Capitol Violence Leads to New Protest Protections at the Supreme Court

But how many more acts of violence will it take until abortion providers get the same protections as lawmakers?

[PHOTO: Protective fencing is around the Supreme Court building]
Even the Supreme Court got a brand-new fence. But abortion clinics have been under siege for decades, and there are no physical barriers or legal buffer zones protecting them. Al Drago/Getty Images

“The terror was visceral, and I had to sit down, close my office door, and have my panic attack in private. I cried again in my car and when I got home. It wasn’t until hours later that I was able to even recognize that I reacted in that way because of the constant fear of violence that we live with every day.”

That was Dr. Diane Horvath’s reaction when she heard the news of the January 6 insurrection. Horvath is an abortion provider in Baltimore, and like many abortion providers nationwide, for her the violence at the U.S. Capitol was not unfamiliar.

That’s because every single day, abortion providers go to work with the knowledge that they are targets of violence—that their colleagues have been assassinated and their patients are often taking a risk simply by entering the building. They keep bulletproof vests on hand, and offer escorts to usher patients through aggressive crowds of protesters. This is the reality of providing abortion in the United States.

This sort of violence became the reality for members of Congress who gathered earlier this month to tally electoral votes. And within 24 hours of the siege, a big fence—a buffer zone, if you will—was placed around the Capitol to protect lawmakers from more violence.

It took one (very violent) uprising in Washington for barricades around the Capitol to be erected. Even the Supreme Court got a brand-new fence, to keep the nine justices safe from terrorism. But abortion clinics have been under siege for decades, and there are no physical barriers or legal buffer zones protecting them. Which raises the question: Why not? Why aren’t the protections afforded to Congress allowed at abortion clinics?

Because six years ago, the Supreme Court—which itself enjoys the protection of a buffer zone—ruled in McCullen v. Coakley that clinic buffer zones are an unconstitutional infringement on the First Amendment rights of so-called sidewalk counselors.

McCullen involved a Massachusetts buffer zone law enacted in the wake of violent attacks on clinic workers in the early 1990s. The conflict culminated in 1994, when John Salvi opened fire on two abortion clinics, killing two people and injuring five others. Witnesses said he shouted, “This is what you get! You should pray the rosary!” while he shot one of the victims ten times.

Following this massacre, Massachusetts enacted a 35-foot buffer zone around clinics. The law didn’t prohibit anti-choice protesting altogether; it just ensured that clinic workers and patients would not have to walk a gauntlet of people shouting “Baby killers!” at them for trying to enter an abortion clinic. Seems rational enough, right?

Well, not for the Supreme Court, which struck down the law in 2014, saying it violated the First Amendment. The protesters argued that a buffer zone violated their freedom of speech, and the Court agreed, handing down a decision that jeopardized the safety of providers and patients nationwide.

At the heart of the issue is the question of what kinds of speech the First Amendment protects. In 1969, the Supreme Court ruled in Brandenburg v. Ohio that the government cannot restrict violent speech unless it’s “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

But the kind of speech spewed by anti-abortion terrorists is incitement to violence. This isn’t hyperbole: For years, Bill O’Reilly waged war on Dr. George Tiller, calling the abortion provider a “baby killer” operating a “death mill.” That is until an anti-abortion extremist walked up to Tiller one morning at church and assassinated him. Years later, after anti-choice activists doctored videos to accuse Planned Parenthood of selling “baby parts,” Robert Dear opened fire in a Colorado Planned Parenthood clinic and shouted that exact phrase.

These are not coincidences—they’re cause and effect. The same way it’s not a coincidence that the insurrectionists spew the same rhetoric Trump does.

So the question becomes: How many more acts of violence will it take for the courts to realize abortion clinics deserve the same protection as our lawmakers? How many more days will providers have to go to work in fear, with targets on their backs, without the same protections Congress gave themselves overnight?

Because while members of Congress return to work behind the protection of barriers and increased law enforcement, abortion providers continue to do the critical work of providing care for patients while worrying if they’ll be next.