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Increased Violence Changes The Debate

Violence has been a part of the heated debate surrounding abortion ever since the 1973 Roe v. Wade decision that guaranteed a woman's limited right to an abortion. Bombings, ARSON, and even murder have been committed by anti-abortion activists in the name of their cause. The National Abortion Federation counted more than three thousand violent or threatening incidents against abortion clinics between 1976 and 1994. In the 1990s, the extremist wing of the anti-abortion movement turned even more violent, including murder as part of its tactics. Some extremists now view killing HEALTH CARE professionals who perform abortions as justifiable HOMICIDE.

Between March 1993 and the end of 1994, five staff workers at abortion clinics were murdered by anti-abortion zealots. Dr. David Gunn was fatally shot on March 10, 1993, outside an abortion clinic in Pensacola, Florida, by Michael Griffin, who was sentenced to life in prison. In August 1994, Dr. John Bayard Britton, age 69, who had replaced Gunn as circuit-riding doctor in northern Florida, and his escort, James Barrett, age 74, were shot repeatedly in the face with a shotgun as their car pulled into the parking lot of the Ladies Clinic of Pensacola. Minutes later, police arrested Paul Hill, an anti-abortion extremist. President Bill Clinton called Britton's and Barrett's killings a case of domestic TERRORISM. Hill was executed in September 2003. In December 1994, in perhaps the most gruesome incident of all, John Salvi killed two people and wounded five more when he opened fire in two Boston-area family planning clinics. Salvi was sentenced to life in prison, where he later committed suicide.

The government and abortion rights groups have responded to the increased violence in two ways: reviewing existing laws to find those that can be used to investigate and prosecute violent groups and individuals, and creating new laws that specifically address access to abortion clinics. In 1993, women's rights groups attempted to use an existing civil rights law as precedence in Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 113 S. Ct. 753, 122 L. Ed. 2d 34 (1993). They were not successful. The Supreme Court ruled that a nineteenth-century federal civil rights law (42 U.S.C.A. § 1985[3]) aimed at protecting African Americans from the KU KLUX KLAN could not be used to prevent anti-abortion protesters from blockading abortion clinics. Originally enacted as part of the KU KLUX KLAN ACT of 1871, the law was specifically aimed at addressing mob violence and VIGILANTISM against African Americans.

In 1989, a lower-court ruling found that Operation Rescue had violated trespassing and public NUISANCE laws and had conspired to violate the right to interstate travel of women seeking abortions at clinics. The court banned Operation Rescue from trespassing on or obstructing access to abortion clinics (NOW v. Operation Rescue, 726 F. Supp. 1483 [E.D. Va. 1989]). This decision was reversed by the Supreme Court in Bray, in a 6–3 ruling, when it held that women did not qualify as a class protected from discrimination by the provisions of the Ku Klux Klan Act.

After Bray, congressional supporters of abortion rights, Representative Charles E. Schumer (D-N.Y.) and Senator EDWARD M. KENNEDY (D-Mass.), introduced the Freedom of Access to Clinic Entrances Act (FACE), which gives federal courts the authority to issue restraining orders against protesters blockading abortion clinics (18 U.S.C.A. § 248). It was signed into law by President Clinton on May 26,1994. The law allows for federal criminal prosecution of anyone who, "by force or threat of force or by physical obstruction, intentionally injures, intimidates, or interferes…with any person… obtaining or providing reproductive health services." The law also makes it a federal crime to intentionally damage or destroy the property of any reproductive health facility, and it permits persons harmed by those engaging in prohibited conduct to bring private suits against the wrongdoers. The penalties for violation of the act include imprisonment for up to one year and a fine of $10,000 for a first offense; for each subsequent offense, penalties can be up to three years' imprisonment and $25,000. FACE is patterned after existing civil rights laws, including 18 U.S.C.A. § 245(b), which prohibits force or threat of force to willfully injure, intimidate, or interfere with any person who is voting, engaging in activities related to voting, or enjoying the benefits of federal programs. Nevertheless, FACE is not identical to previous federal civil rights laws, particularly where it prohibits acts of physical obstruction.

FACE ignited immediate challenges by anti-abortion groups who claimed that it abridged their FIRST AMENDMENT right to FREEDOM OF SPEECH. Courts were unwilling to invalidate the law on this ground, reasoning that the law prohibits only conduct—as in "force," "threat of force," and "physical obstruction"—rather than speech (see Council for Life Coalition v. Reno, 856 F. Supp. 1422, No. 94-0843-1EG[CM], 1994 WL 363132 [S.D. Cal. 1994]).

