Anti-Abortion Groups Sue for Right to “Counsel” Patients Entering Clinics

Two anti-abortion organizations — the Pro-Life Action League and the Live Pro-Life Group — filed suit against the City of Chicago this week, claiming that the “Bubble Zone Ordinance” enacted on October 7, 2009 violates their constitutional right to “counsel” patients approaching reproductive health care facilities.

In their suit filed on August 23, 2016, the plaintiffs cite both the US and Illinois Constitutions, claiming they “have suffered and are suffering irreparable injury to their constitutional rights” because they cannot approach patients inside an eight-foot “bubble” within 50 feet of an abortion clinic entrance.

“The Bubble Zone Ordinance … targets certain categories of speech; that is, passing a leaflet or handbill, displaying a sign, or engaging in oral protest, education, or counseling,” the complaint states. “It was enacted and is applied so as to restrict pro-life speech, but to permit unrestricted speech in favor of abortion or concerning topics and speakers not disfavored by the City.”

Bubble and buffer zones — which vary in size and specifics, such as whether protections are stationary (radiating from a fixed point) or encircle patients (moving with them as they approach clinics) — have not been enacted randomly to target groups that oppose abortion, as the suit against the City of Chicago purports. These laws and ordinances are a response to violence and threats of violence from opponents of abortion rights.

The Feminist Majority Foundation’s National Clinic Access Project surveys have tracked the targeting of abortion providers since the early 1990s. The most recent, released last year, found that 25 percent of clinics experience anti-abortion activity on a daily basis and 42.8 percent experience such activity weekly, while only 12 percent of clinics say they never experience anti-abortion activity. Additionally, 92 percent of abortion providers report that patients entering their facility have expressed safety concerns.

In 2014, the Supreme Court’s McCullen v Coakley decision struck down the state of Massachusetts’ buffer zone ordinance, which provided 35 feet of protection from health care facility entrances. Some reproductive rights advocates predicted that a wave of lawsuits challenging other buffer zone laws around the country would follow — but those lawsuits never materialized. A federal lawsuit was filed and withdrawn without comment in Englewood, New Jersey, early last year, challenging that city’s newly enacted buffer zone. The precedent set in Hill v. Colorado, which affirmed that state’s 100-foot protection area around clinic entrances in June 2000, continues to provide municipalities with legal grounds to maintain similarly crafted ordinances and laws. Chicago Law Department spokesman Bill McCaffrey told ABC News that the Chicago ordinance is “almost identical” to the Colorado law — “except that our buffer zone is half the size.” He vowed that “the city will vigorously defend against this suit.”

The Pro-Life Action League and Live Pro-Life Group are attempting to be the first plaintiffs since Eleanor McCullen to successfully challenge abortion clinic protections, citing the First and Fourteenth Amendment rights to free speech and due process to do so. The bulk of the complaint sidesteps the foundational claims of constitutional violations, instead outlining incidents of the Chicago ordinance being inconsistently enforced — something that clinic escorts and staff report to Truthout as well — and responding officers not knowing the “plain language” of the law. The plaintiffs cite specific officers and clinic escorts who provide a shield outside facilities for patients approaching and leaving, in an attempt to prove that the law is unnecessary and that the protesters are themselves in need of protection. Clinic escorts, meanwhile, reject the claims made by the plaintiffs.

Betsy Schaack has been volunteering as a clinic escort for more than five years in the Chicago area. She told Truthout that while some groups simply pray outside clinics, in a clear expression of First Amendment expression of religion and free speech, the Pro-Life Action League protesters in particular are “decidedly more aggressive in their attempts to stop patients.”

“Usually, these [Pro-Life Action League] protesters reach into car windows with their propaganda as patients are dropped off at the door of the Washington [Family Planning Associates] clinic,” Schaack said. “Since this is clearly within the eight-foot patient ‘safety net,’ there is no place this woman is free from protesters. If we ask a protester to move out of the eight-foot area, we are met with comments like ‘Shut up; we don’t have to listen to you,’ or they just yell their misguided sound bites louder — ‘Don’t let them kill your baby!’ ‘The abortion pill can be reversed!’ etc. I understand freedom of speech, but what the [Pro-Life Action League] engages in is harassment.”

The other group Schaack witnesses harassing patients regularly is the Christian Liberty Academy — a private school that’s a part of the other plaintiff in the suit, the Live Pro-Life Group. Their clearly labeled buses are stationed prominently outside the Washington clinic once a month on average as students are led in “sidewalk counseling” (the name that Pro-Life Action League founder Joe Scheidler gave to patient targeting when he wrote the book on the practice in 1985). Patients don’t typically recognize picketers as “counselors,” according to Schaack.

“Most times [after asking] to be left alone, the patient will continue to be terrorized until she gets into the clinic,” said Schaack. “In fact, last week as I was walking a patient from her car, her partner actually asked the picketer to ‘Stop speaking to the lady that way.’ It is very distracting and stressful for the patients and their friends and family to be subjected to this behavior.”

Schaack and her fellow escorts regularly rely on the bubble ordinance, calling police to enforce restrictions to the clinic entrance as well as to assist patients attempting to cross a very busy street from the public parking lot to the door. Clinic escorts serve as the community response to harassment and abortion clinic targeting, but can only legally and effectively do so much to protect patients. They provide a visible zone of support for patients approaching a picketed clinic and allow them relief from the stress of being stalked, shamed and shouted at.

