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Legal protection of access to abortion

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Legal protection of access to abortion

Governments around the world sometimes take measures designed to afford legal protection of access to abortion. Such legislation often seeks to guard facilities which provide induced abortion against obstruction, vandalism, picketing, and other actions, or to protect patients and employees of such facilities from threats and harassment.

Another form such legislation sometimes takes is in the creation of a perimeter around a facility, known variously as a "buffer zone", "bubble zone", or "access zone". This area is intended to limit how close to these facilities demonstration by those who oppose 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 or cars. [1]

Laws in Australia

Currently, there is no buffer zone legislation in Australia, but in 2005, the Australian Democrats proposed a law to create buffer zones around clinics in Victoria state. [2]

Laws in Canada

One country in which "buffer zone" laws have been enacted is Canada. One of the country's provinces and territories has passed a law intended to protect medical facilities that provide induced abortion:

  • 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. The Access to Abortion Services Act, enacted in 1995, refers to this area as an "access zone". It prohibits protesting, 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 The provisions against protesting and sidewalk counselling were repealed on January 23, 1996, as violating the Canadian Charter, but were both restored in October of the same year.

Access zone legislation has also been passed at the level of local government in Canada:

  • Calgary, Alberta: fixed buffer zone which requires protesters to remain across the street from a clinic in Kensington. Established in 1991, the injunction also limits the number of pro-life demonstrators who carry signs, or pray. It was first challenged by Michael O'Malley of Campaign Life Coalition in 1997, and again in 2000, but a judge upheld it both times. [3] [4] [5]
  • Toronto, Ontario: 500 feet fixed buffer zone around doctors' homes, 25 feet fixed buffer zone around doctors' offices, 60 feet fixed buffer zone around two clinics in the Cabbagetown and Scott districts, 30 feet fixed buffer zone around another clinic, and 10 foot floating buffer zone around patients and staff. The injunction was granted on August 30, 1994. [6]

Laws in the United States

At the federal level in the United States, the Freedom 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 provides reproductive healthcare or a place of worship. The law also creates specific penalties for destroying, or causing damage to, either of these types of building.

California, New York, and Washington have each established their own version of FACE. [7] Other states have instituted several different kinds of measures designed to protect clinics, their employees, and patients: [8]

In the February 2003 case, Scheidler v. National Organization for Women, the Supreme Court of the United States ruled that pro-life activists could not be prosecuted under the Racketeer Influenced and Corrupt Organizations Act (RICO), a law drafted to counter organized crime, or the Hobbs Act, a law intended to address economic damages caused by extortion. [9] The Court reaffirmed this holding on February 28, 2006 in a unanimous decision, although only 8 Justices participated in the ruling, because Samuel Alito had not yet been confirmed.

"Buffer zone" laws

In the United States, three U.S. states have passed "buffer zone" legislation, which can create either a "fixed" area around a medical facility or a "floating" area around patients and staff: [7] [8]

  • Colorado: 100 feet fixed and eight feet floating. After being enacted in 1993, the "floating" provision was first challenged in 1995, when three pro-life activists suggested that it violated their right to freedom of speech. Although upheld in a trial court and by the state's appeals court, the Supreme Court of Colorado would not hear the case, so the petitioners took their case against Colorado's floating buffer law went to the Supreme Court of the United States. In February 1997, considering its ruling against a floating buffer zone in the case Schenck 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, finally, in February 1999, the Supreme Court of Colorado agreed with the holdings of the lower court. In the 2000 case Hill v. Colorado, the "floating" provision was again appealed before the federal Supreme Court, where it was upheld 6-3. [9]
  • Massachusetts: 18 feet fixed buffer zone and six feet floating buffer zone. Enacted on November 10, 2000, the 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 pro-life protesters but exempted from clinic workers. [10] The law was restored in August 2001 by a federal appeals court. [11]
  • Montana: 36 feet fixed buffer zone and eight feet floating buffer zone.

