Analysis Law and Policy

Will the Roberts Court Respect Abortion Providers’ and Patients’ Right To Be Left Alone?

Jessica Mason Pieklo

The Supreme Court will hear arguments in the constitutionality of a Massachusetts buffer zone law. Conservatives see it as a chance to pounce on the idea that abortion patients deserve to be left alone as they enter clinics.

For the first time in over a decade the Supreme Court will take a look at the issue of protests around abortion clinics when it hears arguments next week in McCullen v. Coakley, a case that challenges the constitutionality of a 2007 Massachusetts buffer zone law.

A lot has changed since the Supreme Court last took a look at the constitutionality of abortion clinic buffer zone laws. Between 2011 and 2013, more than 200 restrictions to abortion were enacted around the country, representing more than the total enacted in the entire previous decade. Religious conservatives have waged war on employment benefits, attacking the contraception mandate and crying “religious discrimination” in having to provide health benefits equally, while conservatives on the federal bench go along. And despite federal protections for clinics and patients, Dr. George Tiller was assassinated by an anti-choice extremist while those working to keep abortion access available in Kansas face continued harassment and threats of violence. Then, of course, there’s the composition of the Supreme Court and the absence of Justice Sandra Day O’Connor.

The last time the Supreme Court waded into the waters of abortion protesters, free speech, and government regulation was in the 2000 Hill v. Colorado case. The 6-3 decision upheld a 1993 Colorado law that restricted demonstrations around health-care facilities. The Colorado buffer zone law provides that within 100 feet of any facility entrance, protesters are prohibited from approaching within eight feet of a patient without their consent for the purpose of demonstrating at them.

Colorado passed its buffer zone law in response to anti-choice protesters in the area using demonstrations to block access to clinics and harass and confront patients and staff. Under the law, “demonstrating” included such activities as displaying a sign, leafleting, and, importantly, engaging in conversation with patients and staff.

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Anti-choice activists sued, arguing the buffer zone violated their First Amendment free speech rights. Attorneys for the State of Colorado defended the law, arguing it was a reasonable restriction on those rights given the history of confrontation by protesters and evidence that such confrontations adversely affect patient care. The Supreme Court agreed, voting 6 to 3 to uphold the state’s buffer zone law, but produced a murky opinion that has been the target of both anti-choice activists and First Amendment purists.

Restrictions on speech and speech activities like protesting are constitutional so long as they are content neutral, narrowly tailored to serve a significant government interest, and leave open ample channels for communication. In Hill v. Colorado, the majority ruled Colorado had a compelling interest in protecting its citizens from unwanted communication while not curtailing that communication entirely; although speakers have a right to persuade, the majority held, listeners also have a right to “be let alone.” Furthermore, the majority held, the restriction is content neutral because it applies to any message, regardless of the speaker. That means the buffer zone isn’t regulating speech, just one arena for that speech to take place.

Importantly though, the decision in Hill frames its analysis on the impact of protesters’ actions and harassment on patients. And as you can imagine, Justices Scalia and Thomas don’t like that framing at all.

Justice Scalia goes to great lengths in his dissenting opinion, which Justice Thomas joined, to detail the ways in which the majority got it wrong. According to Scalia, there is no way the law can be content neutral since it applies only to abortion clinics. Because only people who oppose abortion protest outside clinics, Justice Scalia reasoned, the law targets the protesters’ messages. Furthermore, even if the law were “content neutral” and didn’t single out abortion protest speech, the state has no compelling interest in protecting its citizens from unwanted speech, he concluded.

But Scalia went even further, accusing the majority of contorting First Amendment law because they don’t like anti-choice protesters. “There is apparently no end to the distortion of our First Amendment law that the Court is willing to endure in order to sustain this restriction upon the free speech of abortion opponents,” Scalia wrote.

“Does the deck seem stacked?” he continued. “You bet.”

Fast forward to the Roberts Court, where Justice Samuel Alito, one of the staunchest anti-choice activists on the bench, has replaced Justice Sandra Day O’Connor, who was among the majority in Hill. Factor in the increased hostility toward abortion rights and access from the federal bench generally, but especially when placed in opposition to the rights of abortion protesters and objectors, and a case that should be set up to reaffirm reasonable balances in the rights of patients and the rights of protesters looks a lot more tenuous.

