Reproductive Healthcare Services and the U.S. Supreme Court: beyond Roe v. Wade and 'Abortion Clinics'
| Autor | Karla Vergara |
| Cargo | Juris Doctor - J.D. Candidate (2017) at Boston College Law School (Boston, United States of America). Bachelor of Arts ? B.A. 2011, Cornell University |
| Páginas | 43-68 |
Licenciado sob uma Licença Creative Commons
Licensed under Creative Commons
43
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 1, p. 43-68, jan./abr. 2017.
Como citar esse artigo/How to cite this article: VERGARA PÉREZ, Karla A., Reproductive Healthcare Services and the U.S. Supreme
Court: Beyond Roe v. Wade and “Abortion Clinics”. Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 1, p. 43-68, jan./abr. 2017.
DOI: 10.5380/rinc.v4i1.47660.
* My heartfelt thanks go to Professors M. Cathleen Kaveny and Natalya Shnitser for their thoughtful comments and guidance
throughout the course of this project; to Caroline Reilly, who has inspired me to challenge the status quo and see women’s
reproductive rights for what they are: One of the most important civil rights issues of our generation; to Professor Richard Albert
for his continued mentorship as I navigate the eld of constitutional law; and to Peter Skengton and David Ferrer because
publication of this article would not have been possible without them.
** Juris Doctor - J.D. Candidate (2017) at Boston College Law School (Boston, United States of America). Bachelor of Arts – B.A.
2011, Cornell University. E-mail: vergarak@bc.edu.
Revista de Investigações Constitucionais
ISSN 2359-5639
DOI: 10.5380/rinc.v4i1.47660
Reproductive Healthcare Services and the U.S. Supreme
Court: Beyond Roe v. Wade and “Abortion Clinics”*
Serviços de saúde reprodutiva e a Suprema Corte dos EUA:
para além de Roe v. Wade e de “Clínicas de Aborto”
KARLA A. VERGARA PÉREZ**
Boston College Law School (United States of America)
vergarak@bc.edu
Recebido/Received: 12.07.2016 / July 12th, 2016
Aprovado/Approved: 25.10.2016 / October 10th, 2016
Resumo
No momento em que os Estados Unidos estão fortemente
divididos sobre os direitos reprodutivos das mulheres, o
foco do debate passou da legalidade ao acesso a serviços
de saúde. O binário (pró-escolha/anti-escolha) atinge mu-
lheres que procuram os serviços de saúde reprodutiva para
ns que não o aborto. Nesse contexto, alguns autoprocla-
mados “conselheiros de calçada” abordam essas mulheres
pelas ruas para convencê-las de que existem alternativas ao
aborto. No entanto, as mulheres que optam por ignorá-los
correm risco de ser repreendidas, perseguidas e humilhadas
publicamente. Muitos estados aprovaram leis para proteger
as mulheres que frequentam clínicas de saúde reprodutiva,
mas uma enorme quantidade dessas leis foi declarada in-
constitucional pela Suprema Corte dos EUA, com base na
Abstract
At a time when the United States is sharply divided on
women’s reproductive rights, the focus has shifted from
legality to that of access to reproductive healthcare
services. The binary (pro-choice/anti-choice) overlooks
women who seek reproductive healthcare services for
reasons other than abortion. Self-proclaimed sidewalk
counselors approach these women to convince them
that there are alternatives to abortion. In this way, the
women who choose to ignore oftentimes risk being
scolded, yelled at, harassed, and humiliated publicly.
Many states have enacted buer zone legislation to
protect women trying to access reproductive healthcare
clinics, but an overwhelming amount of these laws have
been struck down by the U.S. Supreme Court, based on
Untitled-1 43 22/10/2018 17:35:00
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 1, p. 43-68, jan./abr. 2017.
Karla A. Vergara Pérez
44
the First Amendment rules. This article argues that side-
walk counselors and activists’ protesting against abortion
outside of these clinics is futile, defending that buer
zones around reproductive healthcare facilities help
protect women’s privacy and their right to access so they
may obtain the reproductive healthcare they are entitled
to receive.
Keywords: reproductive healthcare clinics; abortion clin-
ics; rst amendment; sidewalk counselors; Roe v. Wade.
Primeira Emenda. Este artigo argumenta que o protesto dos
“conselheiros de calçada” é fútil e defende que devem ser
elaboradas leis que protejam a privacidade das mulheres e
seu direito de acesso ao serviço de saúde reprodutiva, a m
de que possam obter os cuidados médicos que têm direito.
Palavras-chave: clínicas de saúde reprodutiva; clínicas de
aborto; Primeira Emenda; conselheiros de calçada; Roe v.
Wade.
CONTENTS
1. Introduction; 1.1. A Violent History; 1.2. The Buer Zone Tug O’ Wars; 2. Analysis; 2.1. RHCCs: Much
More than “Abortion Clinics”; 2.2. Who is Seeking an Abortion?; 2.3. Who is a “Sidewalk Counselor”?; 2.4.
Buer Zones in Other Contexts; 2.4.1. The (Military) Funeral Context; 2.4.2. The Polling Place Context;
2.4.3. The Buer Zone Around the Supreme Court. 3. Conclusion; 4. References.
1. INTRODUCTION
In the forty-three years since the decision in Roe v. Wade,1 the abortion debate
in the United States has continued to be one of the most ercely discussed areas in
contemporary American politics and society.2 Dr. Jane Hodgson, an abortion provider
in the 1990s, expressed through her scholarship that she had never seen the inten-
sity of the United States’ divisions over reproductive choice despite having travelled
to four dierent continents.3 In 2013, television host Rachel Maddow commemorated
Roe’s 40th anniversary by highlighting the ongoing friction between demonstrators in
favor of and against abortion rights and interviewing the clinical sta caught in the mi-
ddle of the debate.4 During the segment, Ms. Nancy Keenan, then President of NARAL
1 In Roe v. Wade, 410 U.S. 113 (1973), the Court held that women have a constitutionally protected, fundamen-
tal right under the Fourteenth Amendment to a safe abortion. However, please note that Justice Ruth Bader
Ginsburg has challenged this interpretation of the case, arguing that the decision was less about a woman’s
right to choose to have an abortion than it was about a doctor’s autonomy to carry out abortions. HEAGNEY,
Meredith. “Justice Ruth Bader Ginsburg Oers Critique of Roe v. Wade During Law School Visit”, May
15, 2013. Available at:
.
v-wade-during-law-school-visit>. “Roe isn’t really about the woman’s choice, is it? It’s about the doctor’s free-
dom to practice… it wasn’t woman-centered, it was physician-centered.”
2 See Stenberg v. Carhart, 530 U.S. 914, 947 (2000) (O’Connor, J., concurring).
3 HODGSON, Jane E. Violence Versus Reproductive Health Care: In The United States Organised Medicine Averts
Its Gaze. British Medical Journal, London, vol. 310, n. 6979, mar. 1995. pp. 547-548. Available at:
doi.org/10.1136/bmj.310.6979.547>.
4 “Rachel Maddow Celebrates Roe v. Wade On Its 40th Anniversary”, Video, Hungton Post: HuPost
Media, Jan. 23, 2013. Available at:
-anniversary_n_2533025.html>.
Untitled-1 44 22/10/2018 17:35:00
Reproductive Healthcare Services and the U.S. Supreme Court: Beyond Roe v. Wade and “Abortion Clinics”
45
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 1, p. 43-68, jan./abr. 2017.
Pro-Choice America,5 remarked that, contrary to popular belief, the debate around
abortion is “no longer about the legality” of it, like it was before Roe was decided, but
that “it has now become a debate and a ght around access.”6 Anti-abortion and pro-
choice activists have dened the nature of the abortion dispute in binary terms for ye-
ars, excluding, I suggest, one important group from the conversation: Women who seek
low-cost, routine healthcare from reproductive healthcare clinics (“RHCCs” or “RHCFs”)
that simply happen to oer abortion services.
Subpart 1.1 of this Introduction will briey discuss the history of violence against
RHCCs in the United States. Subpart 1.2 will then discuss buer zone laws as reactive le-
gal mechanisms to protect access to RHCCs and their mixed results in the court system
when challenged. The Analysis section of the article (Section 2 and all its subparts) will
challenge the U.S. Supreme Court’s reasons for striking down buer zone laws on a First
Amendment basis by articulating the importance of such laws beyond the previously
expressed concerns involving harassment. Finally, the Conclusion (Section 3) aims to
provoke additional thought and inquiry into why, as a society, we are willing to uphold
buer zones in certain contexts, but our skepticism is heightened when it comes to
women’s reproductive healthcare, particularly when abortion is involved.
1.1. A Violent History
The Arkansas physician who participated in the Rachel Maddow interview —
the only abortion provider in the state at that point — asked for his identity to be con-
cealed for security concerns.7 In extreme cases, anti-abortion activists have engaged
in acts of violence against the RHCCs that oer abortion services and the physicians
and sta that carry out the procedure.8 To put matters into perspective, a number of
5 “NARAL” used to stand for “National Abortion and Reproductive Rights Action League,” but its name was chan-
ged to “NARAL Pro-Choice America” in 2003. NARAL Pro-Choice America Foundation and NARAL Pro-Choice
America, Inc. are 501(c)(3) and 501(c)(4) non-prot organizations, respectively, dedicated to reproductive ad-
vocacy across the United States. See LEE, Jennifer 8. “Abortion Rights Group Plans a New Focus and a New
Name”, N.Y. Times, Jan. 5, 2003. Available at: < http://www.nytimes.com/2003/01/05/us/abortion-rights-grou-
p-plans-a-new-focus-and-a-new-name.html?_r=0>. See also “About Us, NARAL Pro-Choice America”. Avai-
lable at:
ca”. Available at: .
6 Supra note 4 (emphasis supplied). See also FINER, Lawrence B.; FROHWIRTH, Lori F. et al. Reasons U.S. Wo-
men Have Abortions: Quantitative and Qualitative Perspectives. Perspectives on Sexual and Reproductive
Health, [s.l.], vol. 37, n. 3, pp. 110–118, sep. 2005: “Public discussion about abortion in the United States has
generally focused on policy: who should be allowed to have abortions, and under what circumstances.”
