(26) Id.

(27) Pub. L. No. 103-259 [subsections]3(a)(1), (e)(3).

(28) Council for life Coalition, 856 F. Supp. 1422; American Life League, Inc., 855 F. Supp. 137.
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Title Annotation:Civil Rights
Author:Chemerinsky, Erwin
Date:Dec 1, 1994
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