If there’s a silver lining, though, it is in the facts and circumstances surrounding the Massachusetts buffer zone law. According to Martha Walz, president and CEO of Planned Parenthood League of Massachusetts, the law was passed in response to a “real and demonstrated need” for something to help curtail abusive clinic protests. As Walz explained to Rewire, during the 1980s and ’90s and prior to the passage of the law at issue, abortion providers responded to clinic and patient harassment and intimidation though a series of injunctions designed to block the worst offenders. But, much like the limitations of the federal Freedom of Access to Clinic Entrances (FACE) Act, that approach to harassment and violence just didn’t work. “Those remedies are after the fact,” Walz explained. “At that point the damage to access has been done. We needed something to prevent it from happening in the first place.”

The Massachusetts law establishes a fixed, 35-foot buffer zone during health center operating hours. It was passed after a previous buffer law proved insufficient. During the time the previous buffer zone law was on the books in Massachusetts, protesters persisted in their efforts to harass and intimidate women. Evidence submitted in support of their argument to uphold the law detailed how protesters dressed up as police officers in order to obtain patients’ and staff members’ personal identifying information, filmed and photographed patient and staff vehicles, screamed at them, and even touched their bodies.

Walz, who was a state representative and worked closely with local law enforcement to get the buffer zone law passed, described the current relationship between clinic and protesters under the regulation as “one of peaceful co-existence.”

“Law enforcement supports the buffer zones,” Walz said. “They love that it works. And the protesters, they respect it.” The law “strikes the right balance” between the free speech rights of protesters and the rights of patients and clinic workers to be left alone, she said.

In defense of the law, Planned Parenthood argues that like the buffer zone in Hill v. Colorado, the 35-foot buffer zone at issue here does not target any particular viewpoint, but is narrowly tailored to protect against the long-standing public safety problem outside reproductive health-care centers in Massachusetts. In fact, the zone is so narrowly tailored that what is at stake for protesters is a matter of seconds. “What we are talking about here is seven seconds,” Walz said. “That’s how long it takes to walk from the edge of the buffer zone to the clinic entrance. That’s all.”

But it was enough for anti-choice activists to challenge the law, so far unsuccessfully. The U.S. District Court for Massachusetts has twice upheld the constitutionality of the law, and the First Circuit Court of Appeals has also twice ruled that the Massachusetts buffer zone law is constitutional. The Supreme Court hears arguments in the case on Wednesday, January 15, with a decision expected sometime this summer.

Since passage of the Massachusetts law, two other states and municipalities across the country, including Portland, Maine, have enacted similar buffer zone laws. That means a broad ruling from the Court and striking the Massachusetts law could have wide-ranging, national implications. It could reach so far as the chambers of the Roberts Court, which narrowed its own protest buffer zone rule this summer after a federal court found an earlier version unconstitutional. Hopefully, the fact that the justices are “left alone” to deliberate in the coming months is not lost on at least a majority of justices.

Culture & Conversation Abortion

With Buffer Zones and Decline of ‘Rescues’ Came Anti-Choice Legal Boom, Book Argues

Eleanor J. Bader

University of Denver's Joshua Wilson argues that prosecutions of abortion-clinic protesters and the decline of "rescue" groups in the 1980s and 1990s boosted conservative anti-abortion legal activism nationwide.

There is nothing startling or even new in University of Denver Professor Joshua C. Wilson’s The New States of Abortion Politics (Stanford University Press). But the concise volume—just 99 pages of text—pulls together several recent trends among abortion opponents and offers a clear assessment of where that movement is going.

As Wilson sees it, anti-choice activists have moved from the streets, sidewalks, and driveways surrounding clinics to the courts. This, he argues, represents not only a change of agitational location but also a strategic shift. Like many other scholars and advocates, Wilson interprets this as a move away from pushing for the complete reversal of Roe v. Wade and toward a more incremental, state-by-state winnowing of access to reproductive health care. Furthermore, he points out that it is no coincidence that this maneuver took root in the country’s most socially conservative regions—the South and Midwest—before expanding outward.