7 See supra note 4.
8 See idem. See also FREEDMAN, Lori. Willing and Unable: Doctor’s Constraints in Abortion Care, at p. 17 (Van-
derbilt Univ. Press 2010); HORVATH-COSPER, Diane J. “Being a doctor who performs abortions means you
always fear your life is in danger”, Wash. Post, Oct. 29, 2015. Available at:
com/posteverything/wp/2015/10/29/being-a-doctor-who-performs-abortions-means-you-always-fear-you-
r-life-is-in-danger/>; ROHTER, Larry. “Doctor is Slain During Protest Over Abortions”, N.Y. Times, Mar. 11,
1993.
Untitled-1 45 22/10/2018 17:35:00
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 1, p. 43-68, jan./abr. 2017.
Karla A. Vergara Pérez
46
anti-abortion activists have committed numerous acts of violence since the 1970s, in-
cluding eleven murders,9 17 attempted murders, 185 arsons,10 and 1,495 acts of van-
dalism.11 For instance, in 1993, anti-abortion protester Michael F. Grin was arrested
and charged for murder in Florida after shooting Dr. David Gunn, a 47-year-old abor-
tion-providing physician who had just opened the Pensacola Women’s Medical Services
clinic earlier that year.12 In 1994, John C. Salvi III walked into two RHCCs in Brookline,
Massachusetts, killed two receptionists, and injured ve clinic workers.13 Also in 1994,
Paul Hill — a minister — shot and murdered Dr. John Britton, an abortion provider,
and his bodyguard outside the Ladies Center clinic in Pensacola, Florida.14 Hill was exe-
cuted in 2003 for these murders.15 In 2009, Dr. George Tiller, whose Kansas clinic had
been subjected to years of protest and harassment — including a bombing incident
— was murdered in his own church.16 Recently, on November 27, 2015, as many as
twelve people17 were victims of a shooting directed at a Planned Parenthood facility in
Colorado Springs, Colorado.18 The accused gunman, Robert Lewis Dear, self-identied
9 This gure has been updated to include the murders that occurred during the Colorado Springs Planned
Parenthood shooting in November of 2015. SHOICHET, Catherine E.; STAPLETON, AnneClaire; BOTELHO, Greg.
“Colorado Planned Parenthood shooting: 3 killed”, CNN, Nov. 27, 2015. Available at:
com/2015/11/27/us/colorado-shooting-probe/>.
10 This number has been updated to reect the four arsons that occurred in the summer of 2015 after accu-
satory Planned Parenthood videos were released. MORLIN, Bill. “Four Arsons in 74 Days at Planned Paren-
thood Clinics”, Southern Poverty Law Center, Oct. 2, 2015. Available at:
ch/2015/10/02/four-arsons-74-days-planned-parenthood-clinics.>.
11 FILIPOVIC, Jill. “Abortion Clinic Protesters: “Sidewalk Counselors” or “Sidewalk Terrorists”?”, Cosmopolitan,
Nov. 17, 2014. Available at:
thood-protests/>. See also supra note 9.
12 See ROHTER, supra note 8.
13 See supra note 11; CLARKSON, Frederick. “Remembering John Salvi and the Brookline Clinic Shootin-
gs”, Political Research Associates, Jan. 15, 2014. Available at:
remembering-john-salvi-and-the-brookline-clinic-shootings/#sthash.Q3abL41W.dpbs.>.
14 CLAIBORNE, William. “Two Killed at Clinic in Florida”, Wash. Post: Nation Special Report, Jul. 30, 1994. Avai-
lable at: .
15 GOODNOUGH, Abby. “Florida Executes Killer of an Abortion Provider”, N.Y. Times, Sep. 4, 2003. Available
at: .
16 See supra note 8.
17 See supra note 10; TSENG, Hsing; AEGERTER, Macradee. “Planned Parenthood shooting victims remembe-
red by family, friends”, KDVR, Nov. 29, 2015. Available at:
d-shooting-victims-remembered-by-family-friends/>; “Death of UCCS police ocer in Colorado Springs
Planned Parenthood shooting conrmed”, The Gazette, Dec. 1, 2015. Available at:
ath-of-uccs-police-ocer-in-colorado-springs-planned-parenthood-shooting-conrmed/article/1564442>.
18 See supra note 9.
Untitled-1 46 22/10/2018 17:35:00
Reproductive Healthcare Services and the U.S. Supreme Court: Beyond Roe v. Wade and “Abortion Clinics”
47
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 1, p. 43-68, jan./abr. 2017.
as an anti-abortionist and confessed19 that he was acting as “a warrior for the babies.”20
The President and CEO of Planned Parenthood of the Rocky Mountains, Vicki Cowart,
called for an end to these kinds of violent attacks, stating that “[i]t is time to put an
end to the dangerous rhetoric that has permeated our political conversations . . . [T]his
violence, whether inicted with words or with weapons, cannot become our normal.”21
The former president of the American Bar Association and nationally prominent First
Amendment advocate Talbot D’Alemberte noted in connection to the hostility surroun-
ding RHCCs: “This is not debate. It’s intimidation. If [the anti-abortion activists’] purpose
is to communicate a message, they can be heard” without having to resort to harass-
ment.22 At a minimum, women who seek reproductive services from an RHCC, as well
as the clinical sta, are subjected to harassment. Horvath-Cosper has stated that being
an obstetrician-gynecologist has “made [her] a target for harassment online and in per-
son over the course of [her] career. Unfortunately, [her] experience is not the excep-
tion among [her] colleagues” despite performing a legally medical procedure in all fty
states.23 These acts of violence, though rare, instill fear in women and ultimately deter
them from seeking professional reproductive healthcare from these clinics, even if the
service they seek is not abortion.24 For the women who do seek an abortion, recent
studies and reports have shown that women who do not readily have access to one
attempt to either self-induce25 or to have the procedure done under more dangerous
conditions that raise additional health risks.26
19 It should be noted that the court has recently declared that the accused is unt to stand trial. HEALY, Jack.
“Judge Finds Planned Parenthood Suspect Unt for Trial”, N.Y. Times, May 11, 2016. Available at:
www.nytimes.com/2016/05/12/us/judge-declares-planned-parenthood-suspect-unt-for-trial.html?smpro-
d=nytcore-iphone&smid=nytcore-iphone-share&_r=0.>.
20 HUGHES, Trevor. “Accused Planned Parenthood Gunman Says He’s Guilty”, USA Today, Dec. 9, 2015.
Available at:
could-face-death-penalty-charges--3-deaths/77038542/.>.
21 Idem.
22 SAVAGE, David G. “Justices to Enter Abortion Clinic’s ‘Buer Zone’: Supreme Court: A case of ‘free
speech versus free access’ at a surgical center is high court’s rst chance to weigh aggressive protesters’ First
Amendment rights”, L.A. Times, Apr. 24, 1994. Available at:
49919_1_supreme-court/2>.
23 HORVATH-COSPER, supra note 8.
24 See supra note 8.
25 See, e.g., BEUSMAN, Callie. “100,000 Women in Texas Have Tried to Self-Induce an Abortion, New Re-
port Says”, Broadly, Nov. 17, 2015. Available at:
texas-have-tried-to-self-induce-an-abortion>.
26 During the oral arguments for Roe v. Wade on December 13, 1971, Attorney Sarah R. Weddington, arguing
on behalf of the Plaintis, brought to light the consequences of obstructing access to safe abortions: “In the
absence of abortions, or legal medically safe abortions, women often resort [sic] to the illegal abortions, which
certainly carry risks of death, all the side eects, such as severe infections, permanent sterility, all the complica-
tions that result. And, in fact, if the woman is unable to get [. . .] a legal abortion [. . .] she can do a self-abortion,
which is [. . .] by far the most dangerous.” Oral Argument at 12:45, Roe v. Wade, 410 U.S. 113 (1973) (No. 70-
18), https://www.oyez.org/cases/1971/70-18. See KHAZAN, Olga. “Texas Women Are Inducing Their Own
Untitled-1 47 22/10/2018 17:35:00
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 1, p. 43-68, jan./abr. 2017.
Karla A. Vergara Pérez
48
Physicians who provide abortion services also often end up fearing for their fa-
mily members’ lives as well as their own.27 The recent Colorado shooting casted light
upon an issue advocates for women’s reproductive healthcare know all too well: Appro-
aching these so-called abortion clinics is anything but safe.28 On March 30th, 2016, the
Peoria County Airport in Illinois had to be shut down after the authorities discovered
“suspicious items” in a woman’s carry-on luggage.29 After further investigation, the au-
thorities discovered that the woman was an employee of the National Abortion Fede-
ration (NAF), whose job required her to travel around the country training RHCC sta
members on how to identify bombs so they could protect themselves and patients
from attacks; she uses the dynamite-resembling dog toys found in her carry-on lugga-
ge as training devices.30
Despite the fact that Roe and its progeny are still good law,31 women in the U.S.
have a hard time accessing reproductive healthcare at RHCFs without feeling like their
privacy and safety are threatened by the anti-abortion activists who surround these
clinics. These attacks have driven abortion providers to demand legislation that guaran-
tees safe, unobstructed access to RHCCs,32 such as buer zone laws, which have had an
underwhelming rate of success across the country due to First Amendment concerns.
In 1994, then President Clinton signed the Free Access to Clinic Entrances Act
(“FACE Act”) in an eort to put an end to acts of violence against RHCFs.33 The FACE
Act prohibited anyone from threatening or forcibly interfering with people entering
an RHCF or intentionally damaging the clinic.34 Since then, many states have passed
protective buer zone laws that prohibit anti-abortion activists from harassing women
Abortions”, The Atlantic, Nov. 17, 2015. Available at:
texas-self-abort/416229/.>.
27 See HORVATH-COSPER, supra note 8.
28 See idem.; ROHTER, supra note 8.
29 MADDOW, Rachel. “Donald Trump Exposes Truth of Anti-Abortion Politics”, Video, MSNBC News: The
Rachel Maddow Show, Apr. 1, 2016. Available at: om/watch?v=wkV7H1NEJk4>.LA-
MANSKY, Katrina. “Dog toys, and safety training items for abortion clinics, are what shut down Peoria
airport”, WQAD, Mar. 31, 2016. Available at:
saw-inside-peoria-airport-passengers-bag-that-prompted-evacuation/>.
