APENDING Supreme Court decision on a lower court's order that requires pro-life demonstrators to remain 15 feet away from women entering and leaving abortion clinics is huge: It could shape the future of protests and sidewalk counseling at facilities around the country, say pro-life activists.
The case, Schenck v. Pro-Choice Network, will determine how much latitude a judge has in protecting women and clinic staff from protesters whose actions are normally covered under the First Amendment.
While pro-life protesters are anxious about the impending Supreme Court decision, a federal judge's ruling in New York in another case has raised the possibility that the 1994 federal Freedom of Access to Clinic Entrances Act might not bar all religious protests at abortion clinics.
In that case, Lynch v. United States, U.S. District Judge John Sprizzo of New York acquitted a retired bishop and a Franciscan friar of criminal contempt Nov. 15. They were arrested during a peaceful protest at a New York abortion clinic in violation of a permanent injunction Sprizzo had handed down earlier, which had ordered them not to violate the 1994 federal Freedom of Access to Clinic Entrances Act.
Retired Bishop George Lynch of Raleigh, N.C., and Brother Fidelis Moscinski of the Franciscan Friars of the Renewal, admitted that on Aug. 24, they sat in the Dobbs Ferry Clinic driveway in New York and prayed, hoping to persuade women coming to the facility for abortions to reconsider.
A. Lawrence Washburn, an attorney working on the case with the Legal Center for Defense of Life, said the Sprizzo ruling could protect pro-life protesters who claim that their religious convictions drive them to protest outside abortion clinics.
Bishop Lynch and Brother Moscinski are now appealing Sprizzo's original injunction to a circuit court of appeals, requesting that it be overturned on the basis of natural law principles. On Dec. 3, a three-judge panel on the U.S. Court of Appeals for the Second Circuit in New York heard oral arguments in the Lynch v. United States case. “The judges showed great interest in the Natural Law argument,” said Larry Washburn of the Legal Center for the Defense of Life in New York, one of the defendant's attorneys.
According to Washburn, Judge Guido Calabresi, former dean of the Yale University Law School, asked the most questions during oral arguments. “If you look at his life story, there's reason to believe that an appeal to conscience would interest him,” said the lawyer. “His parents had to flee Italy to escape Mussolini's regime, and they later left Spain to escape Franco because they were anti-fascist.”
Washburn expects the appeals court to announce a decision between late December and early March.
Meanwhile, the impact of the Supreme Court's decision on individual clinics will depend on each property's regulations, said Walter Weber, an attorney with the American Center for Law and Justice in Washington, which represents pro-life defendants in civil liberties cases.
Mike Petrozelli, who has been active as a sidewalk counselor outside an abortion facility in Kensington, Md. since 1989, said the Supreme Court ruling won't affect him. “In most cases, I'm 15-feet away from the patients when they get out of their cars,” he said, adding that he's not allowed to step into the parking lot serving the office building that houses the facility.
“The escorts usually lead them away from me, but I can project my voice,” to let them know about birthing and care programs, as well as free hospitalization offered by the Archdiocese of Washington.Petrozelli, a 47-year-old Catholic from Hyattsville, Md., claimed that “the success we've had has been with people who wanted to talk with me and wanted help. They were upset about their decision and wanted us to talk them out of it.”
Being aggressive or shouting at the clinic would be counter productive, said Petrozelli, because patients usually react defensively to male pro-lifers who appear to harass them. “The more conciliatory you are, the more effective you are,” he said. Part of the protesters'success seems to come from two dozen or so people—mostly older Catholic men—who come to pray the Rosary outside the facility each Saturday morning, one of the times when the center performs abortions.
At the Supreme Court hearing in October, an attorney representing the Pro-Choice Network of Western New York, the plaintiff, hammered away at the need for a quiet atmosphere at facilities for patients who are suffering emotional distress. Lucinda Finley referred to persistent “crowding and grabbing” that had occurred in the early 1990s at protests outside the facilities; she also stressed the government interest in protecting women's access to health care as enunciated by the high court in a 1994 ruling.
The justices didn't appear to be swayed by her arguments. They grilled abortion-rights advocates about First Amendment issues that would protect pro-lifers. When Solicitor General Walter Dellinger, speaking in support of abortion facilities on behalf of the Clinton administration, asked, “What's a trial judge supposed to do?” to protect patients and employees from overzealous pro-lifers, Justice Anthony Kennedy replied sharply: “One of the things he's supposed to do is read the First Amendment.”
Eve Paul, general counsel for the Planned Parenthood Federation of America in New York, told the Register, after the Supreme Court hearing, that “our problem is not with the people who peacefully demonstrate at the clinics, but with those who shove, harass and use bullhorns” to intimidate patients. Planned Parenthood operates nearly 1,000 clinics that perform abortions and filed a friend of the court brief in the Schenck case.
“When a woman is trying to get into a clinic, she's entitled to a certain amount of respect,” said Paul, who added that some women come for other services as well, such as contraceptives or help after a miscarriage. She said that “we haven't found any other way of providing protection for our clients,” other than providing a 15-foot buffer zone around them as they come and go from the facilities. In 1994, the Supreme Court upheld a 36-foot buffer zone around an abortion clinic in Melbourne, Fla. The Schenck case defines protected zones differently; they can now include people as well as buildings.
Pro-life advocates emphasize the high stakes of the Schenck case. “It will tell you which direction the Court is going to go,” said Joe Scheidler, director of the Pro-Life Action League in Chicago. But Scheidler, who authored a book that describes 101 non-violent ways of closing an abortion facility, said no matter what the Supreme Court decides, pro-life protests will not cease. “As long as we're alive, and they're killing, we'll find a way to protest,” he said.
Nonetheless “if that right's taken away (by the Court), we're all in trouble,” said Scheidler, who's named in a federal racketeering case brought by the National Organization for Women (NOW) in Chicago, which is scheduled for a March 3, 1997 hearing. NOWis charging that Scheidler and other prominent pro-life leaders including former Operation Rescue leader Randall Terry knew of and encouraged plans to blow up abortion clinics and kill employees at the facilities.
The Supreme Court is expected to rule on the Schenck case by June of next year. Weber said the court will probably strike down at least part of the Schenck injunction. “The purpose of the First Amendment is to protect speech that's not popular. Speech that is popular doesn't need protection,” he said.
Meanwhile, one expert observer said that the Supreme Court is “dancing around the edges of the abortion issue,” without ruling on its legality. Mark Chopko, general counsel for the United States Catholic Conference in Washington, D.C., said that local judges and state legislatures need to pass strong regulatory measures that challenge assumptions that abortion is good for society and for women. That is the way to force the Supreme Court's hand on the issue, he said.
William Murray is based in Kensington, Md.