Wilson credits two factors with provoking this metamorphosis. The first was congressional passage of the Freedom of Access to Clinic Entrances (FACE) Act in 1994, legislation that imposed penalties on protesters who blocked patients and staff from entering or leaving reproductive health facilities. FACE led to the establishment of protest-free buffer zones at freestanding clinics, something anti-choicers saw as an infringement on their right to speak freely.

Not surprisingly, reproductive rights activists—especially those who became active in the 1980s and early 1990s as a response to blockades, butyric acid attacks, and various forms of property damage at abortion clinics—saw the zones as imperative. In their experiences, buffer zones were the only way to ensure that patients and staff could enter or leave a facility without being harassed or menaced.

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The second factor, Wilson writes, involved the reduced ranks of the so-called “rescue” movement, a fundamentalist effort led by the Lambs of Christ, Operation Rescue, Operation Save America, and Priests for Life. While these groups are former shadows of themselves, the end of the rescue era did not end anti-choice activism. Clinics continue to be picketed, and clinicians are still menaced. In fact, local protesters and groups such as 40 Days for Life and the Center for Medical Progress (which has exclusively targeted Planned Parenthood) negatively affect access to care. Unfortunately, Wilson does not tackle these updated forms of harassment and intimidation—or mention that some of the same players are involved, albeit in different roles.

Instead, he argues the two threads—FACE and the demise of most large-scale clinic protests—are thoroughly intertwined. Wilson accurately reports that the rescue movement of the late 1980s and early 1990s resulted in hundreds of arrests as well as fines and jail sentences for clinic blockaders. This, he writes, opened the door to right-wing Christian attorneys eager to make a name for themselves by representing arrested and incarcerated activists.

But the lawyers’ efforts did not stop there. Instead, they set their sights on FACE and challenged the statute on First Amendment grounds. As Wilson reports, for almost two decades, a loosely connected group of litigators and activists worked diligently to challenge the buffer zones’ legitimacy. Their efforts finally paid off in 2014, when the U.S. Supreme Court found that “protection against unwelcome speech cannot justify restrictions on the use of public streets and sidewalks.” In short, the decision in McCullen v. Coakley found that clinics could no longer ask the courts for blanket prohibitions on picketing outside their doors—even when they anticipated prayer vigils, demonstrations, or other disruptions. They had to wait until something happened.

This, of course, was bad news for people in need of abortions and other reproductive health services, and good news for the anti-choice activists and the lawyers who represented them. Indeed, the McCullen case was an enormous win for the conservative Christian legal community, which by the early 2000s had developed into a network united by opposition to abortion and LGBTQ rights.

The New States of Abortion Politics zeroes in on one of these legal groups: the well-heeled and virulently anti-choice Alliance Defending Freedom, previously known as the Alliance Defense Fund. It’s a chilling portrait.

According to Wilson, ADF’s budget was $40 million in 2012, a quarter of which came from the National Christian Foundation, an Alpharetta, Georgia, entity that claims to have distributed $6 billion in grants to right-wing Christian organizing efforts since 1982.

By any measure, ADF has been effective in promoting its multipronged agenda: “religious liberty, the sanctity of life, and marriage and the family.” In practical terms, this means opposing LGBTQ inclusion, abortion, marriage equality, and the right to determine one’s gender identity for oneself.

The group’s tentacles run deep. In addition to a staff of 51 full-time lawyers and hundreds of volunteers, a network of approximately 3,000 “allied attorneys” work in all 50 states to boost ADF’s agenda. Allies are required to sign a statement affirming their commitment to the Trinitarian Statement of Faith, a hallmark of fundamentalist Christianity that rests on a literal interpretation of biblical scripture. They also have to commit to providing 450 hours of pro bono legal work over three years to promote ADF’s interests—no matter their day job or other obligations. Unlike the American Bar Association, which encourages lawyers to provide free legal representation to poor clients, ADF’s allied attorneys steer clear of the indigent and instead focus exclusively on sexuality, reproduction, and social conservatism.

What’s more, by collaborating with other like-minded outfits—among them, Liberty Counsel and the American Center for Law and Justice—ADF provides conservative Christian lawyers with an opportunity to team up on both local and national cases. Periodic trainings—online as well as in-person ones—offer additional chances for skill development and schmoozing. Lastly, thanks to Americans United for Life, model legislation and sample legal briefs give ADF’s other allies an easy way to plug in and introduce ready-made bills to slowly but surely chip away at abortion, contraceptive access, and LGBTQ equality.

