Your Right to Speak Is More Important Than My Right Not to Have Acid Thrown in My Face

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Women are getting killed. Since 1977, there have been 8 murders, 17 attempted murders, 42 bombings, 181 arsons, and 100 acid attacks at reproductive health care clinics.

In last week’s McCullen v. Coakley decision, the Supreme Court was asked to consider whether a Massachusetts law creating a 35-foot buffer zone to keep protesters away from reproductive health care clinic entrances or driveways is constitutional. In a unanimous decision written by Chief Justice Roberts, the Court held that this Act violates the First Amendment, delivering a crushing blow to women and advocates for women’s health everywhere. Here’s why they got it wrong.

Ever since Roe v. Wade legalized abortion in 1973, anti-abortion extremists have targeted reproductive health care providers and facilities across our country. Women who are just trying to access medical care, to which they have every legal right, are targeted with intimidation, harassment, and violence by people who disagree with their right to bodily autonomy. What started as organized protesting, has now led to blockading clinic entrances, bombings, and even chemical attacks, including 654 letters threatening anthrax poisoning sent to abortion clinics during a five year period alone.

In response to this escalation of violence, reproductive health care providers have been forced to take security measures such as hiring security guards, installing security cameras and bullet-proof glass, and wearing bullet-proof vests, just to try to safely perform their jobs helping women who choose to solicit their care.

These incidents are not isolated, and the cloud of fear that this threat creates has devastating effects. 92% of facilities report concern for the safety of their patients and employees entering their facility, while 90% of patients – and 60% of employees – have been scared for their personal safety. And eight out of ten facilities has had to call the police because of safety, access, or criminal activity concerns. This is simply unacceptable.

The Massachusetts law in question, creating 35-foot buffer zones around clinics, was enacted after a man shot Shannon Lowney and Lee Ann Nichols, employees at two different Massachusetts clinics. The Supreme Court upheld a state law creating an 8-foot floating bubble zone around persons within 100 feet of abortion clinics in the 2000 Hill v. Colorado case. That decision has since served as a model for buffer zones around the country. And while the majority’s opinion in McCullen did not expressly overrule Hill, there is a good argument to be made that it would effectively make buffer zones like those in Colorado unconstitutional.

Buffer zones are of critical importance to the safety of reproductive health care providers, patients and staff. And they have proven effective, leading to a decrease in violence, obstruction, and intimation outside of facilities since they have been adopted. In a 2013 survey, 51% of facilities with buffer zones reported a decrease in criminal activity near the facility after the buffer zone was instituted. And three out of four facilities with buffer zones said that the zones improved access for both patients and staff entering the facilities.

While McCullen cites a First Amendment right to freedom of speech, the Court blatantly disregards states’ freedom to impose “time, place, and manner” restrictions on free speech–which . The Court concedes that the Act is content-neutral: it doesn’t target anti-abortion speech for prohibition, but instead seeks to address a record of crowding, obstruction, and violence outside of clinics caused by speech of all kinds. Even those bringing the case do not dispute the state’s interests in ensuring safety and preventing obstruction.

The Court’s opinion says that the Massachusetts law unconstitutionally restricts access to public ways and sidewalks. But what about the patients? Now that the buffer zone has been eradicated, sidewalks will be more crowded than ever. And while protesters are still prohibited from actually obstructing access to a clinic under various local laws, history has shown that they often ignore the law and obstruct entrances anyway. What about these women? What about their right of way? What about their right to safely access medical care? The Court apparently did not have women in mind when they issued today’s opinion.

The likely and highly foreseeable consequence of eliminating buffer zones is not just that women will be harassed and attacked for exercising their legal right to seek reproductive health care, but that many women will feel uncomfortable enough to avoid the clinic altogether, forgoing the health services they need. Many reproductive health care providers now use clinic escorts to help women safely enter their facilities, a practice that itself shows the grave need for buffer zones outside of clinics.

And while the Court rejects buffer zones outside clinics, they remain an accepted practice elsewhere. As mentioned in a previous blog post, buffer zones are used in other contexts to safeguard the exercise of other fundamental rights, allowing us to vote, attend religious services, and go to school in relative peace.

It is particularly ironic – if not disturbing – that the Supreme Court itself maintains a massive buffer zone around it to prevent exactly the type of behavior clinic patients will now be subjected to thanks to its decision. Given the 252-by-98 foot buffer zone the Supreme Court maintains, it is apparent that the Justices themselves do not feel comfortable exposing themselves to the protests they have no trouble unleashing on others.

Moreover, in high contrast to the jarring statistics of clinic violence, the Court seems to think that abortion clinics are the perfect place for political discussion, and sees no problem with people trying to dissuade women from making choices about their own bodies and lives. Protests outside of clinics are often not civil, and are sometimes even violent. Even when they are not violent, the mere presence of protestors can be intimidating and coercive to women who are considering an important and very personal choice and have not solicited the protestors’ advice.

Before deciding that unrestricted free speech trumps all, that buffer zones are unnecessary, that protestors have more right to express their anger than women have to safely access medical care, think of Dr. David Gunn. Think of Shanon Lowney. Think of Lee Ann Nichols. They were all murdered simply for working at abortion clinics.

This case is not about free speech. Don’t be fooled into thinking that it is. This case is about the systemic and persistent effort to ignore and deny the very real needs of very real women by attacking their right to health care and to full bodily integrity, a war that the anti-choice movement in America has been waging ever since our victory in Roe v. Wade.


By Kristen French, Holley Law Fellow, National Gay and Lesbian Task Force