The Supreme Court’s recent ruling upholding a 36-foot buffer zone in front of a women’s health center and restricting loud noise during operating hours struck a careful balance between women’s reproductive rights and the right of Operation Rescue, an anti-abortion group, to engage in peaceful speech.
The injunction imposed by a Florida court was not the first attempt to accommodate these two important freedoms. Long before the buffer zone was created, the Aware Woman Clinic took Operation Rescue to court for unlawful blockades and harassment of patients. The Florida court first issued a less restrictive injunction, ordering Operation Rescue not to interfere with clinic access.
But Operation Rescue continued its forcible tactics designed to prevent access to the clinic. After a second hearing, the Florida court determined that stronger measures, including a buffer zone, were necessary to ensure women’s right of access.
In reviewing the constitutionality of the injunction, Chief Justice William Rehnquist, writing for the majority in Madsen vs. Women’s Health Center, agreed that the importance of protecting women’s freedom to obtain lawful abortion services, as well as public safety and medical privacy, justified the carefully-tailored injunction against Operaton Rescue’s conduct, despite the incidental limitation on their right to engage in speech immediately in front of the clinic.
In a thoughtful, well-reasoned opinion, Rehnquist stressed that protestors’ 1st Amendment rights do not demand that patients at a medical facility undertake “Herculean efforts” to escape the blare of protests. Citing an earlier case, he noted, ” `If over-amplified loudspeakers assault the citizenry, government may turn them down.’ ” The noise regulation and the buffer zone passed constitutional muster because less burdensome restrictions on the protestors had failed to safeguard these rights.
The court’s majority opinion is a sensible and measured response to the difficult question of how to balance protection of speech that is intertwined with unlawful conduct and protection of the constitutional and property rights of others.
If the Operation Rescue protestors had simply sung, chanted, prayed and picketed peaceably, no injunction would have issued, because these types of expression- unaccompanied by force and violence-are lawful, protected speech. But their primary method of opposing abortion is not speech, but blockades that physically prevent access to clinics. The fact that singing, chanting, praying or picketing accompanies forcible conduct does not render that conduct protected.
It is significant-and heartening-that Justice Rehnquist, who dissented in Roe vs. Wade 21 years ago, chose to write the Madsen majority opinion.
One need not support the right to choose abortion to recognize that harassment of women and medical providers is not an acceptable way to express opposition to this well-recognized constitutional right. In fact, most reasonable people agree that Operation Rescue’s tactics detract from any accompanying message. The organization is an embarrassment to law-abiding opponents of abortion who express their opposition in constructive ways-by making more choices available to women-rather than trying to eliminate lawful choices by force.
The correctness of the Madsen ruling is obvious when we consider how courts would respond to other forcible interferences with protected rights. Would we tolerate harassment of people at entrances to churches, synagogues and temples? Even apart from the constitutional nature of the rights at issue here, would our justice system allow protestors to block access to medical services like appendectomies or heart surgery ?
The Supreme Court’s Madsen opinion makes clear that people who behave responsibly when expressing their points of view may find they have more freedom to exercise their speech where they choose than those who insist on using force and violence to amplify their message. Those who inevitably combine their speech with assaults on other people’s rights may give the courts little choice but to create “safety” or “buffer” zones where the presence of such scofflaws is strictly prohibited.
It is reassuring that our citizens can turn to the courts to protect their basic rights from those who try to accomplish by force what their words could not accomplish by persuasion. After the Madsen decision, Operaton Rescue still has its words, if it chooses to use them, beyond the 36-foot zone.It was not Operation Rescue’s speech that caused them to be singled out for restraint-it was their persistently lawless and menacing conduct.
Protestors, no matter what their cause, are still free, and will be free, to express their messages lawfully. But those who insist on intermingling thuggery with their words will find themselves restrained. They have only themselves to blame if the locations from which they may speak are limited to accommodate the lawful rights of others.