30 See supra note 29.
31 The holding in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), later solidi-
ed the central holding of Roe v. Wade, namely, that a woman has a constitutionally protected right to seek an
abortion until fetal viability.
32 ALBERT, Richard. Protest, Proportionality, and the Politics of Privacy: Mediating the Tension Between the Ri-
ght of Access to Abortion Clinics and Free Religious Expression in Canada and the United States. Loyola of Los
Angeles International and Comparative Law Review, Los Angeles, vol. 27, n. 1, p. 1-62, jan./apr. 2005. p. 9.
33 See FILIPOVIC, supra note 11.
34 Codied at 18 U.S.C. § 248.
Untitled-1 48 22/10/2018 17:35:00
Reproductive Healthcare Services and the U.S. Supreme Court: Beyond Roe v. Wade and “Abortion Clinics”
49
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 1, p. 43-68, jan./abr. 2017.
who approach RHCCs.35 Buer zones,36 as discussed in this article, are areas surroun-
ding RHCC property lines in order to keep both anti-abortion activists and peaceful
counselors away from the clinics’ premises, and therefore minimize the possibility of
harassment and violence towards the women entering the clinics.37 Courts have recog-
nized that there are two types of buer zones: Fixed and oating. Fixed buer zones
surround a particular, immovable area (such as a parking lot, a driveway, an entrance,
a facility, etc.); oating buer zones, on the other hand, apply to persons, vehicles, or
mobile entities entering or exiting the protected facilities.38 Buer zones are employed
successfully in settings unrelated to RHCFs. The question is why.
1.2. The Buer Zone Tug O’ Wars
The jurisprudence around buer zone laws has not always held that a person’s
right to free speech outweighs another’s right to privacy.39 Frisby v. Schultz was one of
the rst cases to deal with this dicult tension. In that case, two abortion opponents
challenged a city ordinance40 which banned picketing “before or about” any particu-
lar residence because they wanted to protest abortion on a public street outside an
abortion-providing physician’s home.41 They had engaged in this activity “on at least six
occasions” between April and May of 1985 with a group of eleven to forty people.42 Al-
though the picketing was “generally orderly and peaceful,” it had generated “substantial
35 See, e.g., Colo. Rev. Stat. § 18-9-122(3) (1999); M.G.L.A. 266 § 120E½ (2001). See FILIPOVIC, supra note 11.
36 Buer Zone, Merriam-Webster’s Learner’s Dictionary, http://www.merriam-webster.com/dictionary/buf-
fer%20zone (last visited Apr. 18, 2016). The term “buer zone” as “an area that keeps two things separated;” “a
neutral area separating conicting forces;” and “an area designed to separate.”
37 EDWARDS, Jamie. McGuire v. Reilly: The First Amendment and Abortion Clinic Buer Zones in the Wake of Hill
v. Colorado. UC Davis Law Review, Davis, vol. 36, n. 3, p. 787-812, feb. 2003. p. 789. See also BASSETT, Laura.
“Abortion Clinic Buer Zones Crumble Around the Country”, Hungton Post, Jul. 9, 2014. Available at:
38 Rodney A. Smolla, 1 Smolla & Nimmer on Freedom of Speech § 13:38, Chapter 13: Free Speech and Civil
Rights Enforcement, at p. 2.
39 See, e.g., the following seminal decisions, which discuss access to abortion: McCullen v. Coakley, 134 S. Ct.
2518 (2014), Hill v. Colorado, 530 U.S. 703 (2000), Schenck v. Pro-Choice Network of Western New York, 519 U.S.
357 (1997), Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994), Planned Parenthood of Southeastern
Pennsylvania v. Casey, 505 U.S. 833 (1992), Frisby v. Schultz, 487 U.S. 474 (1988), and Roe v. Wade, 410 U.S. 113
(1973). For practical purposes, I will only discuss at length the cases that are most relevant to my analysis for
this paper.
40 The relevant text of the ordinance read as follows: “It is unlawful for any person to engage in picketing before
or about the residence or dwelling of any individual in the Town of Brookeld.” The ordinance also states the
primary purpose of this ban: “the protection and preservation of the home” through assurance “that members
of the community enjoy in their homes and dwellings a feeling of well-being, tranquility, and privacy.” Frisby,
487 U.S. at p. 477.
41 Idem. at p. 476.
42 Idem.
Untitled-1 49 22/10/2018 17:35:01
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 1, p. 43-68, jan./abr. 2017.
Karla A. Vergara Pérez
50
controversy and numerous complaints.”43 The Court reasoned that the ordinance left
“ample alternative channels of communication” (i.e., it allowed protestors to enter and
march through neighborhoods, alone or in groups, distribute literature from door to
door, and contact the residents by telephone).44 Because there were ample alternative
channels of communication, the Court concluded that the city ordinance was narrowly
tailored.45 The Court, however, also recognized that “protection of the unwilling listener”
is one of the State’s paramount concerns when it comes to residential privacy.46 Since
the ordinance was narrowly tailored to ban protesting targeted at a particular residen-
ce in order to protect the privacy of the home, which is considered a “substantial and
justiable” state interest, the Court concluded that the ordinance was valid.47
In the case of Hill v. Colorado,48 the U.S. Supreme Court upheld in a 6-3 opinion
a Colorado buer zone statute that makes it unlawful for any person within 100 feet
of any healthcare facility entrance to “knowingly approach” within eight feet of ano-
ther person without their consent “for the purpose of passing a leaet or handbill to,
displaying a sign to, or engaging in oral protest, education, or counseling with such
other person…” if the person is unwilling to accept and listen to the message.49 The
Supreme Court upheld the statute, nding that “[t]he State of Colorado ha[d] respon-
ded to its substantial and legitimate interest in protecting these persons from unwan-
ted encounters, confrontations, and even assaults by enacting an exceedingly modest
restriction on the speakers’ ability to approach.”50 Underlying the Hill decision, howe-
ver, was an incredibly important leap forward: The Court’s explicit acknowledgment of
the “signicant dierence between state restrictions on a speaker’s right to address a
willing audience and those that protect listeners from unwanted communication” when
addressing the government’s signicant interest prong of the strict scrutiny analysis.51
Furthermore, the Court explicitly recognized that “[p]ersons who are attempting to en-
ter health care facilities – for any purpose – are often in particularly vulnerable physical
and emotional conditions.”52 Hospitals, it reasoned, are facilities “where human ailments
43 Idem.
44 Idem. at p. 484.
45 See idem. at pp. 482, 487-88.
46 Idem. at p. 484 (citing to Carey v. Brown, 447 U.S. 455, 471 (1980): “The State’s interest in protecting the
well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society.”
47 See idem. at p. 488. See also COWAN, Kristen G. The Tailoring of Statutory Bubble Zones: Balancing Free
Speech and Patients’ Rights. Journal of Criminal Law & Criminology, Boston, vol. 91, n. 2, pp. 385-428, dic./
mar. 2000/2001. p. 385.
48 Hill v. Colorado, 530 U.S. 703 (2000).
49 Idem. at pp. 707-08.
50 Idem. at p. 729.
51 Idem. at pp. 715-16 (emphasis supplied).
52 Idem. at p. 729 (emphasis supplied).
Untitled-1 50 22/10/2018 17:35:01
Reproductive Healthcare Services and the U.S. Supreme Court: Beyond Roe v. Wade and “Abortion Clinics”
51
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 1, p. 43-68, jan./abr. 2017.
are treated, where patients and relatives alike often are under emotional strain and
worry, where pleasing and comforting patients are principal facets of the day’s activity,
and where the patient and [her] family . . . need a restful, uncluttered, relaxing, and helpful
atmosphere.”53
As a result of the recurring violence RHCCs were being subjected to around the
state, the Massachusetts legislature rst enacted the Massachusetts Reproductive He-
alth Care Facilities Act (hereafter “the Act”) in 2000, which is coded at Chapter 266, Sec-
tion 120E½, of the Massachusetts General Laws.54 Modeled after Colorado’s buer zone
law,55 the Act’s subsection (b) prescribed two buer zones: One xed and one oating.
The statute made it illegal for persons “in the public way or sidewalk area” within an
18-foot radius of an RHCF entrance to “knowingly approach another person . . . within
six feet . . . unless such other person . . . consents” for the purpose of passing a leaet,
displaying a sign, engage in oral protest, education, or counseling.56 The buer zone
statute allowed for anybody to step into the 18-foot xed buer zone area, but once
within it, every individual was subject to six-foot oating buer zone, which could not
be penetrated unless the other person consented.57
By 2007, it had become evident to law ocials that the oating buer zone por-
tion of the statute was being routinely violated by protesters who continued to appro-
ach patients and clinical sta without due consent; they consequently rendered the
statute ineective and unenforceable.58 The Massachusetts legislature introduced the
revised statute that same year, which replaced the oating/xed buer zone rule with a
xed 35-foot buer zone.59 The revised provision made it illegal to “knowingly enter or
remain on a public way or sidewalk adjacent to a reproductive health care facility within
a [xed] radius of 35 feet of any portion of an entrance, exit or driveway . . .”60 of “any
place, other than a hospital, where abortions are performed”61 during the facility’s bu-
siness hours and only if the radius is “clearly marked and posted.”62 The revised statute
faced anti-abortionist backlash almost immediately. In January 2008, about two mon-
ths after the revised statute had gone into eect, the Plaintis led the initial action
challenging the constitutionality of the Act.63
53 Idem. at pp. 728-29 (quoting NLRB v. Baptist Hospital, Inc., 442 U.S. 773, 783-84 (1979)) (emphases supplied).
54 McCullen, 134 S. Ct. at p. 2525.
55 Idem.
56 M.G.L.A. 266 § 120E½(b); 134 S. Ct. at p. 2525.
57 134 S. Ct. at p. 2525.
