When the Supreme Court ruled in a rare unanimous decision that struck down the Massachusetts buffer zone ordinance that forced protesters to remain at least 35 feet from an abortion clinic’s door, the ruling itself didn’t officially end other buffer and bubble zones across the nation. Yet within the weeks following that decision, zones are beginning to crumple preemptively.
In many states and municipalities court challenges are being initiated against the zones, but in others the cities themselves have made the decision just to fend off potential lawsuits. That isn’t working, however, and the mass of litigation, even where it is unnecessary, and the threats of even more lawsuits in the face of new proposals makes it clear that with one victory behind them, anti-abortion activists intend to use their clout as a group to ensure no new protections are put in place.
The Massachusetts zone was dismissed in part because the Court decided that there was no proof that a less restrictive, more first amendment friendly remedy couldn’t have provided the same or at least adequate protection for patients entering the state’s clinics. Now, as a response, Massachusetts Governor Deval Patrick is working with the state attorney general to craft new legislation that could minimize some of the effects of the Supreme Court’s ruling. Massachusetts Citizens for Life, the state’s largest anti-abortion group, has warned them not to bother, however, as they will likely challenge any new restriction in court.
New Hampshire‘s buffer hasn’t gone into effect yet but has been challenged already, and Burlington, Vermont, and Madison, Wisconsin, have both stopped enforcing their own buffers. So has Portland, Maine, where the city council repealed their own zone. Still, those who were in the process of suing Portland over the buffer have decided they will continue the lawsuit, regardless. Their goal, they stated, is to be sure that the city admits that their rights were violated and to frighten them out of trying to pass any other type of similar restriction.
As a matter of personal space itself, Colorado or Chicago’s ”bubble zones” — the 8 foot imaginary barrier around a patient when she is near an abortion clinic entrance — may be able to withstand a lawsuit and remain intact, although police continue to testify to how difficult bubble zones are to enforce.
The onslaught of new buffer challenges, though, makes it clear that the goal isn’t merely to protect a first amendment right to protest clinics. It isn’t even securing the right to harass patients by making anything more restrictive than 8 feet unthinkable. The ulterior motive here is to intimidate by threat of a lawsuit and drawn out, expensive court cases, all state and city based legislatures out of creating any sort of zone around clinics or any other type of clinic protection.
When it comes to passing blatantly unconstitutional abortion restrictions such as bans on abortion at 20 weeks, six weeks or even conception, states across the country seldom let the threat of litigation deter them from making the bills law. Hundreds of thousands of dollars have been spent in states like Kansas, Mississippi, Wisconsin and North Dakota defending anti-abortion legislation in the courts. Yet just a whisper of a potential lawsuit has cowered many locations into rescinding their own buffers, and is meant to scare others out of considering their own bills.
The reason for both of these facts are the same. Religious Right legal teams that step forward to offer to represent the states that pass unconstitutional bills also represent the anti-abortion activists that challenge what few protections patients do receive when they try to access a clinic. By virtue of their endless legal battles, they essentially frighten challengers out of litigation with the threat of crippling legal costs.
In other words, the end of abortion access may just come about not via overturning Roe v. Wade, but at the hands of hundreds of expensive lawsuits.
With Massachusetts and Portland both being threatened with litigation, it’s obvious that the current plan is to strong arm the rest of the country into abandoning existing patient protection zones, and out of considering any new buffers. Without a massive army of pro bono legal entities on the side of the abortion rights supporters, that may even work.
If it does, that’s a strong and depressing message that once more, not just abortion rights but the court system itself is controlled by those with the most money to spend. Maybe that was exactly what the Supreme Court has been trying to tell us all along.