When the package sale of liquor was legalized in Oak Ridge in 1967, the number of establishments instantly available to accommodate the market for booze was phenomenal. It was well known that whisky was illegally available while the city was dry, both from bootleggers and from legally wet locations within an easy drive. But a legal store was more convenient, cheaper, offered more choices, and could be better regulated. There were, to be sure, opponents of alcohol who fought legalization. When defeated at the polls they did not bomb package stores nor scream at the patrons. Legalization equaled total availability.
The same cannot be said for abortion services. It should be recognized that abortion rights were not obtained in a free election by an informed electorate. They were imposed from above by the Supreme Court as the Constitutionally protected right of all women. The situation was thus more like Lincoln's emancipation of slaves: A pervasive injustice arbitrarily relieved by a distant authority, and not to universal acclaim.
In 1973 Roe v Wade struck down a vast network of antiabortion legislation. We know from polls that most Americans support that decision. But immediately after Roe v Wade we did not see departments of abortion set up in medical schools, nor wings dedicated to this discipline in the nation's hospitals. Years of calling abortions "illegal operations" had created a "dirty business" attitude about the procedure which mere legalization could not erase. It did not help that skilled obstetricians had shared the illegal practice of abortion with unsanitary, unskilled, and careless operators who had filled emergency rooms and morgues with the victims of their incompetence. Abortion had a bad name, and mainstream medicine was not about to make it part of its practice. In 1991-92 only 7% of American abortions took place in hospitals. It surprises me that the percentage was that high.
In this environment, the freestanding clinics came into existence. Less well known than Roe v Wade, Roe-Doe v Bolton was a companion decision which ruled out legislation requiring abortions to be done in hospitals. This decision opened the door to the independent abortion clinic. How available abortions are has thus come to depend on the availability of a freestanding clinic. We have heard the disturbing statistics on how thinly spread these clinics are. In 1985 82% of U.S. counties had no clinic. In South Dakota there is only one abortion doctor in the entire state. Of his patients, 36% come from at least 100 miles. Of these, half come from 300 miles or more. A state-mandated 24-hour waiting period between the first visit and the abortion works a real hardship on these women. A further threat to clinic accessibility comes from violence from antiabortion terrorists. In the first 7 months of 1996 almost 46% of abortion clinics experienced some form of violence, harassment, or intimidation. Death threats and stalking continued a decline begun in 1995, probably reflecting the Federal law on Freedom of Access to Clinic Entrance which President Clinton signed in 1994. Bombings, a more covert threat, were up, however, from 0.3% in 1995 to 2.6% in 1996. The incidence of clinics losing staff as a result of anti-abortion violence declined from 9% in 1995 to 3.9% in 1996. Clinics with good law enforcement support were less likely to lose staff. Moreover, clinics which reported "excellent" law enforcement response experienced lower levels of violence than those which rated law enforcement response as "poor". Clinics with legally decreed "buffer zones" reported far larger decreases in every type of violence than those without. Laws and their enforcement do make difference. (Lawsuits against Operation Rescue largely drove it out of business.)
With this as background, the February 19 Supreme Court decision on buffer zones takes on critical significance. The decision in question arose in Schenck v Pro-Choice Network of Western New York. Demonstrators at clinics in Rochester and Buffalo had blockaded the clinics and harassed staff and patients almost to the point of stopping operations...which was, of course, their objective. The clinics and their supporters sought and were granted injunctions creating 15 foot buffer zones around clinic and parking lot entrances, into which protesters were forbidden to come. Moreover, 15 foot floating buffer zones were established around patients and staff as they approached and left the clinics. The head of the harassers, a Reverend Schenck, appealed these protections, and the matter ended up at the Supreme Court. The Court upheld the fixed zones of tranquillity around the clinic entrances, but struck down the mobile protection for people coming to and from the clinics. Such floating zones, the Court said, "...burden more speech than is necessary to serve the relevant governmental interests." The Knoxville News-Sentinel carried the headline "Abortion Protesters Win". The "zygote rights" faction did win on the floating zones, but the remaining injunction is all most abortion clinics have, and it seems to be enough.
It should be noted that justices Scalia, Thomas, and Kennedy voted against any protection for the clinics and issued a lengthy minority report. They seem outraged that the protesters' "free speech" should be compromised by considerations of public safety. In truth, at a distance of 15 feet the protesters are still free to exercise their rights of free speech to picket, shout, chant, pray, and carry signs. The enforced separation only restricts their ability to grab, push, crowd, obstruct, assault, or spit, all of which had been the norm before the injunction.
So the News-Sentinel headline really was incomplete.
Last Modified October 26, 1997