The upshot has been dramatic. Despite the recent Supreme Court win in Whole Woman’s Health v. Hellerstedt, the number of anti-choice measures passed by statehouses across the country has ramped up since 2011. Restrictions—ranging from parental consent provisions to mandatory ultrasound bills and expanded waiting periods for people seeking abortions—have been imposed. Needless to say, the situation is unlikely to improve appreciably for the foreseeable future. What’s more, the same people who oppose abortion have unleashed a backlash to marriage equality as well as anti-discrimination protections for the trans community, and their howls of disapproval have hit a fever pitch.

The end result, Wilson notes, is that the United States now has “an inconstant localized patchwork of rules” governing abortion; some counties persist in denying marriage licenses to LGBTQ couples, making homophobic public servants martyrs in some quarters. As for reproductive health care, it all depends on where one lives: By virtue of location, some people have relatively easy access to medical providers while others have to travel hundreds of miles and take multiple days off from work to end an unwanted pregnancy. Needless to say, this is highly pleasing to ADF’s attorneys and has served to bolster their fundraising efforts. After all, nothing brings in money faster than demonstrable success.

The New States of Abortion Politics is a sobering reminder of the gains won by the anti-choice movement. And while Wilson does not tip his hand to indicate his reaction to this or other conservative victories—he is merely the reporter—it is hard to read the volume as anything short of a call for renewed activism in support of reproductive rights, both in the courts and in the streets.

Culture & Conversation Media

TRAP Laws and the Abortion ‘Crisis’: A Conversation With Award-Winning Filmmaker Dawn Porter

Tina Vasquez

Recently, Porter spoke with Rewire about the inaccurate framing of abortion as a “moral” issue and the conditions that have created the current crisis facing providers and patients alike. Her film will air nationally on PBS’ Independent Lens Monday.

Dawn Porter’s documentary TRAPPED focuses on the targeted regulation of abortion providers (TRAP) laws designed to close clinics. But, as Porter told Rewire in a phone interview, TRAPPED is also about “normal people,” the providers and clinic staff who have been demonized due to their insistence that women should have access to abortion and their willingness to offer that basic health-care service.

Between 2010 and 2015, state legislators adopted some 288 laws regulating abortion care, subjecting providers and patients to restrictions not imposed on their counterparts in other medical specialties.

In Alabama, where most of the film takes place, abortion providers are fighting to keep their clinics open in the face of countlessand often arbitrary—regulations, including a requirement that the grass outside the facilities be a certain length and one mandating abortions be performed in far more “institutional” and expensive facilities than are medically necessary.

The U.S. Supreme Court is expected to issue a ruling this month on a Texas case regarding the constitutionality of some TRAP laws: Whole Woman’s Health v. Hellerstedt. The lawsuit challenges two provisions in HB 2: the admitting privileges requirement applied to Whole Woman’s Health in McAllen, Texas, and Reproductive Services in El Paso, Texas, as well as the requirement that every abortion clinic in the state meet the same building requirements as ambulatory surgical centers. It is within this context that Porter’s film will air nationally on PBS’ Independent Lens Monday.

Recently, the award-winning filmmaker spoke with Rewire about the Supreme Court case, the inaccurate framing of abortion as a “moral” issue, and the conditions that have created the current crisis facing providers and patients alike.

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Rewire: What has changed for the clinicians featured in TRAPPED since the documentary premiered at the Sundance Film Festival in January?

Dawn Porter: Now, in Alabama, the legislature has passed a law banning clinics within 2,000 feet of a school. There’s a lot of frustration because the clinicians abide by the laws, and then more are put in place that makes it almost impossible to operate.

Everyone has been really focused on Dalton Johnson’s clinic [the Alabama Women’s Center for Reproductive Alternatives] because the clinic he moved to was across the street from a school, but the law has also affected Gloria [Gray, the director of the West Alabama Women’s Center in Tuscaloosa, Alabama]and that’s not something a lot of us initially realized. She’s afraid this will shut her down for good. I would say this has been a very hard blow for her. I think Dalton was perhaps more prepared for it. He will fight the law.

