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On Buffer Zones and the First Amendment

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Not that I could hope to match the wisdom of Charles C. Cooke, but I have a piece on the oral arguments in the buffer zone case up.

I didn’t see it until after the piece went live, but I was somewhat puzzled by Emily Bazelon’s framing of the argument:

Most of the time, abortion providers and supporters argue for treating abortion as a regular part of medicine and women’s health. In reaction to the rash of new abortion restrictions in Republican-controlled statehouses, the Center for Reproductive Rights wrote, “No medical procedures other than abortion are targeted for restrictions aimed at reducing their effectiveness and increasing their expense and inconvenience.”

And yet there is one area in which clinics do want special treatment from the government: They want to keep opponents of abortion away from the clinic entrances patients, staff, and providers must walk through. In Massachusetts, abortion critics who are trying to talk women out of going through with the procedure—you can call them “protesters” or “counselors,” depending on your point of view—have to stand 35 feet from a clinic entrance or driveway.

The obvious problem with this attempted gotcha is that the distinction drawn by the reproductive health clinics makes perfect sense while the reverse doesn’t. One the one hand, there are no actual health risks posed by abortion that justify singling out abortion clinics for special regulations (as opposed to applying neutral requirements that apply to all medical professionals) — abortion is safer than childbirth. And the real agenda of these regulations — to shut down clinics that perform abortions — isn’t even hidden by their advocates. On the other hand, there are good reasons to treat reproductive health clinics differently in terms of access and safety — there are no systematic campaigns of terrorism and harassment against dental clinics or walk-in medical clinics. Maybe there’s a good argument for why the state can create buffer zones around public officials, funerals, and the Supreme Court of the United States but not reproductive health clinics, but this sure isn’t it.

I also think this example from Liptak’s piece about the case is instructive:

But as three young women made a path for the door, a second protester, Mary O’Donnell, called out from the far side of the yellow line. Her tone was conversational, and her words were partly muffled by passing traffic.

“Please allow us to help you,” Ms. O’Donnell said. “It’s not too late to change your mind.”

The women kept walking.

Ms. O’Donnell, 81, said she found the line baffling. “This is wrong,” she said. “It’s bizarre.”

Opponents of reproductive rights certainly have a First Amendment right to make their views known, including to women who might be about to obtain or arrange an abortion. But the Massachusetts law does not prevent this. It does prevent some protestors from continuing to make arguments on precisely their terms to a private individual who has already demonstrated herself an unwilling audience. In the context of the genuine safety threats to reproductive health clinics, it’s far from obvious to me that this particular type of conduct is protected by the First Amendment.

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