Sidewalk protest: Right rules for persuasion

The U.S. Supreme Court this year will review a Colorado law that seeks to balance the right to privacy and the right to protest when the setting is the entrance to a health care facility.

Editorial. Jan. 24, 2000.

Inherent tension exists between one person's right to privacy and another's right to protest. The U.S. Supreme Court this year will decide the limits of each when exercised in a setting that for many people is inherently tense enough: the path leading to the door of a health care facility.

The AMA and the American College of Obstetricians and Gynecologists have joined together in a friend-of-the-court brief in support of a 1993 Colorado law that protects patients as they take those final steps. The appeal to the high court to overturn the law was brought by anti-abortion "sidewalk counselors," who have found allies among free-speech activists as well as other groups. (The citation for the appeal is Leila Jeanne Hill et al. v. The State of Colorado et al., and we reported this story in our Jan. 17 issue.)

The statute in question creates an eight-foot invisible barrier, often referred to as a "bubble," that travels along with anyone within a hundred feet of an entrance to a health care facility. Only with that individual's permission may another person approach to leaflet, display a sign or "engage in oral protest, education or counseling."

The arguments against the law have been drawn on obvious First Amendment lines: that it interferes with free speech and the right to protest. But those rights are not absolute, and this situation isn't so simple as opponents to the law suggest.

(Nor is this a case to reargue the right or wrong of abortion. The law itself does not single out abortion as a topic of protest. Further, even though abortion protest created the situations that lead to this law, no one can say what issues -- animal rights is one contender, and People for the Ethical Treatment of Animals has filed its own brief opposing the statute -- will prompt similar demonstrations in the future. As for the medical organizations involved, the AMA has taken a neutral stance on the abortion issue, while ACOG affirms "the legal right of a woman to obtain an abortion prior to fetal viability.")

As hearings leading up to the Colorado law demonstrated, the tactics described above can turn into a gauntlet of intimidation that can quickly escalate to shoving, punching and other violence directed at patients and clinic staffers. The close proximity makes it difficult for police to identify and arrest individuals who go too far. The setting makes all this a particular concern: Patients cannot simply walk away because the services they are seeking can only be obtained from professionals inside a health care facility.

Such protests can have a direct and negative bearing on the medical well-being of the patients involved. The ACOG-AMA brief cites studies reporting that the added stress caused by such in-your-face protesting can delay treatment, require more anesthesia and create other problems. Even those patients who go to a clinic not seeking an abortion -- far and away the majority of visits are for other reasons -- are bound to be affected. A woman may well put off a potentially life-saving Pap smear if it means facing down a threatening crowd of protesters.

The Colorado law acts to protect those patients while still allowing adequate First Amendment protection for the protesters. The State of Colorado, with the support of AMA and ACOG, argues that the statute meets requirements regarding time, place and manner that the high court has previously set for limits on protest. In light of those provisions, the arguments against it fall apart.

Because the barrier is only eight feet, protestors can be heard easily, their placards can be seen easily and any person wishing to obtain a leaflet or engage in conversation is free to summon the protestor or walk over to them. It's only about three paces.

As noted earlier, the law does not attempt to regulate the content of the speech itself, except for its focus on "oral protest, education or counseling," and applies only in this special setting. The law also serves a significant government interest, to ensure the public safe access to medical treatment. The high court has, in the past, recognized the need to pass unhindered to specific locations. For example, it has upheld fixed (as opposed to traveling) barriers at health care facilities, as well as bans on electioneering in front of polling places.

In short, the Colorado law upholds the right to persuade without turning it into a license to prevent. It should be upheld.