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The Street Politics of Abortion
Speech, Violence, and America's Culture Wars
By Joshua C. Wilson
Stanford University Press Copyright © 2013 Board of Trustees of the Leland Stanford Junior University
All rights reserved.
Abortion Politics, Legal Power, and Storytelling
When the United States Supreme Court decided the case of Roe v. Wade in January 1973, it simultaneously struck down state abortion laws and helped fuel the creation of the modern social conservative movement. Up through the early 1970s the legality of abortion was largely seen as a "Catholic issue." That changed in the aftermath of Roe v. Wade. While it did not happen immediately, legalized abortion became a central issue for social conservatives who came to see Roe as a particularly morally intolerable example of the political Left once again marshaling the unelected federal judiciary to undo the popular will of the states.
In this line of conservative thinking, the Supreme Court, headed by Chief Justice Earl Warren, was seen as forcing racial integration, banning prayer and religion from public life, creating soft-on-crime policies, and liberating sexual taboos. This growing catalog of offenses helped bring Nixon's "Forgotten Americans" to the polls in 1968, but even that was apparently not enough to stop the Court's socially disruptive progressive trend. Nixon was almost immediately able to reform the Supreme Court in his first term with four judicial appointments, including Chief Justice, but the Court persisted in producing progressive rulings. Over two decades of controversial court cases and social turmoil had helped to move the Forgotten Americans and the "Silent Majority" to vote, but Roe v. Wade was the ruling that would mobilize a more sustained and not-so-silent movement.
The anti-abortion movement has taken many forms in the four decades since. In the 1980s and 90s one of its identifying hallmarks was clinic-front activism. These protests took various forms, but collectively they served to publicize the cause, gain more members, give participants the feeling of empowerment via direct action, impede clinic access, and tax clinic resources. A less desirable outcome, from the anti-abortion perspective, was that this activism also spurred abortion-rights advocates to organize to directly counter these street-level tactics. While those fighting for abortion rights may have believed that they had reached their goal with the Roe decision, it quickly became clear that the Supreme Court case was just one step in a protracted and ongoing movement-countermovement struggle.
As clinic-front anti-abortion protests grew in frequency, magnitude, and intensity, abortion providers and their supporters sought ways to respond. Their search yielded its own direct action strategies, but it also returned abortion-rights proponents to the state and, in particular, to the judiciary. At times, abortion-rights advocates attempted to use state-based means to win dramatic gains against their adversaries. The National Organization for Women (NOW) tried to use federal anti-racketeering (or RICO) laws, which were created to fight organized crime, to criminalize specific anti-abortion tactics and organizations. More commonly, abortion-rights activists sought to obtain court orders and legislation that governed how anti-abortion protests could occur—for example, establishing specific distances that needed to be maintained between activists and clinic doorways.
When clinics and abortion-rights groups succeeded in securing injunctions and other legal measures against their opponents, anti-abortion activists did not cower. Instead, they fought back with a legal strategy of their own. Anti-abortion activists around the country began challenging the restrictions by arguing that such measures violated their constitutional right to free speech. The combination of pervasive clinic-front activism, available legal resources, and crosscutting First Amendment questions touched off a wave of cases that disproportionately occupied the United States Supreme Court's docket.
The nation's high court has heard and written opinions for eight antiabortion activism regulation cases since the late 1980s. The most recent of these cases, decided on February 28, 2006, settled the prolonged dispute over the application of RICO laws to anti-abortion activists. In addition to the cases that the Court has heard, individual Justices have gone out of their way to author two concurrences and three dissents for denials of certiorari ("cert") (i.e., instances where the Court has decided to not hear a case). This is a very uncommon step for a Court that rejects roughly 99 percent of the cases that are appealed to it. With these responses to denials of cert included, members of the Court have written opinions for 13 cases related to the regulation of anti-abortion activism in less than 20 years. As the following chapters will show, three of these cases—Planned Parenthood Shasta-Diablo Inc. v. Christine Williams (1995), Schenck v. Pro-Choice Network of Western New York (1997), and Hill v. Colorado (2000)—represent the range of clinic-front activism, the regulatory responses to it, and the period's importance in the progression of abortion politics and the development of the New Christian Right.
Briefly, the Williams case represents largely nonviolent, small-scale but repetitive clinic-front protesting. Over the course of this conflict, groups of anti-abortion activists gathered at a clinic in Northern California and typically held signs and attempted to distribute materials to those who were accessing the clinic. This activism was ultimately responded to with a clinic-specific injunction that pushed the anti-abortion activists away from the clinic. While it was twice appealed to the U.S. Supreme Court, the injunction was repeatedly allowed to remain in place.
