Every year, a majority of clinics experience at least one of five types of harassment: picketing; picketing coupled with physical contact or blocking patients or staff; vandalism; picketing of staff members’ homes; and bomb threats. Eighty-two percent of large reproductive health care facilities, which perform 94% of all abortions in the United States, experience one or more types of harassment in a given year.¹

Eighty-two percent of large reproductive health care facilities, which perform ninety-four percent of all abortions in the United States, experience one or more types of harassment in a given year.1

Disruptive picketing (defined as protest activity that harasses, intimidates, and impedes the movement of staff or patients) is an increasingly common means of harassing clinic patients and staff. In 2002, clinics reported over 10,000 incidents of disruptive picketing,² and a majority of clinics experience picketing at least 20 times a year.³ Clinics have also recently reported the rise of webcam use among protesters, who have posted pictures of patients and staff, as well as listed their names and license plate numbers, on anti-choice websites.⁴ Advocates and providers expect this disturbing trend in privacy invasion to continue to develop.

Not only does intimidating protest activity cause tremendous psychological stress to clinic staff and patients, but it may also adversely affect patients’ physical health. Patients who face confrontational protesters may experience raised blood pressure levels, which may weaken their health and complicate the procedures they undergo. The threatening appearance of protest activity has deterred patients from entering clinic facilities, even when they require immediate medical attention or when delaying the performance of a scheduled procedure increased the risk posed to the patient.

Unless the disruptive picketing escalates to a level of violence that constitutes a violation of the federal FACE law or a state equivalent, other legal remedies must be sought to assist abortion providers, clinic staff and patients who experience harassment and intimidation. Pro-choice advocates have attempted to hold anti-abortion activists responsible for their disruptions to clinics’ daily functioning and provision of services by suing them for criminal racketeering and extortion.⁵ Advocates have also attempted to prosecute protestors under state criminal laws (such as trespass or loitering). The most successful means of redressing disruptive picketing, however, has been the establishment of protective zones around clinics by states and municipalities.

To protect abortion providers and patients from intimidation and harassment by anti-abortion protesters, cities and states have passed legislation creating no-protest zones around entrances to reproductive health care facilities. By carving out protest-free space around clinic entrances, such legislation enables patients and clinic staff to freely enter and exit clinics without being bombarded with antiabortion materials and intimidated by confrontational "in your face" protesters. Such zones have also been established via court injunction.

Floating Protective Zones ("bubbles"):

One way that legislatures have promoted safe access to clinics is by passing legislation that creates floating protective zones (or floating "bubble" zones). Floating protective zone legislation requires protesters within a stated proximity to reproductive health care facilities to maintain a certain distance from patients and staff. These zones of privacy, which "float" around pedestrians as they enter and exit clinics, establish a zone of separation between protesters and patients.

For example, a Colorado law prohibits protesters from approaching within 8 feet of a patient or staff member within 100 feet of any health care facility unless the person consents to being approached (To read the statute, click here).⁶ The Supreme Court affirmed the constitutionality of this law in its 2000 decision, Hill v. Colorado, a case brought by anti-abortion protesters challenging the floating protective zones as an impingement on their First Amendment rights (To read the decision, click here).⁷ Paving the way for more floating protective zone legislation in the future, the Court concluded that the law legitimately restricted demonstration activity because it advanced the state’s important interests in protecting women’s access to abortion services and in promoting public health and safety.

The following year, the Massachusetts legislature passed a similar law establishing 6-foot floating protective zones around all pedestrians within 15 feet of a reproductive health care facility.⁸ The First Circuit recently affirmed the constitutionality of this speech restriction as well (To read the decision, click here).⁹

Fixed Protective Zones ("buffers"):

The state may also protect safe access to abortion clinics by establishing fixed protective zones (or "buffer" zones) around reproductive health care facilities. Fixed protective zones are areas of specified length and width around entrances to reproductive health care facilities within which protestors are prohibited from engaging in certain activity. Many of these fixed protective zones were created under injunctions issued by state and federal courts in order to protect clinics that have experienced disruptive picketing and harassment. The Supreme Court has twice affirmed the constitutionality of these speech restrictions.¹⁰ In addition, several municipalities, such as Los Angeles, Denver and St. Paul have enacted local ordinances that establish fixed protective zones around all local clinics. These speech regulations have also withstood legal challenges from protesters claiming violations of their First Amendment rights. ¹¹

Other Protective Legislation:

In addition to creating protective zones around patients/staff and around clinic entrances, legislatures are also attempting to address protestor behavior in other ways. For example, in the 2003 legislative session, the Massachusetts legislature introduced a bill banning photography taken around clinic entrances with the intent of invading a patient’s privacy, coercing her out of reproductive health services, or threatening her with bodily harm. ¹² This bill seeks to curb a growing trend among anti-abortion protesters of photographing patients and staff entering and exiting clinics and posting their images on websites.

Clinic Access/FACE Laws | Federal and State FACE Laws | Picketing and Harassment

Endnotes, cont.
1. Lawrence B. Finer & Stanley K. Henshaw, The Accessibility of Abortion Services in the United States, 2001, 35 PERSP. ON SEXUAL AND REPROD. HEALTH 1, 22 (Jan/Feb 2003), available at http://www.alanguttmacherinstitute.org/pubs/journals/3501603.pdf.
2. NAF, Incidents of Violence and Disruption Against Abortion Providers, available at http://www.prochoice.org/Violence/Statistics/default.htm (last modified June 30, 2003).
3. Finer & Henshaw, supra note 29, at 22.
4. See http://www.prochoice.org/.
5. However, after a lengthy court battle, the Supreme Court concluded that defendants had not "obtained" property from the clinics within the meaning of the relevant laws and thus foreclosed the use of racketeering and extortion laws as a means of curbing clinic harassment and blockades. Scheidler v. Nat’l Org. for Women, 537 U.S. 393 (2003).
33. COLO. REV. STAT. § 18-9-122(3) (2003).
6. Hill v. Colorado, 530 U.S. 703 (2000).
7. MASS. GEN. LAWS ch. 266, § 120E 1/2 (2003).
8. McGuire v. Reilly, 260 F.3d 36 (1st Cir. 2001).
9. See Schenck v. Pro-Choice Network, 519 U.S. 357 (1997); Madsen v. Women’s Health Ctr., 512 U.S. 753 (1994).
10. See, e.g., United States v. Scott, 187 F.3d 282 (2d Cir. 1999); Edwards v. City of Santa Barbara, 150 F.3d 1213 (9th Cir. 1998); Fischer v. City of St. Paul, 894 F. Supp. 1318 (D. Minn. 1995).
11. S.B. 1114, 183rd Gen. Ct., Reg. Sess. (Mass. 2003).