Volume XXIV

Abortion Protesting

by Edited by Arielle Schechtman

From the 1973 Roe v. Wade decision1 until 2022, the Supreme Court recognized abortion as an exercise of a fundamental privacy right grounded in the Constitution. In June 2022, the Supreme Court announced its decision in Dobbs v. Jackson Women’s Health Organization, overruling Roe and Planned Parenthood v. Casey and holding that the Constitution does not confer a right to abortion. The Dobbs decision rested partially on the argument that abortion remains controversial, surrounded by emotionally charged debates that combine issues of politics, gender, and healthcare. Accordingly, people express their views on abortion through various forms of advocacy and protest.

The right to protest is at the core of free speech, protected by the First Amendment. The 1960s civil rights movement used protest successfully to educate the public and ultimately bring about changes in the law. Abortion protesting has differed from other forms of protesting, however, because of the competition between the privacy rights guaranteed to abortion seekers and the free speech rights of abortion protesters. By linking abortion with fundamental constitutional rights, Roe v. Wade set the stage for debate over access to abortion services and rights associated with abortion protesting.

Anti-abortion activists have organized efforts to protest the legality of abortion
since Roe. For example, each year on January 22nd, on the anniversary of Roe, anti-abortion and pro-choice
groups alike rally outside the U.S. Supreme Court. On occasion, abortion protestors have directly prevented abortion-seekers from accessing healthcare services. Although the First Amendment protects an individual’s right to protest, anti-abortion protesters’ actions exceeded the parameters of constitutionally protected free speech when those actions involved violence and threatening behavior. In response, abortion rights supporters developed an arsenal of legal tactics for confronting anti-abortion protesting, ranging from general trespassing laws to federal legislation specifically protecting clinic access. In the wake of Dobbs, however, analysts warn of a rising threat of violence in the realm of abortion protesting, with the Department of Homeland Security highlighting the potential for violence by domestic extremists. This increase in violent threats and attacks against abortion-rights activists is likely tied to and amplified by the larger rise in hate speech and political violence that the United States (U.S.) had seen in the preceding five years.

This Article provides an overview of abortion protesting, steps the federal government has taken to protect the rights and safety of patients and abortion providers, anti-abortion protesters’ free speech rights, and the First Amendment debate surrounding abortion protest. Part II discusses federal legislative approaches upheld in abortion protesting cases, specifically the Freedom of Access to Clinic Entrances Act of 1994 and the constitutional challenges brought against the statute. Part III discusses state legislative approaches to ensuring access to clinic entrances. Finally, Part IV analyzes the shifting abortion protesting landscape post-Dobbs.

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