Wise Call on Clinic Protests

The recent decision by a state appeals court, allowing judges to order protesters away from face-to-face confrontations with patients outside abortion clinics, is a clear and welcome reaffirmation of the right to abortion in California. It is more evidence, as well, that the U.S. Supreme Court’s ruling last month involving the use of federal troops at similar clinic demonstrations was off base.

The First District Court of Appeal upheld most of an injunction issued in 1990 by a Solano County Superior Court judge, requiring anti-abortion protesters to stay across the street from a Vallejo family planning clinic. The protesters tried to discourage women from entering the clinic by blocking the driveway, offering them plastic fetuses and telling them that they were killing a baby.

The panel held, 3 to 0, that the state constitutional right to privacy allows courts to protect women seeking abortions by excluding abortion foes from the clinic parking lot and a narrow public sidewalk in front of the facility. But the panel held that the right to free speech was violated by a section of the injunction that bars protesters from calling staff members “murderers” and asking them not to “kill babies.”

Even so, the case is a strong counterpoint to last month’s U.S. Supreme Court decision barring a Reconstruction-era civil rights law from being used against clinic blockaders.

That decision did not preclude state courts from issuing injunctions against abortion protesters under state law. Congress is now considering a bill that would make it a federal crime to block entrances to medical clinics as a means of protest.

A new California law that took effect last month bars demonstrators from physically blocking individuals who wish to enter or exit a health care facility, church or school. The appeals court ruling should put some meat on the bare bones of this statute. The Vallejo clinic injunction requires demonstrators--who did not physically detain patients or clinic personnel--to remain across the street. In so doing, the appellate panel wisely recognized that women who, as a result of intimidation, cannot exercise their constitutional right of choice have little right at all.

For that reason, if the Vallejo case is appealed to the state Supreme Court, as is likely, the high court would do well to follow the First District’s lead.