Since the Freedom of Access to Clinic Entrances Act was passed, the Supreme Court has reviewed several laws restricting protests at clinics, with the goal of BALANCING the interests of protecting women seeking abortions with the freedom of speech interests of abortion clinic protesters. The Court has used an "intermediate scrutiny" standard to make their determinations. This standard analyzes the constitutionality of any regulation that infringes on speech to see whether it serves a legitimate STATE INTEREST, whether it is narrowly tailored to serve that interest, and whether alternative paths exist for protesters to communicate their message.

For example, in Schenck v. Pro-Choice Network, 519 U.S. 357, 117 S.Ct. 855 (1997), by an 8–1 vote, the Court invalidated a New York state court injunction that created a 15-foot "floating" buffer zone around any person or vehicle seeking access to or leaving an abortion clinic. The court majority held that the floating buffer zone burdened "more speech than necessary to serve a relevant government interest." However, by a 6–3 vote, the Court upheld a provision creating a 15-foot "fixed" buffer zone outside of abortion clinic doorways, driveways, and parking lots.

Three years later, the Court issued a more detailed decision involving restrictions on abortion protests. In Hill v. Colorado, 530 U.S. 703, 120 S.Ct. 2480 (2000), the Court upheld by a 6–3 majority a Colorado statute that made it unlawful for any person within one hundred feet of the entrance to any abortion clinic (or other health facility) to knowingly approach within eight feet of another person without that person's consent, with the purpose of passing out a leaflet or handbill to, displaying a sign to, engaging in oral protest with, or counseling said individual. The Court reasoned that the states' interest in protecting the health and safety of its citizens justified a special focus on unimpeded access to health care facilities and the avoidance of potential trauma to patients that could result from confrontational protests. In addition, the statute did not violate the First Amendment because it protected listeners from unwanted communication, was content-neutral, and served as a valid TIME, PLACE, AND MANNER RESTRICTION.

Abortion rights supporters suffered a more serious setback with the Court's decision in

Protesters were arrested outside of a Buffalo, New York, abortion clinic during April 1992. In a 2003 ruling, the Supreme Court held that federal racketeering laws could not be used as the basis for criminal charges against pro-life protesters who demonstrate outside clinics.

Scheidler v. NOW & Operation Rescue v. NOW, 123 S.Ct. 1057 (U.S. 2003). By a vote of 8–1, the Court determined that federal RACKETEERING laws, such as RICO, could not be used as the basis for criminal charges against pro-life protestors who demonstrate outside abortion clinics. The Court further found that the federal Hobbs Act was not violated by protestors who had not obtained property, attempted to obtain property, or conspired to obtain property from the abortion clinics. The Hobbs Act expanded the common-law definition of EXTORTION to include acts by private individuals. 18 U.S.C.A. § 1951(b)(2). For purposes of the Hobbs Act requirement that property must be obtained for extortion to occur, word "obtain" means to gain possession of. The extortion provision of the Hobbs Act requires not only the deprivation, but also the acquisition, of property. Women seeking access to the abortion clinic had argued that their right to seek medical services from the clinics, the clinic doctors' rights to perform their jobs, and the clinics' rights to conduct their business—constituted "property" for purposes of the Hobbs Act, and those right had been "extorted" from them by abortion protestors.

The Supreme Court held that by interfering with, disrupting, and in some instances "shutting down" clinics that performed abortions, individual and corporate organizers of antiabortion protest network did not "obtain" or attempt to obtain property from women's rights organization or abortion clinics, and so did not commit "extortion" under the Hobbs Act, as required for organization and clinics to establish Racketeer Influenced and Corrupt Organizations Act (RICO) predicate offense; while organizers may have deprived or sought to deprive organization and clinics of their alleged property right of exclusive control of their business assets, they did not acquire any such property, nor did they pursue or receive something of value from organization or clinics that they could exercise, transfer, or sell. The Court also ruled that an injunction obtained against the abortions protesters litigating this case on the basis of RICO was invalid.

The debate and litigation surrounding the issue of anti-abortion protests show little sign of waning, with pro-choice advocates attempting to limit protesters' efforts to demonstrate at abortion clinics, and anti-abortion protest groups challenging the laws regulating their activities, on the grounds that such laws abridge freedom of speech.

Additional topics

Law Library - American Law and Legal InformationFree Legal Encyclopedia: "But for" Rule to Additional InstructionsAbortion - History, Three Sides To The Abortion Debate, Roe V. Wade And Doe V. Bolton