Governments sometimes take measures designed to affordlegal protection of access to abortion. Such legislation often seeks to guardfacilities which provide inducedabortion againstobstruction,vandalism,picketing, and other actions, or to protect patients and employees of such facilities from threats andharassment (seesidewalk interference).
Another form such legislation sometimes takes is in the creation of aperimeter around an abortion facility, known variously as a "safe access zone", "access zone", "buffer zone" or "bubble zone". This area is intended to limit how close to these facilities demonstration by those whooppose abortion can approach. Protests and other displays are restricted to a certain distance from the building, which varies depending upon the law, or are prohibited altogether. Similar zones have also been created to protect the homes of abortion providers and clinic staff.
Bubble zone laws are divided into "fixed" and "floating" categories. Fixed bubble zone laws apply to the static area around the facility itself, and floating laws to objects in transit, such as people orcars.[1]
Several "buffer zone" laws have been enacted within Australia. Allstates and territories have passed laws intended to protect medical facilities that provide induced abortion:
Tasmania: Tasmania was the first state or territory to enforce buffer zones. In 2013, the Tasmanian Parliament passed theReproductive Health (Access to Terminations) Act 2013 which enforces 'access zones' of a radius of 150 metres from premises at which abortions are provided.[2] Behaviour prohibited within access zones includes: besetting, harassing, intimidating, interfering with, threatening, hindering, obstructing or impeding a person; protests in relation to terminations that are able to be seen or heard by a person accessing a clinic; footpath interference; and intentionally recording a person accessing a clinic without their consent.[2] The laws, in particular, the recent regulations passed by the NSW parliament in June 2018, were opposed by "sidewalk counsellors" who are "known to stand outside clinics with the intention of changing the minds of women entering the clinics".[3]
Several "buffer zone" laws have been enacted within Canada. At least three of the country'sprovinces and territories have passed laws intended to protect medical facilities that provide induced abortion:
Alberta: 50-metre fixed buffer zone around abortion clinics under theProtecting Choice for Women Accessing Health Care Act.[16] Under the act, doctors and other service providers are able to apply for buffer zones of 160 metres around their homes and a buffer zone of up to 20 metres around their offices.[16]
British Columbia: 10-metre fixed buffer zone around a doctor's office, 50-metre fixed buffer zone around a hospital or clinic, and 160-metre fixed buffer zone around an abortion provider or clinic worker's home. TheAccess to Abortion Services Act, enacted in 1995, refers to this area as an "access zone". It prohibitsprotesting,sidewalk counseling,intimidation of or physical interference with abortion providers or their patients inside of this space. The provisions against protesting and sidewalk counselling were repealed on January 23, 1996, as violating theCharter of Rights and Freedoms, but were both restored in October of the same year.
Ontario: 50-metre fixed buffer zone around clinics that perform abortions; variable buffer zones of up to 150 metres granted upon application to hospitals, pharmacies and other health facilities.[17] TheSafe Access to Abortion Services Act, 2017 prohibitsprotesting,sidewalk counseling,intimidation, physical interference, and recording or photographing patients and employees within buffer zones.[18]
Quebec: 50-metre fixed buffer zone around any clinic, hospital or drugstore that perform abortions. It prohibits interfering with the operations of the abortion provider, sidewalk counselling and intimidation underBill 92 in 2016.[19][20]
Access zone legislation has also been passed at the level oflocal government in Canada:
Calgary, Alberta: fixed buffer zone which requires protesters to remain across the street from a clinic inKensington. Established in 1991, the injunction also limits the number of anti-abortion demonstrators who carry signs, orpray. It was first challenged by Michael O'Malley ofCampaign Life Coalition in 1997, and again in 2000, but a judge upheld it both times.[24][25]
Toronto, Ontario: 500-feet fixed buffer zone around doctors' homes, 25 feet (7.6 m) fixed buffer zone around doctors' offices, 60 feet (18 m) fixed buffer zone around two clinics in theCabbagetown and Scott districts, 30 feet (9.1 m) fixed buffer zone around another clinic, and 10-foot (3.0 m) floating buffer zone around patients and staff. The injunction was granted on August 30, 1994.[26]
In South Africa, theChoice on Termination of Pregnancy Act, 1996 prohibits anyone from "preventing the lawful termination of a pregnancy" or "obstructing access to a facility for the termination of a pregnancy", imposing a penalty of up to ten years' imprisonment.[30]
At thefederal level in the United States, theFreedom of Access to Clinic Entrances Act (FACE), makes it an offense to use intimidation or physical force – such as forming a blockade – in order to prevent a person from entering a facility which providesreproductive healthcare or aplace of worship. The law also creates specific penalties for destroying, or causing damage to, either of these types of building.
California,New York, andWashington have each established their own version of FACE.[32] Otherstates have instituted several different kinds of measures designed to protect clinics, their employees, and patients:[33]
Six states prohibit making threats toward a clinic's staff or patients: California,Michigan, New York, North Carolina, Washington, andWisconsin. Two states, Maine and Washington, also ban harassment by telephone.
Four states banproperty damage to a clinic: California, Oregon, New York, and Washington.
One state, Maine, has enacted anoise regulation pertaining to activity outside of a clinic, and also made it an offense to intentionally release a substance with an unpleasantodor inside of it.
