AP Photo/Jacquelyn Martin

Abortion Is Still Legal — But Soon, The Supreme Court May Make It Much Harder To Get One

Later this month, abortion rights supporters around the country will celebrate the 41st anniversary of Roe v. Wade. But just one week earlier, on January 15th, the Supreme Court will begin hearing arguments on a different abortion case, one that could make obtaining the procedure that much more difficult.

McCullen v. Coakley, or the Massachusetts Buffer Zone case, signals to anti-choice activists that the Supreme Court may be open to considering allowing nearly unlimited access to the patients, workers, and volunteers at abortion clinics — all under the guise of protecting the free speech rights of protesters and sidewalk counselors. The case involves a challenge to the ordinance that forces anti-abortion activists to remain 35 feet away from clinic entrances, exits, and driveways.

Eleanor McCullen, as well as the other “counselors” who regularly picket and leaflet at the state’s clinics, feel the rule is a violation of their free speech, as well as inhibits their ability to talk directly to patients. Abortion rights supporters, on the other hand, state that the buffer provides the proper amount of space to ensure the safety of patients and staff, as well as keeps the friction between the opposing groups from growing into something more volatile. They point to the clinic shootings that occurred in Massachusetts less than 20 years ago as a sign of what can happen when anti-abortion activism escalates into violence.

That highest court in the country has agreed to hear the case at all leaves many reproductive rights advocates worried about its intentions. At every point in the appeals process, the judges in question have determined that the 35-foot buffer strikes the right balance between giving anti-abortion activists access to clinics — and the freedom to street preach, leaflet, pray, and display pro-life signs or graphic abortion images — while still allowing patients, escorts, or staff unimpeded access to the building. By taking up McCullen, is the Supreme Court signaling it sees something different than the previous courts did?

Current Buffers Protect Patients, Anger Protesters

Should the Supreme Court decide to strike down the buffer zone law, the ripple effects would extend far outside of Massachusetts. It would be felt as well in Portland, Maine, where a newly passed ordinance created a 39-foot buffer around the local Planned Parenthood. Clinic employees have seen patients, their partners, and even just Portland citizens who happen to walk past the clinic, harassed by Pro-Life Missionaries of Maine and other anti-abortion activists.

Leslie Sneddon, a regular protester at the clinic, said that the ordinance hasn’t stopped her own personal efforts, only moved her a little further down the street. However, she told the media she and her fellow activists are documenting the how many missed patients they are unable to directly speak to because of the ordinance, a likely sign that legal wrangling over the Portland buffer could be on the horizon.

The clinics that don’t currently have buffers have needed to develop other arrangements to keep abortion opponents away from patients and volunteers. In Alabama, a heated back and forth between reproductive rights activists and anti-abortion protesters in Huntsville has resulted in a number of police calls and even lawsuits. Two of the most recent cases involved a teen who claimed clinic escorts assaulted him by pushing him out of the way when he tried to talk to a patient, and an elderly but often aggressive protester who sprayed an escort with what she claimed was “holy water” (the victim worried that the unlabeled bottle could have contained something toxic).

“They’ve done some of the most horrible things,” said Pamela Watters, a volunteer and clinic escort, recounting the number of both verbal and physical assaults many of them have experienced over the years. “Once, an anti from Virginia shoved a lot of us, but the final straw, he pushed a volunteer, a great grandmother, into a patient’s moving car. He hasn’t been back — there is a warrant for his arrest waiting on him. We have been hit with signs, called names, and an evangelical preacher used to use an amplified bullhorn to preach and say terrible things to the staff, patients, and volunteers.”

To de-escalate the increasing tension in front of the abortion clinic, the city of Hunstville broke the sidewalk into portions, granting the permit to the area directly in front of the clinic to pro-choice activists instead. Protesters are now relegated to across the street or further down the sidewalk. Clinic volunteers raised funds to purchase a privacy fence for the business next door now affected by their presence, which blocks the protesters and their signs from view.

Could Chicago’s Bubble Zone Be In Danger?

One city that could be dealt a major blow if the Supreme Court decides buffer zones infringe on freedom of speech is Chicago. The city put its own buffer zone law into effect in 2009, dramatically changing the interaction between anti-abortion protesters and those trying to access the clinic.

Throughout the nineties, clinic escorts said that protesters gathered in mass, physically blocking entry to the building and coming into direct contact with both the escorts and the patients or doctors they were accompanying. Even after the passage of the FACE Act, which made physically blocking an entrance a crime, the presence and interaction of “sidewalk counselors” at the various abortion providers in the city made approaching the clinics a daunting task.

Now, with the ordinance in place, all abortion opponents must stay at least 8 feet away from the patient as long as the patient is within 50 feet of the clinic entrance. This means that with no patient in the area, a protester can be as near to the door as he or she pleases, but, once a patient arrives, the “bubble” must be maintained.

To Benita, an escort for Illinois Clinic Action Team (ICAT), the bubble doesn’t solve every issue. But it does allow patients to feel as safe and secure as they can be, without infringing on the protester’s ability to show vocal and physical opposition to abortion.