Similar events led to Schenck v. Pro-Choice Network of Western New York, but they occurred on a much larger and more aggressive scale. Instead of relatively small-scale recurrent activism at one clinic, the Schenck case included large-scale repetitive protests known as "rescues" at a number of clinics in Western New York State. The nationwide anti-abortion group Operation Rescue popularized rescues. As a form of protest, rescues involved both peaceful and aggressive activities ultimately intended to close the targeted clinics. A coalition of clinic supporters and abortion providers in Western New York organized in response and countered this activism through a collection of direct-action and state-based means. The resulting Supreme Court case centered on the legality of a regional injunction that established both fixed and floating buffer zones around clinics in Western New York. The Court upheld the fixed buffer elements of the injunction, but struck down the floating buffer provision.
The final case, Hill v. Colorado, considered the constitutionality of Colorado's "Bubble Bill"—a law governing activism within 100 feet of health care facility entrances. Unlike the previous two cases, the regulation in Hill is not in response to a singular event or a particular ongoing conflict. Rather, according to one of the bill's sponsors, the Colorado "Bubble Bill" was born of a feeling that the state needed new "pro-choice legislation." The case is also unique in that it introduces legislative, as opposed to just judicial, responses to anti-abortion protesting. Noting the adverse effect the Bubble Bill could have on their activities, a group of anti-abortion advocates organized to fight the legislation in public hearings and eventually challenged the law in the U.S. Supreme Court. The Court upheld the Bubble Bill in full, opening the door to the federal Freedom of Access to Clinic Entrances Act, which effectively ended the most aggressive forms of clinic-front anti-abortion activism nationwide.
Taken together, these conflicts illustrate the rise and fall of the most visible, participatory, and overtly contentious period of abortion politics in America. The eventual subsidence of the street politics of abortion in response to clinics' and abortion-rights advocates' legal victories, however, did not mark the end of the anti-abortion movement or abortion politics. Like flowing water that hits an obstruction, efforts in the conflict were merely diverted to a different course. Activists from both sides of the conflict have thus—often literally—moved from the streets to continue the fight in state legislative halls and courtrooms around the country. Williams, Schenck, and Hill trace and explain this path, unpacking reasons for the resilience of abortion politics while also showing how these events matter for the institutionalization of the New Christian Right more broadly.
Through these cases we see how abortion-rights activists have largely taken a defensive stance that reacts to, rather than initiates action against, their opponents. In the decades since Roe, the abortion-rights movement has yet to find a way to take the offensive, control the political discussion, or sustain popular involvement. They have come to be both behind and significantly subject to the anti-abortion movement's actions. As a result, they show no signs of being able to slow, let alone end, the ongoing movement-countermovement conflict over abortion. Rather, they can only perpetuate it.
While one side of these cases is illustrative of a movement that faces difficulty in spite of its successes, the other side provides examples of a movement that is in many ways successful in spite of its failures. These cases demonstrate the resilience of anti-abortion activists and show a movement that is both entrepreneurial and developing in ways that have significant ramifications for the broader Religious Right's place in American politics. The anti-abortion movement's lead in transitioning to new "arenas of conflict" is a prime example of strategic creativity, resource development, and the way in which movement-countermovement struggles continue. The anti-abortion movement has been successful at making these transitions because, as these cases show, they have benefited from a combination of passionate, able activists and available resources. The former creates the will and aptitude to develop new strategies in the face of defeat, while the latter provides the means to persist.
The stories surrounding Williams, Schenck, and Hill largely start with local grassroots organizations with limited resources and elite access. They also, however, introduce then-fledgling organizations and emergent leaders that ultimately rose to prominence through their involvement with these cases and led the way to the new institutional and elite politics of abortion. What's more, some of these organizations and associated leaders have used their experience in these conflicts to become important not only within abortion politics but also within the New Christian Right and the modern Republican Party.
First Amendment Doctrine and Anti-Abortion Protests
Before delving into more detail concerning the specific questions and issues that form this book's core, it is useful first to survey some of the legal matters involved in anti-abortion protest regulation cases. While their specific facts and legal arguments vary, all of the cases examined in this book generally address a similar doctrinal constellation within First Amendment law: the regulation of speech within the "public forum."
