Women Have a Right to Choose and Protesters Have a Right to Protest

In a free society, everyone has to tolerate a certain amount of discomfort and fear—even vulnerable people seeking abortions.

A young woman opposes a group of protesters outside an abortion clinic. (Taber Andrew Bain/Flickr)

When I characterize support for the Massachusetts buffer zone law now before the Supreme Court as essentially emotional, I mean no disrespect. For pro-choice activists, the buffer zone will always be linked to the fatal 1994 assault on the Boston area Planned Parenthood clinics that inspired it. Two clinic workers were murdered; five workers and volunteers were wounded. The memory of that attack -- the horror and fear it evoked – remains, especially for clinic workers and volunteer patient escorts, who dread running a gamut of protesters if, or when, the 35-foot buffer is eliminated.

So in persistently opposing the buffer zone, from the beginning, even in the near aftermath of the clinic murders, I plead guilty to hard-heartedness. In opposing the buffer zone, I’m demanding that patients and clinic workers tolerate anti-abortion activists who are bound to engage in some unruly, uncivil, and not necessarily arms-length protests.

I’m arguing that a woman’s right to right to choose and obtain abortions, and other reproductive heath services, doesn’t diminish her obligation to tolerate extremely irritating, occasionally hysterical, and potentially invasive protesters.

Among pro-choice advocates, including those who consider themselves civil libertarians, this is, not surprisingly, a minority view, perhaps a very small one. The ACLU has retreated from its initial opposition to the buffer zone; its amicus brief in McCullen now characterizes the Massachusetts law it once lobbied against as a “facially valid time, place and manner regulation.” But ACLU’s opposition was always rather tenuous. The Massachusetts ACLU board was sharply divided over the first buffer zone law enacted in 2000; as I recall, we voted to oppose the law by one vote after a more than usually heated debate.

Legal arguments against the law came easily; from my perspective, its unconstitutionality was clear. But putting aside emotional support for it was hard. Violence against abortion clinics was becoming a very scary fact of life back then. Opposing a buffer zone asked too much of women, especially young women and teenagers seeking abortions in a climate of fear, supporters of the buffer zone argued. In fact, we were asking a lot of them, but no more than what civil liberty demands of us all – a certain stoicism. Besides, absent an expansive buffer zone, women would not be deprived of all legal protection. Federal and state laws prohibit protesters from impeding access to clinics, and, as Harvey Silverglate points out, Massachusetts has longstanding penal law prohibiting harassment and disturbance of the peace.

These laws are all difficult to enforce, buffer zone supporters successfully argued when the 2007 law establishing a 35-foot zone was enacted (after an emotional legislative hearing recalling the 1994 murders). The expanded buffer zone was, in effect, an enforcement mechanism. Considering the difficulties of pre-sorting legal and illegal protesters, the Massachusetts legislature prohibited all protests with potential for illegality. In other words, the 35-foot buffer zone is an intentional prior restraint of speech. The impulse to impose it was understandable, given the history of violence, but sympathy for the emotions underlying a law doesn’t make it constitutional.

If the Supreme Court strikes down or narrows the buffer zone, as it seems likely to do, it will not diminish abortion rights in Massachusetts. It will increase the trepidation with which some women seek or provide abortions and other services through Planned Parenthood. But in a free society, some measure of trepidation and some sense of insecurity are burdens to be borne. We should know that by now, living in the shadow of the surveillance state. We can’t always conquer fear; but, more often than not, liberty requires us to endure it.