58 Idem. at pp. 2525-26.
59 Idem. at p. 2526.
60 M.G.L.A. 266 § 120E½(b), invalidated by McCullen v. Coakley, 134 S. Ct. 2518 (2014) (alteration supplied).
61 M.G.L.A. 266 § 120E½(a); 134 S. Ct. at p. 2526.
62 M.G.L.A. 266 § 120E½(c); 134 S. Ct. at p. 2526.
63 Brief for Plainti-Appellants, McCullen v. Coakley, 708 F.3d 1 (2013) (No. 12-1334), 2012 WL 1899832, at *2.
Untitled-1 51 22/10/2018 17:35:01
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 1, p. 43-68, jan./abr. 2017.
Karla A. Vergara Pérez
52
The First Circuit Court held that the Act was not unconstitutionally vague or an
unlawful constriction of free speech based on three main arguments.64 First, that the
Act was content-neutral because it was “enacted in response to legitimate safety and
law enforcement concerns” and “without reference to the content of any speech,” thus
serving “a legitimate governmental interest unrelated to expressive content.”65 Second,
the Court held that the Act successfully remedied “the ineectiveness of the preexisting
law” by being “narrowly tailored to serve important governmental interests in enhan-
cing public safety around RHCF entrances” and “without burdening substantially more
speech than necessary.”66 And third, the Court held that the Act leaves “open ample
alternative channels of communication, because it ‘places no burden at all on the plain-
tis’ activities outside the 35-foot buer zone.’”67After the lower courts upheld the cons-
titutionality of the Act based on the time, place, and manner doctrine, the Plaintis led
a petition for writ of certiorari with the U.S. Supreme Court on March 25, 2013.68
Time, place, and manner restrictions provide that the right to free speech gran-
ted by the First Amendment is not absolute.69 A State’s time, place, and manner re-
gulations are constitutional if they (1) do not regulate speech based on its content or
subject matter, (2) are narrowly tailored to serve a signicant governmental interest,
and (3) leave open ample alternative channels for communication of the information.70
The simple yet loaded question before the Supreme Court was whether the statute
violated Petitioners’ free speech rights under the First Amendment.71 During oral argu-
ments, the State of Massachusetts articulated an array of reasons as to why the statute
should be allowed to stand under the time, place, and manner doctrine.72 Even though
the State never explicitly mentioned harassment, they alluded to the violent history
clinics have been subjected to.73 To rebut, Petitioners argued that they were simply si-
dewalk counselors seeking to engage the women and discuss alternatives outside an
abortion with them.74 The two competing characterizations of the nature of Petitio-
ners’ intentions and actions captured the attention of Justice Roberts and Justice Scalia,
64 See Brief for the Defendants-Appellees, McCullen v. Coakley, 708 F.3d 1 (2013) (No. 12-1334), 2012 WL
2872265, at *2.
65 Idem. at *3.
66 Idem.
67 Idem. (citing to McCullen v. Coakley, 571 F.3d 167, 176-78 (1st Cir. 2009)).
68 See Brief for Petitioner, McCullen v. Coakley, 134 S. Ct. 2518 (2014) (No. 12-1168), 2013 WL 1247969.
69 See COWAN, supra note 47, at pp. 385-86.
70 Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984); Regan v. Time, Inc., 468 U.S. 641, 648
(1984); Ward v. Rock Against Racism, 491 U.S. 781, 782-83 (1989).
71 134 S. Ct. at p. 2525.
72 Oral Argument at 4:08, McCullen v. Coakley, 134 S. Ct. 2518 (2014), https://www.oyez.org/cases/2013/12-1168.
73 Idem. at 43:29.
74 See idem. at 37:55.
Untitled-1 52 22/10/2018 17:35:01
Reproductive Healthcare Services and the U.S. Supreme Court: Beyond Roe v. Wade and “Abortion Clinics”
53
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 1, p. 43-68, jan./abr. 2017.
eventually persuading the bench to arrive at the same conclusion: “Petitioners are not
protesters.”75
When the unanimous McCullen v. Coakley decision was announced, supporters
of the buer zone statute quickly pointed out the “irony” and “hypocrisy” embedded
in the Court’s ruling.76 For instance, Marty Walz, then CEO of the Planned Parenthood
League of Massachusetts, stated: “By striking down the buer zone law today, the Su-
preme Court has taken away an essential measure to protect public safety and health
care access in our state.” 77 Another piece stated, “It’s virtually impossible to square the
law enforcement denition of illegal protest with the snuggly warm vision of political
protest put forth by a unanimous Supreme Court only two months ago in McCullen v.
Coakley.”78 The statement made by the McCullen decision, however, went beyond sim-
ply making it more dicult for women to access reproductive healthcare. I submit that
the Court’s decision implicitly armed that, as a society, we are willing to place a higher
value on free speech than on women’s right to privacy when it comes to their reproduc-
tive healthcare. The question, once again, is why.
2. ANALYSIS
2.1. RHCCs: Much More than “Abortion Clinics”
After Roe made access to a safe abortion a constitutional right, the medical pro-
fession had to determine how abortion care would be provided.79 Lori Freedman — a
scholar who explores the intersection between abortion politics and the medical pro-
fession — argues that, “given the larger threats to medical autonomy after abortion
became legal, abortion services seem to garner support from mainstream medical as-
sociations only at moments when medical autonomy was threatened.”80 Abortion was
75 134 S. Ct. at 2536 (emphasis supplied). See also Brief for Plainti-Appellants, supra note 63, at *3-4: “Plaintis
are seven individual Massachusetts residents who engage in peaceful speech outside abortion clinics in the
State. . . Accordingly, Plaintis seek to oer women love, support, and information about alternatives to abor-
tion, as well as assistance in carrying their babies to term.”
76 See, e.g., MILLIGAN, Susan. “High Court Hypocrisy’, U.S. News: Opinion, Jun. 27, 2014. Available at:
www.usnews.com/opinion/blogs/susan-milligan/2014/06/27/supreme-court-bans-abortion-clinic-buer-
zones-but-keeps-its-own>. LOGIURATO, Brett. “Here’s the Ultimate Irony of the Supreme Court Banning
‘Buer Zones’ at Abortion Clinics”, Business Insider, Jun. 27, 2014. Available at:
sider.com/supreme-court-abortion-buer-zones-decision-2014-6>. KILLIAN, Linda. “Supreme Hypocrisy
on Buer Zones?”, Wall St. J.: Washington Wire, Jun. 27, 2014. Available at:
re/2014/06/27/supreme-hypocrisy-on-buer-zones/>.
77 Logiurato, supra note 76.
78 LITHWICK, Dahlia; WEST, Sonja. “Advice for Ferguson from the Supreme Court”. Available at:
digitalcommons.law.uga.edu/fac_pm/190>.
79 Freedman, supra note 8 at p. 22.
80 Idem. at p. 21.
Untitled-1 53 22/10/2018 17:35:01
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 1, p. 43-68, jan./abr. 2017.
Karla A. Vergara Pérez
54
never integrated with mainstream medical practice or education and, even today, only
a minority of doctors81 and hospitals oer the service.82
Freedman further argues that the “net eect of the medical profession’s non-
committal orientation toward abortion care” has thwarted “eorts by abortion rights
advocates within medicine to legitimize abortion as a normal reproductive health
need.”83 Although Freedman’s isolation-makes-targeted-violence-easier argument is
strong, I submit that it is unclear that this isolation is the result of physicians’ non-com-
mittal attitudes towards reproductive rights per se. For instance, Sonia M. Suter critici-
zes the Supreme Court’s upholding of a partial-birth abortion ban in Gonzales v. Carhart
because the slim evidence on which the Court relied upon to uphold that ban was “con-
tradicted by a notable group of medical experts.”84 She further remarks that this was in
“direct contrast to an expansive vision of procreative liberty.”85 Finally, Freedman adopts
Dr. Hodgson’s argument, which advances that by being deprived of the “protection of
anonymity within hospital walls” and forced into isolation as freestanding clinics, RHCCs
are “more vulnerable to violence and harassment.”86
Today, women across the U.S. choose to go to RHCCs for a wide range of reasons.
First, Planned Parenthood aliates participate in Title X,87 the only federal funding pro-
gram that allows family-planning clinics to supplement or reimburse Medicaid patients
for reproductive healthcare services rendered, such as birth control, gynecological care,
and other reproductive healthcare services that would otherwise be inaccessible to
81 See idem. (“Since abortion was legalized in 1973, the lack of mainstream institutional and organizational
support for it has ultimately resulted in the marginalization of abortion care into freestanding abortion clinics
served by politically motivated physicians.”) (emphasis supplied). A close friend and medical student of obste-
trics and gynecology at the University of Puerto Rico School of Medicine — whose curricula is the same as that
oered in medical schools on the mainland — conrmed that instruction on abortion procedure varies from
school to school and that medical students who do not wish to participate in the procedure may opt out of it,
even if they are doing a family-planning rotation. She made it clear that this opt-out practice is unique to the
abortion situation.
82 See idem. at p. 22 (“Regardless of medicine’s interest in maintaining abortion turf, recent decades witnessed
a steady decrease in the number of physicians providing abortion in their private practices and hospitals…”).
83 Idem. at p. 21.
84 SUTER, Sonia M. The “Repugnance” Lens of Gonzales v. Carhart and Other Theories of Reproductive Rights:
Evaluating Advanced Reproductive Technologies. The George Washington Law Review, Washington, vol. 76,
n. 6, pp. 1514-1598, nov./dic. 2008. p. 1587.
85 Idem.
86 See Freedman, supra note 8 at p. 20 (citing to HODGSON, supra note 3 at p. 548).
87 Title X is part of the United States Public Health Service Act, coded at 42 U.S.C. Ch. 6A, §§ 300 – 300a-8,
which is devoted solely to family planning services. Note that the federal funds are prohibited from being
used for abortion unless the woman has been a victim of sexual assault or incest. See LOBIANCO, Tom. “Plan-
ned Parenthood president grilled at House hearing”, CNN, Sep. 30, 2015. Available at:
com/2015/09/29/politics/planned-parenthood-hearing-cecile-richards/>; MADDOW, Rachel. “Planned Pa-
renthood president stands up to House GOP grilling”, at 5:32, Sep. 30, 2015. Available at:
youtube.com/watch?v=bB-y2DKU6Vs>.
