Buffer mentality

Pro-choice advocates want to create a protest-free zone around Massachusetts abortion clinics. Is the time right?

Abortion Rights by Ben Geman

Robert stood outside the Planned Parenthood Clinic at 1055 Comm Ave last Thursday, seemingly oblivious to the raw wind of the season's biggest snowstorm. As visitors to the clinic passed by, the 75-year-old from Somerville, who declined to provide his last name, quietly handed them fliers urging them to reconsider abortion. Inside the pamphlets, grisly color photos of aborted fetuses backed up the point.

Some people took the literature; others ignored him as they walked through the clinic doors. Either way, Robert prays for them. "I'm praying the rosary right now. Prayer is the most powerful thing in the world today," says Robert, who has protested in front of area clinics for more than a decade. "We can call upon the Lord to eventually stop this baby-killing."

"While [the women] are in there, I am praying for their fetuses," he continues, eyeing passersby to see whether they are heading inside. "They are being destroyed." Every so often, he says, someone reconsiders. "One life," says Robert, "is worth all the hours." Duct tape patches his parka where the fabric has worn away -- it's suspect protection from the chill. But Robert maintains that he has God, if not the weather, on his side.

If abortion-rights advocates have their way, however, the law will not be in Robert's corner much longer. Many pro-lifers aren't as quiet as he is, pro-choice activists say; instead, they harass, intimidate, and even assault women entering clinics. To stop such behavior, abortion-rights defenders are pushing a controversial law that would make Robert's activities illegal. A bill winding its way through the state legislature would create a "buffer zone" around clinics, outlawing protests within 25 feet of their doors.

Groups such as the Planned Parenthood League of Massachusetts and the state chapter of the National Abortion and Reproductive Rights Action League (NARAL) are backing the bill, sponsored by state senator Susan Fargo (D-Lincoln) and state representative Paul Demakis (D-Boston), which would be the first state law of its kind in the nation. It's making its second trip through the legislature after passing the Massachusetts Senate last year without coming to a vote in the House of Representatives. Advocates call it a crucial step toward protecting women from the psychological and physical attacks that can make the difficult experience of visiting a clinic even harder. Protests outside abortion clinics nationwide numbered more than 8000 last year, according to the Planned Parenthood League of Massachusetts, and NARAL reports that the past 20 years have brought almost 2000 violent incidents at clinics.

Although existing federal and state laws criminalize attacks, threats, and efforts to bar access to clinics, abortion-rights advocates say that protesters are still intimidating patients and workers. "Women and families who access health care are [being] harassed, and we need to do something about that," says Melissa Kogut, executive director of the state chapter of NARAL. "Women have the right to access health care without fear and intimidation." Adds Planned Parenthood spokesperson Pam Nourse: "The problem is when people follow patients or staff right into the clinics or right up to the door -- it's that in-your-face harassment. It's very unsettling. . . . Think about having a complete stranger follow you and yell at you."

Indeed, Fargo says her decision to introduce the bill stems in part from a protest she witnessed a few years ago -- one very different from Robert's silent advocacy. "It was like walking into a war zone," she says of the atmosphere outside Planned Parenthood that day. "I have never felt anything like it. . . . They were harassing people just passing by. I felt as if I was being intruded upon."

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Backers of the buffer zone believe that recent events in the abortion wars may help create a favorable public climate for the bill. Last October's murder of New York abortion doctor Barnett Slepian provoked broad outrage. More recently, an Oregon court issued a $107 million ruling against promoters of the grisly "Nuremberg Files" Web site, which posted "Wanted" photos and home addresses of abortion providers (see "Wanted: Free Speech," News, February 12).

To Massachusetts pro-choice advocates, this menacing brand of activism proves that tougher laws are necessary. Most acknowledge that buffer zones could not prevent a murder such as the Slepian killing -- or a rampage like that of John Salvi, who killed two people at Brookline clinics in 1994. Nonetheless, say advocates, such events put the dangers faced by doctors and patients into the public eye. "I think the Oregon decision spoke clearly to the fact that anti-choice extremists will be held accountable when they cross that line of free speech," says Nourse. "Harassment and intimidation cross that line."

