Anti-Choice Legal Attacks Make It Harder to Access Clinics Themselves

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Analysis Abortion

Anti-Choice Legal Attacks Make It Harder to Access Clinics Themselves

Jessica Mason Pieklo

In addition to helping pass abortion restrictions at the state level, anti-choice activists are challenging those laws that do protect clinics and patients.

Restrictions on abortion rights and access are not limited to the variety pack of legislation advanced by anti-choice lawmakers year after year. In their attempts to obstruct patient access to providers and clinics, the anti-choice movement has gone on the offense at the local and state level. Not only do clinics often have to adhere to arbitrary standards primarily enacted to make it more difficult to provide care; the laws set up to protect their care, and their patients, are under attack. 

The result of these targeted strikes is to further shred the already patchwork access to abortion care. After navigating the varying morass of legal restrictions—such as waiting periods that force patients to make multiple trips to providers; mandatory ultrasounds that require unnecessary and misleading medical care; and laws that cut off abortion access altogether at 20 weeks’ gestation on the scientifically unsupportable grounds of fetal pain—patients must then face protesters approaching them in cars, writing down their license plate numbers, or creating a shouting “walk of shame” before they can get to the services they need. 

The Freedom of Access to Clinic Entrances (FACE) Act

Congress passed the FACE Act in 1994, making it a federal crime for anyone to use force, the threat of force, or physical obstruction to prevent people from obtaining or providing reproductive health-care services. The statute also provides for civil remedies against blocking access to abortion facilities, including fines for those found liable.

Despite these federal protections, though, threats against clinic patients and providers are at an all-time high. Emboldened by an ever-increasing number of abortion restrictions at the state level and the increasingly violent rhetoric aimed at both providers and patients, anti-choice activists have increased their attempts to cut off clinic access. A recent protest in Louisville, Kentucky, suggests these activists are about to return to the clinic “siege and blockade” tactics that prompted passage of the FACE Act to begin with.

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Furthermore, activists like Angel Dillard, who was accused of threatening Kansas abortion provider Dr. Mila Means, have claimed threats directed at providers are actually a form of protected free speech. Dillard made this exact claim in 2016 during her trial for FACE Act violations based on a 2011 letter she sent to Means telling her to start looking for bombs placed under her car, should she take over the medical practice of Dr. George Tiller. Dr. Tiller was assassinated in 2009 by Wichita anti-abortion activist Scott Roeder. Almost immediately after Roeder’s arrest and charge, Dillard befriended Roeder and claimed she was a minister to him while in prison. In 2016, a jury in Wichita, Kansas, agreed with Dillard.

It is also vital to remember that FACE Act enforcement falls within the Department of Justice—given that Attorney General Jeff Sessions is a longtime opponent of abortion rights and access, clinic protesters likely feel they have the necessary cover from FACE Act prosecution.

State-level clinic access laws

Many states also have their own clinic access statutes that supplement the FACE Act. Those include “bubble” or “buffer” zone laws, which prevent certain activities near or around abortion clinics. Bubble zones protect a person within a specific distance of a clinic’s entrance, while “buffer” zones protect a specific area around a clinic entrance. These protective zones aim to preserve the protest rights of individuals while also assuring safe and unrestricted access to abortion clinics.

In 2014, a unanimous U.S. Supreme Court amplified the fight over abortion clinic access and held that a Massachusetts law that provided for a 35-foot buffer zone around abortion clinics is unconstitutional. The Court did not outlaw buffer zones entirely in its decision. Instead, it determined that the Massachusetts law was not narrowly tailored enough to meet the requirements of the First Amendment, burdening more speech than necessary. That law created a 35-foot fixed zone around any reproductive health-care facility, no matter the type of protest. Instead of buffer zones, the Court suggested clinic protesters could be managed through other means, such as enforcing local protest ordinances.

