Harassment vs. Free Speech

Because so much political heat still attaches to the issue of abortion, it may be hard to view Wednesday’s Supreme Court decision on abortion protesters in other terms than as a victory or a defeat for advocates on both sides of this issue.

Yet the enduring significance of the court’s sensible ruling, more specifically defining the 1st Amendment rights of antiabortion protesters, really lies beyond abortion. The decision has implications for the rights of protesters engaged in a wide variety of issues, from gay rights activists to union picketers. It could also affect dozens of existing and proposed city ordinances restricting panhandlers.

The court held that antiabortion demonstrators have a free-speech right to confront pregnant women on the sidewalks outside clinics and strongly urge them not to undergo the procedure. The court struck down as unconstitutional a federal court injunction creating a 15-foot “floating” zone around patients and staff as they moved outside clinics in Buffalo and Rochester, N.Y.

Writing for the 8-1 majority, Chief Justice William H. Rehnquist held there is no “generalized right to be left alone on a public street or sidewalk.” Rather, picketing, leafleting and loud protesting “are classic forms of speech that lie at the heart of the 1st Amendment.”

But by a separate vote of 6 to 3, the justices reaffirmed a 1994 decision creating a protest-free zone at the doors or driveways of abortion clinics. The court also took care to note that while sidewalk protesters have a right to shout and confront persons on public property, they have no right to obstruct or physically threaten patients or clinic staff.

These distinctions are appropriate, but drawing a clear line between harassment and forceful free speech promises to be anything but easy for local jurisdictions and the courts.

Ironically, there may be less need to do that in the abortion context. The court’s 1992 decision affirming the constitutional right of women to choose to end a pregnancy and passage in 1994 of the federal Freedom of Access to Clinic Entrances Act, which imposed harsh new penalties on those who harm, threaten or harass anyone entering or leaving a clinic, have been followed by a precipitous drop in the number of violent incidents reported at women’s clinics. And the availability in this country, possibly later this year, of the French abortion pill RU-486 would allow women to seek an abortion in their doctor’s office instead of at a more visible clinic, possibly further thinning the ranks of those protesters outside.