Untitled-1 54 22/10/2018 17:35:01
Reproductive Healthcare Services and the U.S. Supreme Court: Beyond Roe v. Wade and “Abortion Clinics”
55
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 1, p. 43-68, jan./abr. 2017.
women who cannot pay full price.88 According to the Guttmacher Institute,89 Planned
Parenthood clinics were 13% of the Title X clinics and served 37% of Title X clients.90
Low-income women who cannot, for whatever reason,91 access hospitals or RHCCs,
such as Planned Parenthood, oftentimes end up with “few alternatives for reproductive
and preventive health care.”92 In 2014, a single mother from Washingtonville, Pennsyl-
vania, who lived 74 miles away from the nearest RHCC in Harrisburg, was sentenced
to serve a twelve-to-eighteen-months’ sentence and pay a ne of $1,000 after she in-
duced an abortion upon her 16-year-old daughter, who refused to have the child.93 In
Texas, 100,000 women have been found to be self-inducing abortions given the lack of
RHCFs.94 Self-induced abortions are often done in dangerous conditions and involve
additional health risks.95
Second, many women feel these clinics are the only places where they can re-
quest reproductive services in an environment free of judgment, whether it is a simple
gynecological checkup, birth control, a preventive screening, or an abortion.96 Accor-
ding to Planned Parenthood’s 2014-15 annual report, the Planned Parenthood Federa-
88 About Our Fees, Planned Parenthood, https://www.plannedparenthood.org/planned-parenthood-central-
-western-new-york/patient-resources/paying-your-health-care/about-our-fees. See also National Abortion
Federation, https://www.prochoice.org/pubs_research/publications/downloads/about_abortion/abortion_ti-
tle_x.pdf (“The majority of Title X clients are low-income, uninsured, and do not qualify for Medicaid.”).
89 The Guttmacher Institute is a “leading research and policy organization” dedicated to researching and ad-
vancing reproductive health and rights in the United States and globally “through [an] interrelated program
of research, public education, and policy analysis.” Available at: . Last ac-
cessed on Oct. 23, 2016.
90 NAPILI, Angela. Congressional Research Service, “Title X (Public Health Service Act) Family Planning Pro-
gram,” Sep. 26, 2016, at p. 18.
91 For example, the Texas Policy Evaluation Project signals the following as four reasons why women self-in-
duce abortions: (1) Not having enough money to travel to a clinic or pay for the procedure; (2) The local clinic
was forced to close; (3) A close friend or family member recommended self-inducement; and (4) The woman
wanted to avoid the shame of being associated with going to an RHCC. See KHAZAN, supra note 26; BEUS-
MAN, supra note 25; WELCH, Ashley. “Study: 100,000 Texas women have tried to self-induce abortion”,
CBS News, Nov. 19, 2015. Available at: omen-have-tried-to-
self-induce-abortion/.>.
92 WINTER, Meaghan. “The Stealth Attack on Abortion Access”, N.Y. Times: The Opinion Pages, Nov. 12,
2015. Available at:
html?_r=3>.
93 DEKOK, David. “Pennsylvania mother who gave daughter abortion pill gets prison”, Reuters, Sep.
6, 2014. Available at:
N0H10IR20140906>.
94 KHAZAN, supra note 26; BEUSMAN, supra note 25; WELCH, supra note 91.
95 See KHAZAN, supra note 26; BEUSMAN, supra note 25; WELCH, supra note 91.
96 MILLER, Elizabeth. “An Open Letter to a Protester Outside the Boston Planned Parenthood this Satur-
day”, Hungton Post: Hupost Women Blog, Sep. 7, 2014: “I started going to Planned Parenthood in 1997, and
since then have gotten all my reproductive health care there, because once inside, I feel respected and listened
to, and able to access the medical care I need without judgement. Outside, however, it’s another story.” Availa-
ble at:
-planned-parenthood_b_5553701.html>.
Untitled-1 55 22/10/2018 17:35:01
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 1, p. 43-68, jan./abr. 2017.
Karla A. Vergara Pérez
56
tion of America (PPFA) provided support to 59 independently incorporated aliates,
which operate the 661 health centers that served 2.5 million patients that year.97 These
aliated clinics performed 271,539 pap smears, 363,803 breast examinations, provided
2,945,059 birth control-related services, conducted 651,695 HIV tests, and diagnosed
171,882 sexually transmitted infections (STIs).98 The medical services data section in
that report reveals that, out of the total services provided by Planned Parenthood af-
liates, 45% consisted of STI/STD testing and treatment, 31% was provision of contra-
ception,99 13% was allocated to other women’s health services,100 7% went to cancer
screening and prevention, 3% were abortions, and the remaining 1% consisted of other
services.101 In total, Planned Parenthood aliates provided 9,455,582 services for the
2014-15 year.102
Despite the variety of services oered at RHCFs besides abortion, RHCFs con-
tinue to be referred to as “abortion clinics,” a phrase U.S. Supreme Court Justice Ruth
Bader Ginsburg has openly objected to because it attaches prejudice to a facility that,
at the end of the day, provides medically necessary services.103
2.2. Who is Seeking an Abortion?
The incongruence between abortion opponents’ intended and actual audience
is a constant source of frustration for women who seek reproductive healthcare at an
RHCF. A Boston woman narrated her personal experience with abortion opponents:
“You could be going there, like in my case, for my yearly exam and I’m getting called
‘baby-killer.’ . . . you can’t believe someone just yelled at you on the way to the doctor.”104
Sarah Cyr-Mutty, a community relations coordinator for a Boston clinic, says that the
crowd of people outside the facility makes the atmosphere tenser, more chaotic, and
more uncomfortable for the patients. “No one wants to drive up to their doctor’s oce
97 Planned Parenthood 2014-15 Annual Report at p. 5 [hereinafter 2014-15 Annual Report]. Available at: < ht-
tps://www.plannedparenthood.org/les/2114/5089/0863/2014-2015_PPFA_Annual_Report_.pdf >.
98 Idem. at p. 28.
99 See idem. at p. 29 for further contraception data breakdown.
100 Michelle Ye He Lee denes “other women’s health services” as pregnancy tests and “prenatal services.” LEE,
Michelle Ye Hee. “Fact Checker For Planned Parenthood abortion stats: ‘3 percent’ and ’94 percent’ are
both misleading”, The Washington Post, Aug. 12, 2015. Available at:
fact-checker/wp/2015/08/12/for-planned-parenthood-abortion-stats-3-percent-and-94-percent-are-both-
misleading/.>.
101 2014-15 Annual Report, supra note 97 at p. 29.
102 Idem. at p. 30.
103 “The Court’s hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to
obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties,
but by the pejorative label ‘abortion doctor.’” Gonzales v. Carhart, 550 U.S. 124, 186-87 (2007).
104 See FILIPOVIC, supra note 11 (Pia’s testimony in video).
Untitled-1 56 22/10/2018 17:35:01
Reproductive Healthcare Services and the U.S. Supreme Court: Beyond Roe v. Wade and “Abortion Clinics”
57
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 1, p. 43-68, jan./abr. 2017.
and see over 100 people standing outside.”105 Another patient who was approaching
the clinic entrance refused to speak to a woman handing out an anti-abortion pam-
phlet: “Honestly, I’m having a miscarriage right now, so I really don’t feel like talking to
yo u.” 106 A demonstrator who observed the exchange dismissed the patient’s remarks by
claiming, “That’s usually what they say . . . The new abortion mentality is no more of the
‘choice’ word. The thing is to claim that abortion is just a miscarriage.”107
Women who seek reproductive healthcare from RHCCs do so for a myriad of
reasons. The reasons for seeking an abortion specically are just as diverse.108 In light
of the recent Whole Woman’s Health v. Hellerstedt case,109 the Center for Reproductive
Rights110 launched a campaign called “Draw the Line,”111 which gathered women’s di-
verse abortion stories and showcased them on the project’s website. The collection of
stories reveals that, while some women seek an abortion to end an unplanned preg-
nancy, others do so due to medical conditions or reasons beyond their control, such as
epilepsy or an ectopic pregnancy.112
It is impossible for an anti-abortion demonstrator to ascertain that a patient en-
tering an RHCF is doing so to receive an abortion. In order to ascertain that a woman is
in fact seeking an abortion, an anti-abortion demonstrator would be forced to ask the
patient directly. While the patient may have the option to decline to respond, often-
times ignoring the demonstrators means enduring uncalled-for insults or yelling. Of
course, it is just as impossible for patients to ascertain which demonstrators will desist
immediately upon being ignored and which ones will continue prying. A woman who
does not want to risk being yelled at, therefore, may feel like she has no choice but
to explain herself. Is our position as a society that a political group’s First Amendment
rights are more important than a population’s right to privacy and to obtain the repro-
ductive healthcare they need and are entitled to?
105 PEARL, Diana. “Free Speech Outside the Abortion Clinic”, The Atlantic, Mar. 19, 2015. Available at:
www.theatlantic.com/health/archive/2015/03/free-speech-outside-the-abortion-clinic/388162/>.
106 FILIPOVIC, supra note 11.
107 Idem.
108 See CENTER FOR REPRODUCTIVE RIGHTS. “Actresses Share Real Abortion Stories: The Draw the Line
Monologues.” Available at: .
109 Whole Woman’s Health v. Hellerstedt, 790 F.3d 563 (2015), granting certiorari. In Whole Woman’s Health v.
Hellerstedt, 136 S. Ct. 2292 (2016), the U.S. Supreme Court ultimately struck down the challenged Texas sta-
tute, holding that the same imposed an undue burden on women’s constitutionally protected right to access
abortion.
110 The Center for Reproductive Rights is “the only global legal advocacy organization dedicated to reproduc-
tive rights.” CENTER FOR REPRODUCTIVE RIGHTS. “About Us”. Available at:
org/about-us>. Last accessed Oct. 23, 2016.
111 Draw the Line,
112 See CENTER FOR REPRODUCTIVE RIGHTS Video, supra note 108.
Untitled-1 57 22/10/2018 17:35:01
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 1, p. 43-68, jan./abr. 2017.