Not surprisingly, the buffer-zone bill faces strong and organized resistance. Massachusetts Citizens for Life calls the measure unconstitutional. "We are going to actively oppose this. It's anti-speech," says Patricia Doherty, the group's legislative director. "The real purpose of this bill is to create more rights for one group of people [by] stripping another group, pro-life protesters, of their First Amendment right to free speech." The bill, according to Doherty, would be another in a string of efforts to demonize pro-life advocates, who she says are more likely to pray quietly than to intimidate. "People have always had a legitimate division of opinion on very serious subjects," she says. "Never has one side been as squelched as the pro-lifers, yet they are the most serious, dedicated, and prayerful people I have met." (Fargo points out that the bill's language doesn't single out one group in particular, but backers obviously have pro-lifers in mind when they discuss harassment and intimidation at clinics.)

Doherty could not say whether her organization would challenge the measure in court if it passed. One expert, though, notes that many local ordinances regulating clinic protest have been disputed in court, with varying degrees of success. "I think that if this law passes it will be challenged by protesters; they have been pretty aggressive in challenging injunctions and ordinances and state statutes that affect their activities," says Janet Crepps, an attorney with the New York City-based Center for Reproductive Law and Policy, who thinks the Massachusetts bill would stand up in court. "I think the courts are trying to strike the right balance between the right to access health care without violence and intimidation and the First Amendment rights of protesters."

It's hard to predict how such a challenge would be resolved. No other states have buffer-zone laws on the books, although last month the Colorado Supreme Court upheld a close cousin -- a statewide measure that created a "floating bubble" around visitors, protecting them from being approached near clinics. In addition, Fargo cites the 1994 US Supreme Court ruling in Madsen v. Women's Health Clinic, which upheld the creation of a buffer zone around a Florida clinic. But that buffer zone, like others around specific clinics, was created by a court injunction against specific protesters or groups. Massachusetts, in short, would be in uncharted waters with a law keeping all protesters from all clinics.

The absence of clear court precedent isn't the only evidence that the Massachusetts proposal raises tricky constitutional questions. Two years ago, the state chapter of the American Civil Liberties Union was unable to reach a consensus on whether to support an earlier buffer-zone proposal that never made it to the legislature. "These are the kind of divisions you have when you have rights in conflict," says Norma Shapiro, issues specialist with the Massachusetts ACLU. On one hand, she notes, is the right to an abortion, while "on the other hand, there are serious questions about people's First Amendment rights to protest. Those have to be balanced when you get into a delicate situation, and our board was not able to do that balancing."

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If the debate around the bill will turn on constitutional questions, the measure's ultimate success or failure could rely on something else: the will of House Speaker Thomas Finneran (D-Mattapan). Finneran, who is pro-life, has a well-known penchant for bottling up legislation he doesn't like. He did not return phone calls seeking comment for this story.

Demakis and other supporters say the bill is about public safety, not abortion. Indeed, state representative Thomas Kennedy (D-Brockton), among those Kogut calls a handful of pro-life legislators backing the bill, cites public safety as the reason for his support. Still, Demakis is wary of the Speaker. "I expect he will do everything he can to impede the progress of the bill," he says. "I think we will try and create political pressure on him and compel him, in the spirit of democracy, to allow debate." Adds Kogut: "Given his [Finneran's] anti-choice record, we have cause to be concerned. . . . [But] we're hoping he will view this as a public-safety issue." For now, informal meetings between legislators and advocates have begun. "It will be a PR campaign," promises Demakis. "A very rigorous PR campaign." If legislators succeed in getting the measure through the House, it will likely be signed by Governor Paul Cellucci. The governor, who is pro-choice, "is in favor of women having safe and secure access to the clinics," says Cellucci spokesperson Jose Juves.

Yet as Robert's determined protests suggest, the bill's supporters will face equally committed opponents. "If they ever pass that law, it will be a disgrace," Robert said as he stood outside the clinic, willing to endure miserable weather on the chance that he could change someone's mind. "This is a public thoroughfare. I have the right to walk back and forth, and I have the right to try and help people."

Ben Geman can be reached at bgeman[a]phx.com.