A new Massachusetts law requires protestors to stand at least 35 feet from the entrances to abortion clinics. Under the old law, they were required to stand 18 feet away, but could enter the zone if permitted to by the patients. Passer-by and pro-choice advocates are permitted in the 35-foot zone; protestors (however peaceful) are not. Pro-abortion advocates argue that the restrictions are necessary to stop someone like John Salvo, who actually entered a clinic in 1994 and opened fire.
In order to meet Constitutional muster, a restriction on free speech must be narrowly tailored to meet a compelling state interest. As a matter of common sense, there is little point making restrictions based on something that one person did thirteen years ago that would not be stopped by the proposed law. The asserted compelling state interest is presumably to allow women access to abortion clinics:
Some of the more contentious scenes outside the Planned Parenthood clinic in Allston, officials there say, have occurred on the second Saturday of each month, when abortion opponents hold a special prayer vigil there, and the crowd of protesters can grow to 50 or 100.
Ooohhh… prayer vigils! Scary and wild!
This law is hardly narrowly tailored to meet this interest, especially considering that the alleged bad behaviour is already illegal. Abortion advocates claim that protestors block entrances to clinics. Well, call the police. They claim that protestors make videotapes of people’s cars and license plates (although that information is practically useless; many people don’t even know their own license plates, let alone those of their friends and extended family); there is little stopping the clinic owners from videoing the videographers and using that information if the women are subject to later harassment. Harassment is already illegal. Free speech is not, nor should it be. There is little sense in banning the latter because one is too lazy to avoid prosecuting the former.
Sidewalks are quintessential public forums – the most sacrosanct of places for debate and discussion. The Court frowns upon non-content neutral restrictions; this one, which permits pro-abortion advocates inside the zone but forbids pro-life advocates the same, is certainly not content-neutral.
The Court’s reasoning in Hill v. Colorado is internally inconsistent. It claims, in asserting a compelling state interest, that pregnant women have a right to be free from unwanted speech that would cause trauma. The only rational way to read this element is to be free from pro-life speech; pro-choice speech would hardly traumatise her. The Court then declares the restriction to be content-neutral, as it prescribes a place of protest, not the elements therein (distinguish the Massachusetts regulation), and states that the ban applies equally to all opinions. It strains logic to state that a ban is enacted because pro-life speech is fantastically traumatising, but that the ban is content-neutral.
Obviously, pro-choice advocates are distressed at the continued opposition to their political position and the continued opposition to abortion law. There is certainly a basic civil right to try to enact the laws that one prefers to have, and to enforce them (instead of allowing them to be a dead letter) once so enacted; however, there is no right – legal, philsophical, or moral – to forbid others from protesting the enactment and enforcement of that law. You have abortion on demand; that doesn’t mean we have to be happy about it.