Karla A. Vergara Pérez
58
2.3. Who is a “Sidewalk Counselor”?
The McCullen Court stated that “sidewalk counseling” involved “oering infor-
mation about alternatives to abortion and help pursuing those options.”113 However, it
failed to explain what the requirements are to be accurately denominated a “sidewalk
counselor.” Throughout the many phases of the litigation, Petitioners in the McCullen
case described themselves as “sidewalk counselors.”114 The Court adopted this charac-
terization and noted that these individuals “approach and talk to women outside such
facilities, attempting to dissuade them from having abortions.”115 Petitioners’ argument
worked. The State of Massachusetts conveyed the violent history of harassment against
RHCFs, but did not press the Court on the “sidewalk counselor” point.116 Despite this
being a crucial distinction in the case, the Court failed to dene who counts as a sidewa-
lk counselor and who crosses the line to be fairly characterized as a more dangerous
protester. In criticizing the Court’s ruling in the McCullen case, Lithwick and West highli-
ght the Court’s ambiguity in this regard, stating:
In the abortion clinic context, counselors are the people who have the goal of providing
a message to women entering the clinics that abortion is bad. These people, the court
asserts ‘are not protesters.’ We’ll know them when we see them, because they might
pass out literature instead of carrying signs. They might also say, ‘Good morning,’ before
telling you that abortion is bad. They have a ‘caring demeanor,’ a ‘calm tone of voice,’
and ‘maintain direct eye contact.’ They tend to be gray-haired grandmothers. ‘Counse-
lors’ also have been spotted taking a moment to ‘pray the rosary.’ (Protesters, the court,
cautions, do things like carry signs, chant together, or sometimes engage in ‘more ag-
gressive’ tactics like face-to-face confrontation.)117
Lithwick and West have a point: These so-called counselors are self-proclai-
med.118 Anti-abortion activists, or self-proclaimed sidewalk counselors, often approach
the women entering and exiting RHCCs under the assumption that they are seeking
an abortion at the facility in the hopes that they can engage the women and oer
113 134 S. Ct. at p. 2527.
114 See supra note 61 at *Add. 100a-101a (“Plainti Eleanor McCullen engages in sidewalk counseling . . . She
frequently works with another sidewalk counselor . . .”).
115 Idem. at p. 2525.
116 See, generally, Oral Argument, supra note 72.
117 See LITHWICK and WEST, supra note 78.
118 See e.g., 134 S. Ct. at p. 2549, where the Court accepted Petitioners’ self-description as “sidewalk counselors”
without further inquiry into such designation: “A sidewalk counselor, such as petitioners, enters the buer zone,
approaches the woman and says, ‘If you have doubts about an abortion, let me try to answer any questions you
may have. The clinic will not give you good information.’” See also FILIPOVIC, supra note 11 (“Ruth and Evelyn
call themselves ‘sidewalk counselors,’ not protesters.”) (emphasis supplied).
Untitled-1 58 22/10/2018 17:35:01
Reproductive Healthcare Services and the U.S. Supreme Court: Beyond Roe v. Wade and “Abortion Clinics”
59
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 1, p. 43-68, jan./abr. 2017.
information about alternatives to abortion. 119 For instance, Petitioner Eleanor McCul-
len — the lead plainti in the McCullen case — typically initiates a conversation like
this: “Good morning, may I give you my literature? Is there anything I can do for you?
I’m available if you have any questions.”120 There are three evident problems with this
approach. First, how can Ms. McCullen realistically ascertain that she is approaching
someone who is indeed seeking to have an abortion? Second, assuming the woman is
in fact seeking an abortion, Ms. McCullen’s disposition to answer any questions further
assumes that the woman she has approached is not — or chooses not to be — cons-
cious of what she is doing and aware of her options. The Hill Court explicitly acknowle-
dged that people trying to access the clinics are in “particularly vulnerable physical and
emotional conditions” that warrant the State’s protection from “unwanted encounters,
confrontations, and even assaults.”121 More often than not, people in particularly vulne-
rable physical and emotional conditions — such as women who might be seeking an
abortion — will have weighed their options mindfully before arriving at a conclusion
as to what is the best course of action given their specic circumstances. Third, if the
woman is in fact seeking an abortion, how can Ms. McCullen realistically help? Will she
cover the medical expenses for any medical complications the woman may experience
as a result of the pregnancy? Will Ms. McCullen provide nancial support to the woman
who carries the pregnancy to term and her child? Absent concrete criteria for someone
to be designated a “sidewalk counselor,” is it the Court’s position that a “Hello, can I give
you my literature?” or the outward characteristics and demeanor of a person are enou-
gh for them to claim “sidewalk counselor” status? One must wonder why Ms. McCullen,
who has been described as “a sweet, cheerful grandmother from Massachusetts,”122 was
specically chosen as the lead plainti for the litigation.
From the perspective of women who seek reproductive healthcare at an RHCF,
anti-abortion activism can range from being a simple nuisance to borderline, if not
actual, harassment. In connection to this, Professor Chemerinsky noted that, “…the
Court gave insucient weight to the rights of those who are using or working at clinics
and want to be free from verbal and physical assaults.”123 He further characterized the
Court’s opinion as an “open invitation to arbitrary line drawing.”124
119 134 S. Ct. at p. 2527.
120 Idem.
121 Hill, 530 U.S. at p. 729.
122 BOWMAN, Matt. “A Quiet Grandmother Wins One for Free Speech at the Supreme Court”, Wash. Times,
Jul. 1, 2014. Available at:
free-speech-supreme-cou/.>.
123 CHEMERINSKY, Erwin. Appearances can be Deceiving. Green Bag Online, Washington, vol. 17, n. 4, p. 389-
404, jun./aug. 2014, at p. 397.
124 Idem.
Untitled-1 59 22/10/2018 17:35:01
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 1, p. 43-68, jan./abr. 2017.
Karla A. Vergara Pérez
60
2.4. Buer Zones in Other Contexts
The use of buer zones has not been limited to reproductive health clinics.125
Polling places, military funerals, government buildings, and federal courthouses, inclu-
ding the U.S. Supreme Court, are some of the facilities or contexts that reap the benets
of having a protective buer zone around their premises. The Supreme Court’s buer
zone law, for example, makes it “unlawful for protesters to demonstrate on Supreme
Court building grounds.”126
2.4.1. The (Military) Funeral Context
In Snyder v. Phelps,127 Marine Lance Corporal Matthew Snyder had been killed
in the line of duty in Iraq.128 The details for the fallen soldier’s funeral services, which
would be held in Maryland, were announced in the local newspapers.129 Members of
the Westboro Baptist Church of Topeka, Kansas, who were of the view that God punishes
the United States for its tolerance of homosexuality in the military by killing American
soldiers, decided to travel to Maryland and picket Snyder’s funeral procession.130 Stan-
ding in a land adjacent to a public street, the Westboro picketers sang hymns and dis-
played signs that stated, “God Hates the USA/Thank God for 9/11,” “America is Doomed,”
“Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “Pope in
Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You.”131
Snyder’s father was not able to see what was written on the signs until he saw a news
broadcast of the event later that evening.132 He then led a suit in the U.S. District Court
for the District of Maryland based on tort law against the Westboro picketers and the
Church itself, alleging defamation, publicity given to private life, intentional iniction of
emotional distress (IIED), intrusion upon seclusion, and civil conspiracy.133 After the jury
awarded Snyder $2.9 million134 in damages at the district court level, the Court of Appe-
als sided with the Defendants’ contention that the First Amendment “fully protected
125 See ANNEAR, Steve. “The Supreme Court Technically Has Its Own 252-Foot Buer Zone”, Boston Daily,
Jun 26, 2014. Available at:
zone-regulations/>.
126 ANNEAR, supra note 125.
127 Snyder v. Phelps, 562 U.S. 443 (2011).
128 Idem. at p. 448.
129 Idem.
130 See idem.
131 Idem.
132 Idem. at p. 449.
133 Idem. at pp. 449-50.
134 The District Court later remitted the punitive damages award to $2.1 million. 562 U.S. at p. 450.
Untitled-1 60 22/10/2018 17:35:01
Reproductive Healthcare Services and the U.S. Supreme Court: Beyond Roe v. Wade and “Abortion Clinics”
61
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 1, p. 43-68, jan./abr. 2017.
Westboro’s speech”135 and reversed the judgment.136 On certiorari, the question before
the U.S. Supreme Court was whether the First Amendment protects church members
picketing near a soldier’s funeral service from tort liability.137 The question would turn
on whether the Westboro Church members’ speech was a matter of public or private
concern.138
The Supreme Court noted that the First Amendment grants special protection
to speech related to public concerns,139 but that the same rigorous protection does not
extend to speech related to private matters.140 In order to decide whether Westboro’s
speech was related to private or public matters, the Court employed the Connick test,141
which requires the examination of the content, form, and context of the speech as re-
vealed by the whole record.142 The Court ruled that the content of Westboro’s message
pertained to broader public issues and that the context of the funeral procession did
not alter that conclusion.143 Recognizing that Westboro’s speech was also subject to
time, place, and manner restrictions, the Court concluded that Westboro was exempt
from tort liability because the picketing was conducted about 1,000 feet away from the
church, without disrupting the funeral.144
“Speech is powerful. It can stir people to action, move them to tears of both joy and sor-
row, and — as it did here — inict great pain. On the facts before us, we cannot react
to that pain by punishing the speaker. As a Nation we have chosen a dierent course
— to protect even hurtful speech on public issues to ensure that we do not stie public
debate.”145
Both parties in this case benetted from the buer zone in place. Even when
the funeral procession passed within 200 or 300 feet of the picket site, the distance
prevented Mr. Snyder from seeing what was written on the picket signs or hearing the
protesting until he watched the news later that evening.146 Had the picketers disrup-
135 Idem.
136 Snyder v. Phelps, 580 F.3d 206, 211 (4th Cir. 2009).
137 See 562 U.S. at p. 447.
138 Idem at pp. 444, 451.
139 See idem. at pp. 451-52 (drawing the distinction between matters of public and private concern).
140 See idem. at p. 452.
141 Connick v. Myers, 461 U.S. 138, 147-48 (1983); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S.
749, 758-59, 761 (1985).
