In Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994), the Supreme Court addressed the conflict between the First Amendment rights of anti-abortion protestors and women’s constitutional right to abortions. The court reversed an injunction in part and affirmed it in part, finding that the buffer zone on a public street excluding abortion protestors was constitutional, but several other provisions were not.

Protestors were ordered not to trespass on abortion clinic property

The case arose out of demonstrations against the Aware Woman Center for Choice in Melbourne, Florida. Protestors blocked doors and marched on the street, using bullhorns to spread their message. They approached patients to try to convince them not to get an abortion and followed staff to their homes to demonstrate their opposition to abortion.

Responding to the Center’s suit against the protestors, in September 1992 a state court judge ordered the protestors not to trespass on Center property, block its entrances, or physically abuse anyone entering or leaving the clinic. The judge specifically noted that the order was not intended to limit protestors from exercising their First Amendment rights.

Court created a buffer zone around clinic, patients, staff homes

About six months later, after the protestors violated the court order, the court created a 36-foot buffer zone around the clinic entrances and driveways (including the public sidewalk) within which all anti-abortion speech was banned. It also prohibited excessive noise and images that patients could see or hear during surgery and recovery. Additionally, the court created a 300-foot zone that barred protestors from approaching patients without their consent and a 300-foot barrier for demonstrations and picketing at the homes of clinic staff.

The Florida Supreme Court unanimously upheld the order, declaring that the protestors’ activities conflicted with the state’s concern for public safety and women’s right to abortion.

When the case reached the U.S. Supreme Court, it focused on the constitutionality of the 36-foot buffer zone, with the protestors claiming the state court order violated the First Amendment. Opponents argued that the court order targeted anti-abortion expression because abortion-rights demonstrators were allowed in the buffer zone. The Center contended that the order promoted a variety of interests including public safety, properly regulated the manner of the protest, and was unrelated to opinions on abortion.

Supreme Court upheld some buffer zones, struck down others

The Court’s 6-3 ruling, announced by Chief Justice William H. Rehnquist, held that the injunction was content neutral and applied to all persons engaged in clinic protests, regardless of their message. The court asked whether the burden imposed by the order was greater than that required to further an important government end. Applying this standard, it upheld the 36-foot buffer zone around the clinic entrances and driveway to preserve access to and from the clinic and to allow street traffic. It also allowed the noise restrictions.

The court also found, however, that the restrictions imposed on private property at the back and side of the clinic and those forbidding protestors to show images to clients were unjustified because they imposed a greater burden on speech than was necessary. Similarly, the 300-feet zone around the clinic and at staff residences was too broad to allow the protestors to express their views peacefully and burdened their speech beyond the permissible limits of the government’s interest in ensuring access to the clinic and preventing intimidation of the patients and staff.

The Court’s decision in Madsen did not end First Amendment challenges to court injunctions or state laws limiting anti-abortion protestors. The court later decided Schenck v. Pro-Choice Network of Western New York (1997) and Hill v. Colorado (2000).

This article was originally published in 2009. Susan Gluck Mezey is a professor emeritus of political science at Loyola University Chicago; she holds an M.A. and Ph.D. from Syracuse University and a J.D. from DePaul University. She has published in the area of minority group policies and the federal courts. Her recent books include: Transgender Rights: From Obama to Trump (2020); Beyond Marriage: Continuing Battles for LGBT Rights (2017); Elusive Equality: Women’s Rights, Public Policy, and the Law, 2d Ed. (2011); Gay Families and the Courts: The Quest for Equal Rights (2009); Queers in Court: Gay Rights Law and Public Policy (2007); and Disabling Interpretations: Judicial Implementation of the Americans with Disabilities Act (2005).

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