The decision also left in place a 2000 Supreme Court ruling, Hill v. Colorado, which upheld a Colorado clinic protection law. The Colorado law contains both a bubble and a buffer. It prohibits any person within 100 feet of any health-care facility from approaching within eight feet of another person without their consent in order to hand them literature, protest, or “counsel” them. In other words, the 100 feet acts as a buffer zone around the clinic and the eight feet as a bubble zone around patients and providers. That means, for now at least, the standard for testing the constitutionality of clinic access laws is that Colorado law.

The Massachusetts case did another significant thing: In Hill, the 6-2 majority opinion balanced the First Amendment rights of patients and providers to be left alone with the speech rights of the protesters. In striking the Massachusetts law, the Roberts Court completely disregarded that right to be left alone; instead, it focused singularly on the speech and protest rights of the “plump grandmas” engaged in “sidewalk counseling.” The effect was to legally overlook the rights of patients and providers in Massachusetts altogether.

Fourteen states, as well as a number of municipalities, have clinic access laws in place—and anti-choice activists have set their sights on undoing them. In Chicago, for example, veteran abortion clinic protester and Pro-Life Action League Vice President Ann Scheidler challenged the city’s bubble zone ordinance, arguing the measure violated her First Amendment rights and that local law enforcement officers were unlawfully, and selectively, enforcing it. A lower court refused to block the ordinance entirely; Scheidler and the other plaintiffs have appealed that decision to the U.S. Court of Appeals for the Seventh Circuit. Meanwhile, the Chicago Police Department settled the claims the department was unlawfully enforcing the ordinance, agreeing to undergo additional training on how to approach protesters and clinic escorts when such protests are underway.

For those cities or states without clinic access laws, patients and providers are left with only the FACE Act to protect their rights.

Protest restrictions and other zoning ordinances

In addition to targeting clinic access laws in those states that have them, anti-choice activists also make a variety of arguments to go after local protest ordinances, which most municipalities have. Those local protest ordinances, such as noise control regulations, do not target protesters at clinics specifically. Instead, they are generally applicable laws designed to curb excessive noise and other disruptive behavior at all protests.

But yelling at patients and providers through a megaphone, or blasting music at the clinic and those entering and exiting, are common protest tactics patients and providers must navigate for clinic access. As was the case in Maine, abortion clinic protesters often challenge the ordinances once they face charges for violating them, arguing they are unconstitutional restrictions on free speech. These claims have seen mixed results in the courts.

These challenges extend to other local laws as well. Missouri lawmakers are especially hostile to abortion rights and access, but that didn’t stop reproductive rights advocates from passing and enacting in February an ordinance in St. Louis providing for non-discrimination in the delivery of reproductive health care, including abortion. Anti-choice activists decried the measure immediately, calling it an “abortion sanctuary city” law; they sued in federal court to block it. As that lawsuit proceeds, Republicans called an ongoing special legislative session specifically targeting the St. Louis ordinance.

In Raleigh, North Carolina, a fake clinic, or so-called crisis pregnancy center (CPC), sought permission from local regulators for a zoning change that would allow it to open a facility next door to an abortion clinic in the city. Regulators initially rejected the application. But they reversed course, allowing the zoning change and the facility to open, once the CPC sued, arguing the city had violated its First Amendment rights by denying its application.

Local disclosure laws

Anti-choice protesters have also sued to block local disclosure laws that require all reproductive health-care providers to notify pregnant patients of all available health care options, including abortion. Most recently, protesters have targeted Illinois’ disclosure law. They claim that the law violates their First Amendment free speech and religious rights. Anti-choice activists who filed similar challenges lost in California and got a partial victory in New York

Simply put, the legal protections in place for abortion providers and patients are insufficient to both protect their physical safety and guarantee the unrestricted access entitled under the law. Anti-choice lawmakers have already successfully rolled back abortion rights and access so successfully that there are now seven states with only one abortion clinic. There’s no reason to believe the anti-choice movement will stop their attacks until they achieve their goal of closing every clinic in the country.