Several local governments in the United State have, at some time, also passed similar municipal ordinances:

  • Buffalo and Rochester, New York: 15 feet fixed and 15 feet floating around four clinics in two cities. The buffer zone resulted from an injunction issued by the U.S. destrict court in response to a federal lawsuit filed against 50 individuals and three pro-life organizations, including Operation Rescue, by three doctors and four clinics. The law was challenged in the 1997 case court case, Schenck v. Pro-Choice Network of Western New York, by pro-life activist Paul Schenck. The case came before the Supreme Court, where Justices, in considering Madsen 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. [9]
  • Melbourne, Florida: 36 feet fixed buffer zone around a clinic, 300 feet floating buffer zone around patients, and 300 feet 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 the Supreme Court of Florida but came before the federal Supreme Court in Madsen 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. [9] [12]
  • Pittsburgh, Pennsylvania: 15 feet fixed buffer zone and eight feet floating buffer zone. [7] The statute was approved by the Pittsburgh City Council in December 2005. [13]
  • Vallejo, California: fixed buffer zone which requires protesters to remain across the street from a clinic enacted in 1991. [14] After the Supreme Court of California upheld the injuction, the case was taken to the federal Supreme Court in October 1994, but was remanded to the state court due to the recent Madsen v. Women's Health Center decision. The California Supreme Court again upheld the buffer zone in July 1995. On March 17, 1997 the case reached the federal Supreme Court as Williams v. Planned Parenthood Shasta-Diablo, and Justices voted 6-3 to uphold the buffer zone. [15]
  • West Palm Beach, Florida: 20 feet buffer zone and noise ordinance approved in September 2005. [7] A U.S. District Judge Donald Middlebrooks found the law to be an infrigement of the right to free speech on April 11, 2006, and ordered that it be enjoined, but upheld the regulation against excessive noise. [16]

Debate

Supporters of such laws claim that these zones are necessary to ensure that women have access to abortion. They that a buffer zone helps to prevent blockading 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 of pro-life activists. [1]

Those who oppose the creation of such legislation contend that "bubble zones", by limiting the ability to protest peacefully, represent an infringement upon their rights to freedom of expression and freedom of assembly. [9]

See also

References

  1. ^ a b Center for Reproductive Rights. (n.d.). Picketing and Harassment. Retrived December 14, 2006.
  2. ^ Heinrichs, Paul. (August 28, 2005). "Democrats push for clinic law." The Age. Retrieved December 17, 2006.
  3. ^ Childbirth by Choice Trust. (June 2006). Abortion in Canada Today: The Situation Province-by-Province. Retrieved December 13, 2006.
  4. ^ Mastromatteo, Mike. (July 2000). "Alberta judge adds to bubble-zone restrictions." The Interim. Retrieved December 17, 2006.
  5. ^ "Pro-life challenges Alberta Bubble Zone Law." LifeNews.com. Retrieved December 17, 2006.
  6. ^ Department of Canadian Heritage. Human Rights Program. (November 28, 2003). Ontario. Retrieved December 17, 2006.
  7. ^ a b c d National Abortion Federation. (2006). Freedom of Access to Clinic Entrances (FACE) Act. Retrieved December 13, 2006.
  8. ^ a b Guttmacher Institute. (December 1, 2006). Protecting Access to Clinics. State Policies in Brief. Retrieved December 15, 2006.
  9. ^ a b c d e Hudson, David L. Jr. (2006). Abortion protests & buffer zones. First Amendment Center. Retrieved December 13, 2006.
  10. ^ Gottlieb, Scott. (December 2, 2000). "Buffer zone" law for abortion clinics declared unconstitutional. British Medical Journal, 321 (1368). Retrieved December 14, 2006.
  11. ^ Pope, Justin. (August 13, 2001). "Massachusetts Abortion Buffer Zone Law Upheld." Associated Press. Retrieved December 14, 2006.
  12. ^ Planned Parenthood. (March 6, 2006). Major U.S. Supreme Court Rulings on Reproductive Health and Rights (1965-2006). Retrieved December 14, 2006.
  13. ^ National Abortion Federation. (January 23, 2006). Reproductive Choice in the States in 2005. Retrieved December 14, 2006.
  14. ^ Planned Parenthood Shasta-Diablo, Inc. v. Williams (1994) 7 C4th 860.
  15. ^ Supreme Court declines to hear California clinic injunction challenge. (March 21, 1997). Reproductive Freedom News, 6(5), 2. Retrieved December 14, 2006.
  16. ^ "Judge says West Palm Beach abortion law violates free speech." (April 18, 2006). ABC Action News. Retrieved December 14, 2006.
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