The good news is that it’s not like either of these clinics will close tomorrow; this gets decided when they go back for relicensing at the end of the year. Right now, they’re in the middle of legal proceedings.

Of course, we’re all also awaiting the Supreme Court decision on Whole Woman’s Health. There’s a lot of uncertainty and anxiety right now, for these clinic owners in particular, but for all clinic owners [nationwide] really.

Rewire: Let’s talk about that. Later this month, the Supreme Court is expected to issue its ruling on that caseEven if the Supreme Court rules that these laws are unconstitutional, do you think the case will change the environment around reproductive rights?

DP: It really depends on how the Court writes the decision. There may be no case in which it’s more important for the Court to have a comprehensive decision. It’s a multiheaded hydra. There’s always something that can close a clinic, so it’s crucially important that this Court rules that nothing can hinder a woman’s right to choose. It’s important that this Court makes it clear that all sham laws are unconstitutional.

Rewire: We know abortion providers have been killed and clinics have been bombed. When filming, did you have safety concerns for those involved?

DP: Definitely. The people who resort to violence in their anti-choice activities areI guess the most charitable way to describe itunpredictable. I think the difficult thing is you can’t anticipate what an irrational person will do. We took the safety of everyone very seriously. With Dr. Willie Parker [one of two doctors in the entire state of Mississippi providing abortions], for example, we wouldn’t publicize if he’d be present at a screening of the film. We never discussed who would appear at a screening. It’s always in the back of your mind that there are people who feel so strongly about this they would resort to violence. Dr. Parker said he’s aware of the risks, but he can’t let them control his life.

We filmed over the course of a few years, and honestly it took me a while to even ask about safety. In one of our last interviews, I asked Dr. Parker about safety and it was a very emotional interview for both of us. Later during editing, there was the shooting at the Colorado clinic and I called him in a panic and asked if he wanted me to take our interview out of the film. He said no, adding, “I can’t let irrational terrorists control my life.” I think everybody who does this work understands what’s at risk.

Rewire: It seems Texas has become ground zero for the fight for abortion access and because of that, the struggles in states like Alabama can get lost in the shuffle. Why did you choose to focus on Alabama?

DP: I met Dr. Parker when he was working in Mississippi. The first meeting I did with him was in December 2012 and he told me that Alabama had three clinics and that no one was talking about it. He introduced me to the clinic owners and it was clear that through them, the entire story of abortion access—or the denial of itcould be told. The clinic owners were all working together; they were all trying to figure out what to do legally so they could continue operating. I thought Alabama was unexplored, but also the clinic owners were so amazing.

To tell you the truth, I tried to avoid Texas for a long time. If you follow these issues around reproductive rights closely, and I do, you can sort of feel like, “Uh, everyone knows about Texas.” But, actually, a lot of people don’t know about Texas. I had this view that everyone knew what was going on, but I realized I was very insulated in this world. I started with Texas relatively late, but decided to explore it because we were following the lawyers with the Center for Reproductive Rights and they were saying one of their cases would likely go to the Supreme Court, and Whole Woman’s Health was most likely. They, of course, were right.

When you’re making a film, you’re emerged in a world and you have to take a step back and think about what people really know, not what you think they know or assume they know.

Rewire: In TRAPPED, you spliced in footage of protests from the 1970s, which made me think about how far we’ve come since Roe v. Wade. Sometimes it feels like we’ve come very far, other times it feels like nothing has changed. Why do you think abortion is such a contentious topic?

DP: I don’t think it’s actually that contentious, to tell you the truth. I think there is a very vocal minority who are extreme. If you poll them, most Americans are pro-choice and believe in the right to abortion in at least some circumstances. Most people are not “100 percent, no abortion” all the time. People who are, are very vocal. I think this is really a matter of having people who aren’t anti-choice be vocal about their beliefs.

Abortion is not the number one social issue. It was pretty quiet for years, but we’ve seen the rise of the Tea Party and conservative Republicans heavily influencing policy. The conservative agenda has been elevated and given a larger platform.

We need to change public thinking about this. Part of that conversation is destigmatizing abortion and not couching it in a shameful way or qualifying it. Abortion is very common; many, many women have them. Three in ten U.S. women have had an abortion before the age of 45. I think that part of the work that needs to be done is around stigma and asking why are we stigmatizing this. What is the agenda around this?

