ABORTION PROTESTING
EDITED BY CARSON GOOS & ELAINE MCCABE
I. INTRODUCTION.......................................... 245
II. THE CONGRESSIONAL RESPONSE TO CLINIC PROTESTS: FREEDOM OF
ACCESS TO CLINIC ENTRANCES ACT OF 1994 . . . . . . . . . . . . . . . . . . . . 247
III. ABORTION PROTESTS AND THE COURTS: STATE INTERESTS AND THE FIRST
AMENDMENT ........................................... 254
A. CONTENT NEUTRALITY ................................ 254
B. NARROW TAILORING ................................. 255
C. ALTERNATIVE MEANS OF EXPRESSION ..................... 256
D. MOVING FORWARD .................................. 256
IV. ABORTION PROTESTING POST-DOBBS .......................... 257
V. CONCLUSION ........................................... 261
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, holding that the Constitution does not confer a right to abortion.
2
The Dobbs
decision rested partially on the argument that abortion remains controversial, sur-
rounded 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 “most” cases,
compared with 29% who believed it should be illegal in all or most cases); Dobbs, 597 U.S. at 282, 302
(stating that abortion regulations impact women differently, depending on their “places of residence,
financial resources, family situations, work and personal obligations, knowledge about fetal
development and abortion, psychological and emotional disposition and condition, and the firmness of
their desire to obtain abortions .. .” and that “[a]bortion presents a profound moral question.”).
Accordingly, many people express their views on abortion through vari-
ous 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
educate the public and ultimately bring about changes in the law.
5
Abortion
2. Dobbs, 597 U.S. at 292.
3.
4. See U.S. CONST. amend. I (“Congress shall make no law . . . abridging the 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
245
protesting has differed from other forms of protesting, however, because of
the tension between the privacy rights guaranteed to abortion seekers and the
free speech rights of abortion protesters.
6
By linking abortion with fundamen-
tal constitutional rights,
7
Roe v. Wade set the stage for debate over access to
abortion services and rights associated with abortion protesting.
Anti-abortion activists have organized efforts to protest the legality of abortion
since Roe.
8
For example, each year on the anniversary of Roe on January 22nd, anti-abortion and pro-choice
groups alike rally outside the U.S. Supreme Court. See Karlyn Barker, After 32 Years, Roe Remains a
Lightning Rod, WASH. POST (Jan. 23, 2005), https://perma.cc/84JD-ZJM5; see also Scott Zipperle,
History of The March, MARCH FOR LIFE (Jan. 18, 2010), https://perma.cc/8V3U-UR9V; Ruth Graham &
Ava Sasani, March for Life Kicks Off in Washington, Setting the Stage for New Ideas, N.Y. TIMES (Jan.
20, 2023), https://perma.cc/4S4S-6K8H.
On occasion, abortion protestors have directly prevented abortion-
seekers from accessing healthcare services.
9
See 2022 Violence & Disruption Statistics, NAT’L ABORTION FED’N, 8 (2023), https://perma.cc/
JKW9-ZLX2.
Although the First Amendment pro-
tects an individual’s right to protest,
10
anti-abortion protesters’ actions exceed the
parameters of constitutionally protected free speech when those actions involve
violence and threatening behavior.
11
In response, abortion rights supporters
developed an arsenal of legal tactics for confronting anti-abortion protesting,
ranging from general trespassing laws to federal legislation specifically protect-
ing clinic access.
12
In the wake of Dobbs, however, state laws allow civil suits to
be brought against abortion rights activists,
13
and the effectiveness of the Roe-era
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, 511 (1997).
6. Although the right to privacy is not explicitly stated in the Constitution, the Court has recognized a
right to personal privacy, “or a guarantee of certain areas or zones of privacy,” under the Constitution
through a long line of decisions dating as far back as 1891. Roe, 410 U.S. at 152.
7. Id. at 164 (“A state criminal abortion statute ...that excepts from criminality only a life-saving
procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the
other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.”).
8.
9.
10. See U.S. CONST. amend. I (“Congress shall make no law . . . abridging the freedom of speech.”).
11. Virginia v. Black, 538 U.S. 343, 359 (2003) (stating that “true threats,” which “encompass those
statements where the speaker means to communicate a serious expression of an intent to commit an act
of unlawful violence to a particular group or group of individuals ...” are not protected by the First
Amendment.); see 2022 Violence & Disruption Statistics supra note 9, at 11 (reporting 431,414
instances of violence and disruption against abortion providers between 2020–2022).
12. See Steven Soule & Karen Weinstein, Racketeering, Anti-Abortion Protesters, and the First
Amendment, 4 UCLA WOMEN’S L.J. 365, 368–69 (1994) (evaluating tactics for prosecution and suit of
anti-abortion protesters); Dana S. Gershon, Stalking Statutes: A New Vehicle to Curb the New Violence
of the Radical Anti-Abortion Movement, 26 COLUM. HUM. RTS. L. REV. 215, 220 (1994).
13. Jon D. Michaels & David L. Noll, Vigilante Federalism, 108 CORNELL L. REV. 1187, 1207–11
(2023) (discussing how Texas’s S.B.8, which was imitated by legislatures in Idaho and Oklahoma,
allows private citizens to bring civil suits against anyone who “aids or abets” an abortion or “intends” to
do so).
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