142 562 U.S. at p. 444: “To determine whether speech is of public or private concern, th[e] Court must indepen-
dently examine the ‘content, form, and context,’ of the speech ‘as revealed by the whole record.’”
143 562 U.S. at pp. 454-56.
144 Idem. at p. 457.
145 Idem. at pp. 460-61.
146 Idem. at pp. 449, 462.
Untitled-1 61 22/10/2018 17:35:02
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 1, p. 43-68, jan./abr. 2017.
Karla A. Vergara Pérez
62
ted the funeral procession, made it so that Mr. Snyder was able to see what the signs
were displaying or hear the picketers’ message, his IIED claim would have been stron-
ger and Westboro would have probably been found liable. It was the church members’
obedience to the authorities’ instructions as to how to stage their demonstration that
shielded them from liability.147
At least seventeen states148 have enacted state statutes that explicitly prohibit
protesting or picketing funeral processions in order to protect families’ grieving pro-
cess.149 Out of those seventeen states, at least Arkansas, Arizona, California, Colorado,
Florida, Georgia, Massachusetts, Mississippi, Missouri, Montana, Nebraska, New Hamp-
shire, Oklahoma, Pennsylvania, and Wyoming — fteen states — enforce protective
buer zones around the funeral procession or site, ranging from 100 feet to 1,500 fe-
et.150 In addition, some states regulate when the demonstration might take place. For
instance, Arkansas prohibits picketing the funeral during and within the thirty minu-
tes immediately preceding or following the ceremony.151 Georgia, on the other hand,
prohibits demonstrations targeted at a memorial service from occurring “at any time
one hour prior to, during, or one hour after the posted time.”152 The classication of the
oense also varies by state. For example, Arkansas, Arizona, Florida, South Dakota, and
Wyoming are some of the states that classify the oense as some kind of misdemeanor,
while California imposes criminal penalties.153 If our laws recognize that mourning re-
latives’ vulnerable emotional state merit protection, why is a woman’s emotional state
and desire for privacy treated dierently by the courts?
147 Idem. at pp. 448-49.
148 Arizona (Ariz. Rev. Stat. Ann. § 13-2930 (2011)), Arkansas (Ark. Code Ann. § 5-71-230 (West 2013)), Califor-
nia (Cal. Penal § 594.37 (West 2013)), Colorado (Colo. Rev. St. Ann. § 13-21-126 (West 2006)), Florida (Fla. Stat.
§ 871.015 (2014)), Georgia (Ga. Code Ann. § 16-11-34.2 (West 2006)), Kentucky (Ky. Rev. Stat. Ann. § 525.155
(West 2007)), Massachusetts (Mass. Gen. Laws Ann. ch. 272 § 42A, Mississippi (Miss. Code Ann. § 97-35-18 (West
2006)), Missouri (Mo. Ann. Stat. § 574.160 (West 2014)), Montana (Mont. Code Ann. § 45-8-116 (West 2007)),
Nebraska (Neb. Rev. St. Ann. § 28-1320.02 (West 2011)), New Hampshire (N.H. Rev. Stat. Ann. § 644:2-b (2007)),
Oklahoma (Okla. Stat. Ann. tit. 21 § 1380 (West 2011)), Pennsylvania (tit. 18 Pa. Stat. and Cons. Stat. Ann. § 7517
(West 2006)), South Dakota (S.D. Codied Laws § 22-13-17 (2006)), and Wyoming (Wyo. Stat. Ann. § 6-6-105
(West 2011)).
149 For example, Colo. Rev. St. Ann. § 13-21-126(1)(b) explicitly recognizes that “[f]uneral picketing disrupts the
grieving process” and that it “intentionally inicts severe emotional distress on the mourners.” Subsection (A)(1)
(b) of Okla. Stat. Ann. tit. 21 § 1380 and Subsection (a)(2) of tit. 18 Pa. Stat. and Cons. Stat. Ann. § 7517 provide
that “the interests of families in privately and peacefully mourning the loss of deceased relatives are violated”
when funerals or commemorative services are “targeted for picketing and other public demonstrations…”
150 See supra note 148.
151 Ark. Code Ann. § 5-71-230(b)(3).
152 Ga. Code Ann. § 16-11-34.2(b)(4).
153 Cal. Penal § 594.37(b) provides: “Any violation of subdivision (a) is punishable by a ne not exceeding one
thousand dollars ($1,000), imprisonment in a county jail not exceeding six months, or by both that ne and
imprisonment.”
Untitled-1 62 22/10/2018 17:35:02
Reproductive Healthcare Services and the U.S. Supreme Court: Beyond Roe v. Wade and “Abortion Clinics”
63
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 1, p. 43-68, jan./abr. 2017.
2.4.2. The Polling Place Context
Buer zone laws are also enforced around polling places.154 For example, in
1992, the Supreme Court considered the constitutionality of a Tennessee election sta-
tute, which prohibited “the display of campaign posters, signs or other campaign ma-
terials, distribution of campaign materials, and solicitation of votes for or against any
person, political party, or position on a question” within 100 feet of entrances to polling
places.155 The statute allowed the authorities to extend the election-day “campaign-
free zone”156 by private action based on the size of the population.157 The buer zone
statute was challenged on First Amendment grounds158 because (1) it regulated poli-
tical speech, (2) the regulation of the political speech was occurring in a public forum,
and (3) the regulation was based on the content of the speech.159 The State of Tennes-
see articulated two interests served by the buer zone statute. First, the statute pro-
tects the rights of its citizens to vote freely for the candidates of their choice.160 Second,
that the restriction protects the right to vote in an election conducted with integrity
and reliability.161 Notwithstanding the Court’s nding that the statute was content-ba-
sed, the Court also recognized the State’s interests in “protecting voters from confusion
and undue inuence” were legitimate and compelling162 and that the law as written
was necessary to serve those interests.163 The plurality acknowledged that it is rare for
a law to survive the Court’s strict scrutiny analysis and upheld the constitutionality of
the law.164 Finally, and most signicantly for our purposes, the Court admitted that “[v]
oter intimidation and election fraud are successful precisely because they are dicult
to detect.165 If an individual purporting to intimidate voters is hard to discern, how can
the authorities, clinic sta, and women be expected to discern a violent anti-abortion
protester from a peaceful one in the RHCF context? In fact, an ocer who was present
on the day John C. Salvi III opened re on two Brookline clinics and killed two women
154 HO, Daniel E.; SCHAUER Frederick. Testing the Marketplace of Ideas. New York University Law Review,
New York, vol. 90, n. 4, pp. 1160-1228, oct. 2015. p. 1178.
155 Idem.
156 Burson v. Freeman, 504 U.S. 191, 193 (1992).
157 Tenn. Code Ann. § 2-7-111(d) (West 2003).
158 504 U.S. at p. 195.
159 Idem. at p. 196.
160 Idem. at p. 198.
161 Idem. at p. 199.
162 Idem.
163 Idem. at pp. 210-11.
164 Idem. at p. 211.
165 Idem. at p. 208.
Untitled-1 63 22/10/2018 17:35:02
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 1, p. 43-68, jan./abr. 2017.
Karla A. Vergara Pérez
64
stated there was nothing about Salvi’s demeanor that suggested that he was about to
violently attack one of the clinics.166
2.4.3. The Buer Zone Around the Supreme Court
In 1949, a federal statute established a buer zone around the U.S. Supreme
Court grounds.167 Currently, the statute, which is codied at Section 6135 of Title 40,
consists of two clauses within one sentence.168 The rst clause, referred to as the As-
semblages Clause by the Supreme Court, makes it unlawful “to parade, stand, or move
in processions or assemblages in the Supreme Court Building or grounds.”169 The se-
cond clause, known as the Display Clause, makes it unlawful to “display in the Building
and grounds a ag, banner, or device designed or adopted to bring into public notice
a party, organization, or movement.”170 It is worth noting that the statute was written
in such a way as to include the plaza in front of the Supreme Court building as part of
its “grounds.”171
The constitutionality of the statute was challenged by a college student who
was arrested for displaying a sign on the Supreme Court’s plaza in the Hodge v. Talkin
case. The student, Harold Hodge, Jr., brought the action on First and Fifth Amendment
grounds, alleging that the Assemblages and Display clauses were overbroad and un-
constitutionally vague and, thus, unconstitutionally restrictive upon his right to free
speech.172 After the District Court had entered summary judgment for the student, the
U.S. Court of Appeals for the D.C. Circuit reversed, holding that the Supreme Court plaza
constituted a “nonpublic forum” for purposes of the First Amendment and that the sta-
tute was a reasonable limitation on speech.173 A petition for certiorari review was led
on January 6, 2016 with the Supreme Court, but the Court denied certiorari on May 16,
2016.174
The applicable First Amendment analysis was dependent on whether the
plaza constituted a public forum or a nonpublic forum. In the Hodge opinion, Judge
166 CHILDRESS, Sarah. “Murder on Abortion Row”, Frontline (PBS), Jun. 26, 2014. Available at:
pbs.org/wgbh/pages/frontline/social-issues/watch-murder-on-abortion-row/>.
167 JACOBY, Je. “Strike down the Supreme Court’s ‘buer zone’”, Boston Globe: Opinion, Sep. 6, 2015.
Available at:
-plaza-ludicrous/Ih3ImBDFgVNAvu7bLHFuRP/story.html>.
168 40 U.S.C. § 6135; Hodge v. Talkin, 799 F.3d 1145, 1149 (2015).
169 40 U.S.C. § 6135; 799 F.3d at p. 1149.
170 Supra note 169.
171 799 F.3d at pp. 1149, 1150-51. See 40 U.S.C. § 6101(b)(1) (dening the limits of the Supreme Court grounds,
which extend to the curbs of the sidewalks, but exclude the sidewalks themselves).
172 799 F.3d at p. 1154.
173 Idem. at p. 1162.
174 See Hodge v. Talkin, 136 S. Ct. 2009, denying certiorari.
Untitled-1 64 22/10/2018 17:35:02
Reproductive Healthcare Services and the U.S. Supreme Court: Beyond Roe v. Wade and “Abortion Clinics”
65
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 1, p. 43-68, jan./abr. 2017.