Public forum doctrine refers to the collection of cases that began in 1939 and address the regulation of speech in public spaces such as in parks and on sidewalks. Because a broad spectrum of the public mixes and interacts in these spaces, they create a natural space in which to disseminate and debate ideas. As a result, the public forum is at the heart of the First Amendment, and speakers correspondingly experience a higher degree of freedom and protection when they are acting within it than when they are acting on privately owned property.
This being said, the same features that make the public forum an ideal space for speech also make it a volatile and potentially dangerous place. Speech and ideas can excite, offend, and instigate. Unpopular speakers can be attacked, mobs can be mobilized, and violence can be fomented. Considering this, the state must not only protect the rights of speakers within these forums but it must also protect the rights of other people to carry on safely and freely in public. Thus a tension exists in finding the balance between these competing rights. Many of the Court's First Amendment decisions and the resulting doctrinal lines are the result of trying to strike a balance between these interests. What spaces are, and are not, public forums? When is it permissible to regulate speech, or aspects of speech, within the public forum? And when it has been determined that speech in the public forum can be regulated, what are the limits on the resulting regulation?
In the anti-abortion protest regulation cases, there is relatively little debate between the parties about what is defined as the public forum. Neither side generally questions that property rights restrict the protesters' activities on clinic property. Instead, the conflicts hinge on the degree to which clinics and the state can regulate the protesters when they are on the public sidewalks surrounding these clinics. This leads to a set of more specific legal questions concerning both "time, place, and manner" and "captive audience" doctrine, as well as the "content neutrality" of the existing regulations.
The question of content neutrality refers to whether a regulation takes direct aim at the content of regulated speech. If a regulation targets the speech because of the speaker, the subject matter, the viewpoint expressed, or the predicted impact of the speech upon the audience, it operates as a form of censorship—an end deemed unacceptable by the Supreme Court. In the words of Justice Marshall, "[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship."
Expressive behavior may, however, be regulated if it is done without reference to content. For example, it is permissible to regulate the conditions of expression, or, in other words, the "time, place, and manner" of speech. At its creation, time, place, and manner reasoning was used by the Court to synchronize the exercise of free speech (in the originating case, a public parade) with other functions of everyday life in order to "conserve the public convenience." While the local government required a permit in order to hold a parade, it was not deemed an unconstitutional restriction on speech rights because the exercise of speech rights needed to be coordinated with other social functions. The Court determined that the way in which the government coordinated the public's and the marchers' needs did not make reference to the parade's content, its participants, or its predicted impact upon observers. As such, the regulation was considered to be a content-neutral regulation of the time, place, and manner of speech. If, however, obtaining the permit were dependent upon the government approving of the parade's message, the regulation would be declared unconstitutional.
The Court has since attempted to detail what may be considered a content-neutral regulation of the time, place, and manner of speech. The standard applied in the abortion cases directly stems from Ward v. Rock Against Racism (1989)—a case that involved a dispute over the regulation of amplified sound in a public venue. In brief, the standard holds that time, place, and manner regulations must meet three requirements. First, "the principal inquiry in determining content neutrality ... is whether the government has adopted a regulation of speech because of disagreement with the message it conveys." Second, the regulation "must be narrowly tailored to serve the government's legitimate content-neutral interests but that it need not be the least-restrictive or least-intrusive means of doing so." Finally, regulation must "leave open ample alternative channels of communication." While the purpose of these regulations is to "coordinate" speech, critics have pointed out that the content-neutrality requirement and the time, place, and manner test still allow the government to "subordinate" speech—a claim also made by those advocating for anti-abortion protesters.
Along with time, place, and manner regulations, the Court has said that intervening on behalf of "captive audiences" is acceptable. The resulting captive audience doctrine is an attempt by the Court to balance the rights of speakers and unwilling audiences. This is a matter of great concern in these anti-abortion protest conflicts. The rights determination in such cases depends upon the speech's context. If the audience is reasonably able to avoid unwanted speech and is in a traditionally defined public forum, the speaker tends to retain a considerable amount of Constitutional protection. If the audience is unable to escape the speech, or is in a place considered insulated from the public forum, "the First Amendment permits the government to prohibit offensive speech as intrusive." The claims made on behalf of clinics and their clients in the cases studied here are: (1) that the patients who are trying to access clinics are captive audiences; and (2) that the inherent medical risks of the abortion procedure require insulation from the public forum.
Excerpted from The Street Politics of Abortion by Joshua C. Wilson. Copyright © 2013 Board of Trustees of the Leland Stanford Junior University. Excerpted by permission of Stanford University Press.
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