“Once a month, we deal with anti-choice activists that wear orange vests similar to our clinic escort vests to confuse patients,” said Benita. “They give baby booties in gift bags to patients and even videotape patients as they walk into the clinic. On a weekly basis, the ‘regular’ antis are there trying to shove pamphlets in cars trying to park and scream anti choice slogans at patients. The buffer zone also doesn’t stop the verbal assault on us. We have been called Nazis, Baby Killers, Devil Worshipers, Abortion Bitches, and the list goes on.”

“All of our clinics really benefit from the buffer zone, but one clinic could really be put in danger if it were lifted,” said Benita. “I can only imagine with fear what that clinic would look like again if the buffer were lifted.”

Tom Brejcha, the President and Chief Counsel for the right-wing Thomas More Society in Chicago, has been working on doing just that. He said there were plans underway to challenge the city’s buffer zone locally, but those were put on hold once the Supreme Court agreed to hear McCullen v. Coakley.

“The enforcement is erratic in the way it is applied,” explained Brejcha. “It depends on which police answers the calls as to how it is enforced. You are allowed to stand within the 50 feet, but then some police say ‘No, you can’t.’ We’ve defended people who stood next to the clinic doorway and they were prosecuted and the charges were always thrown out because they were standing in a fixed spot and they weren’t approaching someone.”

Regardless of the lack of consistency in the application of charges for allegedly violating the ordinance, Brejcha says that the buffer zone is a straight free speech issue. At its most basic, it is simply an unconstitutional infringement on an attempt to persuade someone not to patronize a business.

“The granting of circ on McCullen suggests there are at least four votes on the Supreme Court, and potentially five, that agree with that,” said Brejcha. “The whole idea of buffer zones are up in the air now. It all depends on who casts the fifth vote. And maybe it won’t be a fifth vote. Maybe it will be a more bipartisan decision.”

A Glimpse Into A World Without Buffer Zones

So what would it look like if all buffer zones were removed as an infringement on free speech? Without any concerns about repercussions for approaching patients, blocking escorts, using sound systems or harassing language, many clinics could begin to look a lot more like the one in Louisville, Kentucky.

EMW Women’s Surgical Center of Louisville, one of the only two clinics in state, is nestled near the boarder of Indiana, serving the southern half of that state as well. To access an abortion, which can be done up to 22 weeks, a pregnant person first needs to pass through a gauntlet of street preachers, graphic signs and leaflets. On an average day, approximately 40 protesters line the sidewalks outside the clinic — and when students from local bible colleges are bused in, that number can swell to almost 100.

Some speak of their own abortions that they regret. Some tell patients they don’t need to end their pregnancies, and that someone will give them clothes, diapers, formula, or take the baby if they decide to carry to term. Some use megaphones. Some carry signs depicting aborted fetuses. Most will tell a patient, along with anyone accompanying that patient, that abortion is sin and murder.

Others are far more aggressive. According to clinic escorts in Louisville, some protesters will insert themselves in the open car door so a patient can’t get out of a vehicle, or close the door. On the occasion that one of the multitude of protesters recognizes a patient, he or she may call the patient by name, pleading with her not to abort or, even worse, call that patient’s family members to tell them where they are.

Then there are the chasers. Without a buffer zone to protect patients, someone entering the clinic can be trailed from the moment a car door is opened to the moment the person enters the building. Just as bad, they can be followed closely from the moment they pass through the clinic doors until they are safely back inside the car.

Escorts in front of the clinic say they aren’t there to protect clients, per se, but to make their path to the door as easy as possible. “We try our best to minimize the client’s exposure to antis by steering them down a path of less resistance, or distracting antis,” explained Meg, who has been escorting in Louisville for 14 years. “We also chat with clients in a calm low tone to give them something to focus on other than the chaos as we walk.” When necessary, they will intervene to act as a physical buffer around a patient, but for the most part they try to keep emotions and interactions from escalating as much as they can.

Unfortunately, Meg and her fellow escorts know that if a situation does grow into one where a protester physically impedes access to the entrance, they have very little recourse. “Sometimes we resort to calling the local police, but it’s inconsistent whether they’ll show up quickly, or be supportive of us at all,” said Meg. “And almost no local law enforcement is aware of FACE, and if they are aware they have a hands off approach.”

What Will The Justices Decide?

Ultimately, if the Supreme Court strikes down the buffer zone in McCullen v. Coakley, every clinic sidewalk could potentially turn into the sidewalk in Louisville, where anti-abortion protesters can openly chase clinic patients, “exorcise” escorts, and block doors — not with the metal or even human chains they used in the nineties, but with the emotional force of 100 bodies lining the street, shouting that you are a murderer.

That type of “freedom of speech” won’t just be condoned; it will be actively encouraged at every clinic in every state in the country. The freedom to determine if you choose to carry a pregnancy to term, however? That could become a thing of the past.

Robin Marty is a freelance writer, speaker and activist, and the author of Crow After Roe: How Women's Health Is the New Separate But Equal and How to Change That. Robin's articles have appeared in Ms. Magazine, Rolling Stone, Bitch Magazine,Talking Points Memo and other publications.

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