Evangelicals have done a great job of making it seem like this is an issue of morality, and it’s just not. To me, honestly, it doesn’t matter if you’re pro-choice or anti-choice. Everyone is entitled to their own opinions and beliefs. I can respect different opinions, but I can’t respect someone who tries to subvert the political process. People with power and influence who tamper with the political process to impose their beliefs on other people—I really can’t respect that.

Rewire: There are a lot of entry points for conversations about abortion access. What brought you to focus on TRAP laws?

DP: People often discuss abortion in terms of morality, but that’s not what we should be talking about. The reason why these laws have been so effective is because they successfully harm the least powerful of the group they’re targeting. Who’s getting picked on, who’s suffering the most? Women of color, people who are low-income, people who don’t have health insurance. There’s something so unjust about how these laws are disproportionately affecting these populations, and that really bothered me. I’m certainly interested in abortion as a topic, but I’m also interested in politics and power and how those things take shape to hurt the most vulnerable.

Rewire: In TRAPPED, we get to see a very personal side of all the clinicians and providers. One clinician discusses having to be away from her six children all of the time because she’s always at the clinic. We get to see Dr. Willie Parker at church with his family. And it was amazing to learn that the remaining providers in Alabama are friends who regularly eat dinner together. Was it intentional to humanize providers in a way we don’t usually get to see?

DP: Absolutely. The anti-choice side has successfully painted the picture of an abortion provider as this really shady, sinister person. I spent three years embedded in these clinics, and that couldn’t be further from what I saw. These are passionate, brave people, but they’re also very normal people. They’re not superheroes or super villains. They’re just normal people. It’s not that they don’t think about what they’re doing; they’re just very resilient and courageous in a way that makes me very proud. I wanted people to see that.

Rewire: Honestly before watching TRAPPED, I never thought about the personal toll that pressure takes on providers. Dalton Johnson used his retirement funds in order to continue providing abortion care. In several scenes, we see an emotional Gloria Gray struggling with whether or not to keep fighting these laws. Do you think people generally understand what it’s costing providers—financially and emotionally—to continue operating?

DP: I don’t think a lot of us think about that. People like Dalton are saying, “I would rather cash out my retirement than give in to you people.” We should not be asking people to make that kind of sacrifice. That should not be happening.

We also don’t spend enough time thinking about or talking about all of the things that have happened to create the conditions we’re now dealing with. It’s like a perfect storm. Medical schools are not training abortion providers, and the abortion providers that are around are getting older and retiring. Of course laws keep getting passed that make it more and more difficult to run a clinic. In this kind of environment, can you really blame people for not wanting to be providers? Especially when there’s the added pressure of having to take not just your own safety into account, but the safety of your family.

Anti-choice people target the children of abortion providers. They target them at home. This is a hard job if you want to have a life. I mean that literally too—if you literally want to have your life.

This is why so few go into this field. As the number of providers in some states continues to get eliminated, the burden left on those standing is exponentially greater.

The reason why we have a crisis around abortion care is not just laws, but because we have so few physicians. There are all of these factors that have come together, and we didn’t even get to cover all of it in the documentary, including the fact that Medicaid doesn’t cover abortion [under federal law. Seventeen states, however, use state funds to cover abortion care for Medicaid recipients.] A lot of this is the result of conservative lobbying. People have to be aware of all the pressures providers are under and understand that we didn’t get to this point of crisis accidentally.

Rewire: It can feel hopeless, at least to me. What gives you hope when it comes to this unrelenting battle for reproductive rights in this country?

DP: I don’t feel hopeless at all. I feel like it’s really important to be aware and vigilant and connect these dots. I wanted to help people understand the complications and the challenges providers are up against.

These providers have done their part, and now it’s time for the rest of us to do ours. People can vote. Vote for people who prioritize providing education and medical care, rather than people who spend all of their time legislating an abortion clinic. Alabama is in a huge fiscal crisis. The education system is a mess. The Medicaid system is a mess, and the whole Alabama state legislature worked on a bill that would affect a couple of abortion clinics. Voters need to decide if that’s OK. I think this is all very hard, but it’s not at all hopeless.