One state, North Carolina, prohibitsweapon possession during a demonstration outside of a clinic.
In the United States, threestates have passed "buffer zone" legislation, which can create either a "fixed" area around a medical facility or a "floating" area around patients and staff:[32][33]
Colorado: 100-feet fixed and eight-feet floating. After being enacted in 1993, the "floating" provision was first challenged in 1995, when three anti-abortion activists suggested that it violated their right tofreedom of speech. Although upheld in atrial court and by the state'sappeals court, theSupreme Court of Colorado would not hear the case, so the petitioners took their case against Colorado's floating buffer law to theSupreme Court of the United States. In February 1997, considering its ruling against a floating buffer zone in the caseSchenck v. Pro-Choice Network of Western New York, the Supreme Court requested that the appeals court of Colorado re-examine their state's law. It was upheld again, and in February 1999, the Supreme Court of Colorado agreed with the holdings of the lower court. In the 2000 caseHill v. Colorado, the "floating" provision was again appealed before the federal Supreme Court, where this time it was upheld, 6-3.[34]
Massachusetts: 35-feet fixed buffer zone enacted in 2007.[35] Massachusetts Attorney GeneralMartha Coakley’s Office defended the constitutionality of the statute in the federal court proceedings. In May 2007, Attorney General Coakley testified before the Legislature in support of the passage of the legislation.[36] The buffer zone law was signed by Governor Deval Patrick and took effect on November 13, 2007. Attorney General Coakley successfully defended the statute before the U.S. Court of Appeals for the First Circuit, whichaffirmed the constitutionality of the Commonwealth's buffer zone law on July 8, 2009. The 2007 law changed the 2000 law, which provided for an 18-feet fixed buffer zone and six feet floating buffer zone. Enacted on November 10, 2000, this law was struck down by U.S. district judge Edward Harrington soon afterward because he felt there was an unacceptable discrepancy in the floating buffer zone being applied to anti-abortion protesters but exempted from clinic workers.[37] The law was restored in August 2001 by a federal appeals court.[38] This law was struck down by the U.S. Supreme Court on June 26, 2014.[39]
Montana: 36 feet (11 m) fixed buffer zone and eight feet floating buffer zone.
Buffalo andRochester, New York: 15-feet fixed and 15 feet (4.6 m) floating around four clinics in two cities. The buffer zone resulted from aninjunction issued by theU.S. district court in response to a federallawsuit filed against 50 individuals and three anti-abortion organizations, includingOperation Rescue, by three doctors and four clinics. The law was challenged in the 1997 casecourt case,Schenck v. Pro-Choice Network of Western New York, by anti-abortion activistPaul Schenck. The case came before theSupreme Court, where Justices, in consideringMadsen v. Women’s Health Center, ruled 8-1 to uphold the constitutionality of the fixed buffer zone, but not that of a floating buffer zone.[34]
Melbourne, Florida: 36-feet fixed buffer zone around a clinic, 300 feet (91 m) floating buffer zone around patients, and 300 feet (91 m) buffer zone around the homes of the clinic's employees. The injunction also regulated noise levels outside of the clinic and prevented demonstrators from displaying images which could be seen from inside. It was upheld in full by theSupreme Court of Florida but came before the federal Supreme Court inMadsen v. Women’s Health Center in 1994. The Court upheld the fixed buffer zone, and the noise regulation around clinics and in residential areas, but rejected the floating buffer zone, residential buffer zone, and prohibition against displaying images.[34][40]
Pittsburgh, Pennsylvania: 15feet-fixed buffer zone and eight feet floating buffer zone.[32] The statute was approved by the Pittsburgh City Council in December 2005.[41] In 2009, a three judge appeals court panel found inBrown v. Pittsburgh that while either a fixed buffer or a floating buffer alone is constitutional, this combination of buffers is "insufficiently narrowly tailored," and thus unconstitutional.[42]
West Palm Beach, Florida: 20-feet buffer zone andnoise ordinance approved in September 2005.[32]U.S. District Judge Donald Middlebrooks found the law to be an infringement of the right to free speech on April 11, 2006, and ordered that it be enjoined, but upheld the regulation against excessive noise.[43]
Supporters of such laws claim that these zones are necessary to ensure that women have access to abortion. They argue that a buffer zone helps to preventblockading of a clinic's entrance, to protect the safety of patients and staff, and to ensure that clients do not feel intimidated, distressed, or harassed by the presence ofanti-abortion activists.[1]
Some traditional free speech advocates such as theBritish Columbia Civil Liberties Association have cautiously sided in favour of narrowly defined "bubble zones" around abortion clinics on the basis that patients have amedical right to privacy when receiving confidential legal medical procedures that is compromised if protesters identify patients for the purpose of publicly shaming or intimidating them.[45][46]
Some pro-choice activists have also argued that anyone convicted of anti-abortion violence should be permanently banned from protesting outside abortion clinics.[48] ProfessorJacob M. Appel of New York University has argued that "much as we do not permit convicted pedophiles to teach kindergarten or convicted hijackers to board airplanes, common sense dictates that individuals who have been imprisoned for plotting violence against abortion clinics should never again be permitted anywhere near such facilities.".[48]
