Abortion is Okay, But Abortion Protest Buffer Zones Aren’t

by Benjamin Studebaker

The US Supreme Court recently ruled unanimously to strike down a Massachusetts law that prohibited protesting within 35 feet of abortion clinics. While I vehemently disagreed with the court’s Hobby Lobby decision and support permissible abortion, they got this one right. Here’s why.

First, let’s get clear on what the precise consequences of this ruling are. The court did not overturn laws that prevent abortion protesters from physically obstructing access to clinics or from harassing patients. This is all to the good–while people should be allowed to protest and assemble in public spaces, they should not be allowed to obstruct other citizens from engaging in legal activities or to harass, assault, or otherwise abuse them.

All this court’s ruling does is to allow otherwise legal forms of protest to take place in the entirety of the public space around the abortion clinic rather than in some subset. Now, we can realistically expect many of these abortion protesters to be rather hostile toward patients (after all, they believe the patients are murderers). The risk, say opponents of the ruling, is that without a buffer zone, it will be impossible to prevent patients from being harassed, and this harassment will result in de facto obstruction of access. What does it mean to harass someone, and how do we ensure that when a patient is harassed by a protester who goes too far that this patient is protected?

Harassment is not merely a crime in the context of abortion protests–people get arrested and charged with harassment in many different kinds of situations. In day to day life, we do not have a buffer zone law to prevent people from approaching us on the street or in a subway. These people may say all kinds of horrible things to us, but when are we justified in accusing them of harassment? What separates harassment from the mere levying of insults, which, while rude, is not illegal?

My old copy of Black’s Law Dictionary has a legal definition for harassment. Does it satisfy? Let’s take a look:

Words, conduct, or action (usually repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.

There seems to be two key features here that separates harassment from other kinds of rude behavior:

  1. It is directed at a specific person.
  2. It is usually repeated or persistent.

Sometimes a person will say something horrible to a specific personally, but not in a repetitive or persistent way. For instance, Jane might be walking down the street and hear someone use hate speech against her, calling her a bitch, a nigger, a faggot, or some other such thing. This would be rude and in extremely poor taste, but it would not be harassment because it’s a one-off incident. Jane can walk away from the situation without being further pestered.

Other times a person will be persistently horrible, but not in a way that targets a specific individual. For instance, Bob might stand in a public park with a sign reading “God Hates Fags” and make a hate-filled speech to no one in particular. He might do this all day long. But no individual is being specifically targeted by Bob. We are all at liberty to leave the area and ignore Bob. He is not going to follow any of us individually. Bob is a dick, but Bob is not harassing anyone.

What would make either of these scenarios harassment? If Jane’s abuser follows Jane around and continues to throw abuse her way, Jane’s abuser would be both targeting Jane specifically and being persistent. This would make him guilty of harassment. If Bob picked out a particular person in the park and followed this person around hurling abuse, or even just trying to make that person have a conversation he did not want to have, Bob would be not merely persistent, but persistent with a target.

So, carrying this line of reasoning over, when does an anti-abortion protester’s protest turn into harassment? It’s not a matter of how close the protester is geographically to the patient, it’s a matter of whether or not the protester is both directing the protest at one individual and being persistent in so doing. This gives us a typology of abortion protesters:

  1. Persistent, Non-Specific: this protester continually waves a sign or makes a speech against abortion, but never approaches individual patients to engage them specifically. He is unpleasant for patients, but he is not harassing them.
  2. One-Off, Specific: this protester approaches individuals to attempt to dissuade them from having abortions and perhaps even says something awful or abusive directly to an individual patient, but does not physically follow patients and does not pester them repeatedly to have conversations they do not want to have. He is unpleasant for patients, but he is not harassing them.
  3. Persistent, Specific: this protester approaches individuals, follows them around, gets in their face, and refuses to take no for an answer. He may yell abuse, or he may merely be trying to have a conversation, but his tactics cross a line and are not acceptable. He is guilty of harassment and should be arrested.

When trying to decide whether or not to arrest an abortion protester, the relevant question is which kind of abortion protester this is. Even if the protester is quite rude, if he is not rude in a persistent way and to specific individuals, he is not guilty of harassment. It doesn’t particularly matter if he is standing two feet away or two thousand feet away, the same rules apply. People can harass one another over the phone or over the internet if they do so in a persistent, targeted way.

Since it is possible to protest within 35 feet of an abortion clinic without necessarily harassing someone and it is possible for a law enforcement officer to be able to objectively evaluate whether or not a protester is committing harassment, protests outside of abortion clinics should be permitted as a form of assembly. But this change in the law should have other consequences the court has not yet recognized–there are many other contexts in which we currently have protest buffer zones where they are not justified. The Supreme Court building itself, for instance, has a buffer zone, and throughout the United States, protesters are frequently confined to “free speech zones“, which minimize their reach and efficacy. We need to recognize that as long as a person is in a public space, it’s not about where you protest, it’s about how you protest. Whether you’re protesting for or against abortion or for or against any other cause in any other circumstance, that should be the case.