Srinivasan cited a statement authored by Justice Breyer to explain why the plaza is
considered a nonpublic forum for First Amendment purposes: “Starting at the Court’s
western plaza, Gilbert’s plan leads visitors along a carefully choreographed, climbing
path that ultimately ends at the courtroom itself.”175 Because “the government retains
substantially greater leeway to limit expressive conduct in such an area…” — namely,
a nonpublic area — , “the government can impose reasonable restrictions on speech”
as long as no one viewpoint is repressed.176 The Court reasoned that the statute served
the government’s “interests in preserving decorum in the area of a courthouse and in
assuring the appearance (and actuality) of a judiciary uninuenced by public opinion
and pressure,” thus concluding that the law was a constitutional restriction.177 The opi-
nion considered “the sidewalk area directly in front of the Court’s plaza” evidence of the
statute’s reasonableness.178
Speech can be powerful. As a nation, we have chosen to protect hurtful speech
to not stie public debate. We have, however, also chosen to grant grieving families at
a funeral procession with the minimum protection and courtesy of a buer zone so
they may mourn in peace. We have also chosen to uphold campaign-free zones arou-
nd polling places to protect voters from undue inuence and intimidation. Our federal
courts have chosen to uphold a buer zone statute around the U.S. Supreme Court to
preserve decorum and an uninuenced judiciary. We have, somehow, found ways to
make these buer zones coexist with First Amendment rights. What makes reproduc-
tive healthcare clinics so dierent? Why can we not extend the same minimum protec-
tion to women? Erwin Chemerinsky, Dean of the UC Irvine School of Law and renowned
constitutional law professor, has argued: “Those going into clinics should not have to be
yelled at, shown graphic photographs, called names, and made to fear for their safety.
Women exercising their constitutional rights should be protected from harassment.”179
No woman who seeks the reproductive healthcare she is entitled to — whatever it may
be — should feel forced or compelled to explain her circumstances and why she is se-
eking medical attention from an RHCF when approached by a stranger on a sidewalk
— regardless of whether she is in fact emotionally vulnerable or not.
175 J. Stephen Breyer, Statement Concerning the Supreme Court’s Front Entrance, 2009 S. Ct. J. 831, 831 (2010).
176 799 F.3d at p. 1150.
177 Idem.
178 Idem.
179 CHEMERINSKY, supra note 123, at pp. 397-98.
Untitled-1 65 22/10/2018 17:35:02
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 1, p. 43-68, jan./abr. 2017.
Karla A. Vergara Pérez
66
3. CONCLUSION
In the Hill decision, the Court recognized that healthcare facilities are surroun-
ded by unique concerns and circumstances. The Court reasoned that hospital patients
are oftentimes in a vulnerable emotional state, which begs for a comforting and su-
pportive atmosphere. In the Snyder decision, the Court recognized that the Westboro
church members were free from liability because they abided by the buer zone laws in
place in order to protect the grieving family’s frail emotional state during the mourning
process. The Supreme Court upheld a Tennessee statute around polling places in order
to protect voters from intimidation and undue inuence. The U.S. Supreme Court’s own
buer zone has been upheld to preserve the Court’s decorum and an uninuenced ju-
diciary. Why are courts hesitant to extend the same minimum protection to the women
who seek access to RHCFs? Are these women not entitled to privacy? What makes the
reproductive healthcare context so dierent from other contexts? My research revealed
no evidence of a need for protective buer zones around hospitals. If an abortion may
also be performed in a mainstream hospital, why are they not also subject to similar
aggressions? What makes RHCCs so dierent in nature?
If upholding a buer zone statute may be considered an endorsement of the
pro-choice viewpoint over the anti-abortion movement, then striking down said sta-
tute can be interpreted as a prioritization of the anti-abortion viewpoint. I suggest this
binary is too broad. First, women seek reproductive care from physicians and sta at
RHCFs on a daily basis for a wide variety of reasons. Many women recur to these clinics
seeking routine pap smears, birth control, breast cancer and STD/STI screenings, and
many other services that might be more costly or more time-consuming if received at
a hospital. Moreover, sometimes an RHCF is the only available health facility for miles.
Second, the women who in fact seek an abortion more often than not do so after ha-
ving weighed their options heavily, wondered about the looming possibility of regret,
concluding that this is the best choice for them and their families. Failing to uphold
buer zone statutes that protect these women’s privacy leaves them with two choices:
To either ignore anti-abortion demonstrators at the risk of being yelled at or divulge
the reasons why they are seeking medical care at these facilities. Judge Karen Schreier,
a South Dakota federal judge, wrote in an opinion: “Forcing a woman to divulge to a
stranger at a pregnancy help center the fact that she has chosen to undergo an abor-
tion humiliates and degrades her as a human being.”180 The buer zone debate has
long been articulated as a First Amendment issue, but I suggest it is more practically a
women’s privacy and dignity issue.
180 Planned Parenthood Minn., N.D., S.D. v. Daugaard, 799 F. Supp. 2d 1048, 1060 (2011); “The Courts Step
In”, N.Y. Times: Opinion, Jul. 13, 2011. Available at:
html?_r=0.>.
Untitled-1 66 22/10/2018 17:35:02
Reproductive Healthcare Services and the U.S. Supreme Court: Beyond Roe v. Wade and “Abortion Clinics”
67
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 1, p. 43-68, jan./abr. 2017.
The McCullen Court unanimously asserted that, “petitioners are not protesters,”
but failed to provide further guidance as to where to draw the line. Indeed, who counts
as a sidewalk counselor? Is it anybody who self-proclaims to be one? Is it an elderly
woman handing out a leaet? Does a 35-year-old man standing silently outside a clinic
with a sign displaying an aborted fetus count as one or does he cross the line? Is he
deemed a more aggressive protester? Why?
Drawing the line between who is an aggressive abortion opponent and who is
not is dicult not just for the Supreme Court, but also for the women who seek repro-
ductive healthcare and for the authorities of the State that are trying to maintain the
peace. Similarly, assuming abortion opponents approach these women with the best
of intentions, it is nearly impossible for them to ascertain who among the many women
approaching an RHCC is seeking an abortion without invading their privacy. As a result,
they target every woman who seems to be approaching the nearest clinic, regardless of
the reason. What are these women supposed to do? Are they supposed to tell a stran-
ger they are not seeking an abortion to appease them? Are they supposed to ignore
them in the hopes that they will desist? If they opt for ignoring them, are these women
supposed to endure being yelled at? Are they supposed to tolerate being called “ba-
by-killer” or “gross” for the sake of abortion opponents’ First Amendment rights? What
about women who are seeking an abortion? Do they not have the right to their privacy?
Do they not have the right to have a few moments to themselves before making what
might be the hardest choice they have ever made? If we consider protecting mourning,
emotionally vulnerable families during funeral proceedings from further emotional dis-
tress a legitimate state interest, why is a woman’s emotional vulnerability not regarded
in the same way? If we are willing to enforce buer zones around polling places to
protect voters from voter intimidation and undue inuences, so as to preserve the inte-
grity of our democratic system, why are we reluctant to extend the same consideration
to women who feel intimidated for seeking the reproductive care they are entitled to
and need?
Contrary to the Supreme Court’s buer zone, buer zones around RHCCs are not
meant to preserve decorum or to assure the appearance and actuality of an uninuen-
ced judiciary. Buer zones around RHCFs are necessary to protect patients from unso-
licited advice, “counsel,” and even harassment. They are needed to safeguard women’s
right to privacy. Regardless of which side of the debate one subscribes to, no American
will contend that a fellow citizen has a lesser right to privacy. Restricting the time, place,
and manner in which anti-abortion demonstrations happen would only marginally re-
duce the area where the free speech may take place in exchange for patients’ increased
sense of respect, privacy, and overall human dignity.
Untitled-1 67 22/10/2018 17:35:02
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 1, p. 43-68, jan./abr. 2017.
Karla A. Vergara Pérez
68
4. REFERENCES
ALBERT, Richard. Protest, Proportionality, and the Politics of Privacy: Mediating the Tension Betwe-
en the Right of Access to Abortion Clinics and Free Religious Expression in Canada and the United
States. Loyola of Los Angeles International and Comparative Law Review, Los Angeles, vol.
27, n. 1, p. 1-62, jan./apr. 2005.
CHEMERINSKY, Erwin. Appearances can be Deceiving. Green Bag Online, Washington, vol. 17, n.
4, p. 389-404, jun./aug. 2014.
COWAN, Kristen G. The Tailoring of Statutory Bubble Zones: Balancing Free Speech and Patients’
Rights. Journal of Criminal Law & Criminology, Boston, vol. 91, n. 2, p. 385-428, dic./mar.
2000/2001.
EDWARDS, Jamie. McGuire v. Reilly: The First Amendment and Abortion Clinic Buer Zones in
the Wake of Hill v. Colorado. UC Davis Law Review, Davis, vol. 36, n. 3, p. 787-812, feb. 2003.
FINER, Lawrence B.; FROHWIRTH Lori F. et al.. Reasons U.S. Women Have Abortions: Quantitative
and Qualitative Perspectives. Perspectives on Sexual and Reproductive Health, [s.l.], vol. 37, n.
3, p.110–118, sep. 2005.
HO, Daniel E.; SCHAUER Frederick. Testing the Marketplace of Ideas. New York University Law
Review, New York, vol. 90, n. 4, p. 1160-1228, oct. 2015.
HODGSON, Jane E. Violence Versus Reproductive Health Care: In The United States Organised Me-
dicine Averts Its Gaze. British Medical Journal, London, vol. 310, n. 6979, mar. 1995.
SUTER, Sonia M. The “Repugnance” Lens of Gonzales v. Carhart and Other Theories of Reproduc-
tive Rights: Evaluating Advanced Reproductive Technologies. The George Washington Law Re-
view, Washington, vol. 76, n. 6, p. 1514-1598, nov./dic. 2008.
Untitled-1 68 22/10/2018 17:35:02
Para continuar a ler
PEÇA SUA AVALIAÇÃO