ABORTION PROTESTING
EDITED BY KYLE CASEY, MELL CHHOY, AND SERENA DINESHKUMAR
I. INTRODUCTION.......................................... 259
II. THE CONGRESSIONAL RESPONSE TO CLINIC PROTESTS: FREEDOM OF
ACCESS TO CLINIC ENTRANCES ACT OF 1994 . . . . . . . . . . . . . . . . . . . . 261
III. ABORTION PROTESTS AND THE COURTS: STATE INTERESTS AND
THE FIRST AMENDMENT ................................... 266
A. CONTENT NEUTRALITY ................................ 267
B. NARROW TAILORING ................................. 267
C. ALTERNATIVE MEANS OF EXPRESSION ..................... 268
IV. ABORTION PROTESTING POST-DOBBS .......................... 268
V. CONCLUSION ........................................... 269
I. INTRODUCTION
From the 1973 Roe v. Wade decision
1
until 2022, the Supreme Court recog-
nized abortion as an exercise of a fundamental privacy right grounded in the
Constitution. In June 2022, the Supreme Court announced its decision in Dobbs v.
Casey and holding that the Constitution does not confer a right to abortion.
2
The
Dobbs decision rested partially on the argument that abortion remains controver-
sial, surrounded by emotionally charged debates that combine issues of politics,
gender, and healthcare.
3
See Quinnipiac University Poll, Sept. 10–13, 2021, POLLING REPORT, https://perma.cc/2T8L-
XPYX (noting that, of those polled, 66% believed abortion should be legal “in all” or “in most” cases,
compared with 29% who believed it should be illegal in all or most cases).
Accordingly, people express their views on abortion
through various forms of advocacy and protest.
The right to protest is at the core of free speech, protected by the First
Amendment.
4
The 1960s civil rights movement used protest successfully to edu-
cate the public and ultimately bring about changes in the law.
5
Abortion protest-
ing has differed from other forms of protesting, however, because of the
2. Dobbs, 142 S. Ct. at 2234.
3.
4. See U.S. CONST. amend. I (“Congress shall make no law .. . abridging freedom of speech.”).
5. The civil rights movement is referenced by both sides of the debate surrounding abortion
protesting. On one side, anti-abortion protesters argue that it is an example of the good that can come
from protest movements challenging the government. On the opposition, pro-abortion activists
characterize protests as a form of force preventing women from getting abortions. The Freedom of
Access to Clinic Entrances Act of 1994 was modeled after the Civil Rights Act of 1968 and was
intended to prohibit the use of force against people exercising their constitutional rights. See Arianne K.
Tepper, In Your F.A.C.E.: Federal Enforcement of the Freedom of Access to Clinic Entrances Act of
1993, 17 PACE L. REV. 489, 500–02 (1997).
259