Until abortion is seen as a public good and communities at large are aware of the harassment, galvanizing enough support for clinics to effectively expel picketers from their sidewalks without needing to call the police remains a significant challenge.

Schaack acknowledged the frustration many escorts and social justice groups feel right now.

“Unfortunately, calling the police is the only thing that gets the attention of the protesters,” she said. “We ask them numerous times politely to move out of the eight-foot buffer zone and we are met with comments like, ‘That’s not a law, that’s just something arbitrary,’ or, ‘We follow God’s law.'”

The response from law enforcement is inconsistent at the clinic, but a car is always sent to respond to the call. Once the officers leave, however, Schaack says the harassment often resumes.

Halfway across the country, the anti-abortion group A Hand of Hope Pregnancy Resource Center has used similar grounds — First and Fourteenth Amendment rights to free speech, religion and equal treatment under the law — to file a federal suit against the city of Raleigh, North Carolina, for denying their request to open a crisis pregnancy center (CPC) next door to the Preferred Women’s Health Center, which offers abortion as one of its services. CPCs are typically religiously run and masquerade as reproductive health facilities. They shame and lie to prospective and current patients about everything from the law surrounding abortion access to how far along they are to risk factors for terminating a pregnancy.

Opponents to the opening of this new CPC included those concerned about access to abortion care as well as those simply trying to prevent conflict that could come from the two businesses operating adjacently. As reported by local outlet The News & Observer, Tonya Baker Nelson, founder and executive director of Hand of Hope, said those concerns are unwarranted. “We do not protest and we will not allow people to protest on our property,” Nelson said. “And we don’t need to stand on the corner to try to get people to come see us.”

The presence of a CPC, however, might encourage an increase in harassment from anti-abortion protesters, even if those protesters don’t specifically come from Hand of Hope. Local clinic escorts tell Truthout that picketing is routine and aggressive in Raleigh, and an extensive national investigation by NARAL Pro-Choice America found that proximity to CPCs increases the likelihood that a full-spectrum reproductive health care facility’s patients will be harassed.

“Raleigh actually has three different CPCs that seem to have different protester followings,” Kelsea McLain, who is director of patient advocacy at A Woman’s Choice, Inc., told Truthout. “Birthchoice [a local crisis pregnancy center] also opened a [location] within walking distance of our clinic and routinely sends representatives to the public space in front of the clinic to try and nab our patients and bring them over to the crisis pregnancy center. We find their brochures shoved in our fence and mailbox constantly, never quite sure if annoyed patients or over zealous protesters placed them there.”

McLain said Raleigh does not have a buffer or bubble zone like Chicago’s, but would gladly welcome one to protect both clinic staff and patients.

“Our patients often say this quote, almost verbatim: ‘They have a right to be out there, but I have a right to not be harassed,'” said McLain, who added that she doesn’t feel safe accessing public areas around the building because in the past, picketers have surrounded her while trying to access the mailbox. The protesters also position themselves on either side of the public easement at the clinic’s driveway, waving patients away, standing in front of cars and trying to hand out fliers with anti-choice propaganda and false information.

“Our protesters specialize in something we call ‘the swarm,'” said McLain. “Four or more protesters will all descend on an individual patient or couple, surround them with graphic signs, and begin rapid-fire quoting Bible verses and sharing condemnation. These swarms have a great track record of terrifying patients and sometimes will result in patients running back to their cars and leaving the area, missing their appointment.”

McLain says a buffer or bubble zone would “give patients breathing room” and make accessing the parking lot safer.

A long-time Chicago-area clinic escort agreed with McLain’s assessment that bubble and/or buffer zones — while imperfect in their ability to guarantee an end to harassment — provide significant protection and relief to patients and staff. Speaking anonymously due to security concerns, the escort told Truthout what it was like before Chicago enacted the ordinance being challenged.

“Before the bubble zone, anti-choice protesters could get as close to patients and the clinic door as they wanted,” she said. “They couldn’t block the door because of the FACE Act, however, when large groups of people congregate in front of a place, blocking happens indirectly. The outside of our clinics looked like a mob scene when there were large groups of protesters — even with small groups.”

The Freedom of Access to Clinic Entrances (FACE) Act was passed by Congress and signed into law by President Clinton in May of 1994 in response to more than a decade of violence such as arson and the assassination of abortion providers. As reported in a Religion Dispatches article by Alana Massey, the Pro-Life Action League in particular has been active in the violence that led to the FACE Act and nationwide recognition that abortion clinics had become battlegrounds.

According to Massey’s report, “In 1985, following a year during which there were 10 bombings and 16 cases of arson, the senior Scheidler famously called for ‘a year of pain and fear.’ For over a decade he was a named defendant in the high-profile case, Scheidler v. NOW, in which the National Organization for Women argued that Scheidler and others effectively formed a criminal conspiracy to close clinics that provided abortion services.”

The Chicago-area escort who spoke with Truthout was volunteering in the days where picketers chained themselves to doorways and took other extreme measures.

“It was very stressful with protesters shouting and having large signs right by our entrances,” she said. “The bubble zone allows an eight-foot bubble of protection within 50 feet of the clinic entrance; this small bubble — especially by the door — has made a world of difference.”

She points out that eight feet is certainly close enough for picketers to communicate with patients, despite the suit’s claim that things like “ambient noise” prevent them from doing so.

“I am grateful the bubble zone exists now,” she said. “While some protesters just come and pray and not say or bother anyone, the folks who yell hurtful things and shame patients are not counseling, in my opinion.”