The New States of Abortion Politics

Joshua C. Wilson

• Publisher: Stanford Briefs
• Year: 2016
• ISBN:
  9781503600539
• Edition: 1
• Topic: Sozialwissenschaften
• Subtopic: Soziologie

The 2014 Supreme Court ruling on McCullen v. Coakley striking down a Massachusetts law regulating anti-abortion activism marked the reengagement of the Supreme Court in abortion politics. A throwback to the days of clinic-front protests, the decision seemed a means to reinvigorate the old street politics of abortion. The Court's ruling also highlights the success of a decades' long effort by anti-abortion activists to transform the very politics of abortion. The New States of Abortion Politics, written by leading scholar Joshua C. Wilson, tells the story of this movement, from streets to legislative halls to courtrooms.

With the end of clinic-front activism, lawyers and politicians took on the fight. Anti-abortion activists moved away from a doomed frontal assault on Roe v. Wade and adopted an incremental strategy—putting anti-abortion causes on the offensive in friendly state forums and placing reproductive rights advocates on the defense in the courts. The Supreme Court ruling on Whole Woman's Health v. Hellerstedt in 2016 makes the stakes for abortion politics higher than ever. This book elucidates how—and why.

PART I

VIOLENCE, LAW, AND ABORTION POLITICS

When John Salvi was identified as the lone shooter in a string of deadly attacks on three abortion clinics, a former associate of his told the press that he seemed like “just the kind of person who was ready to snap.” The New York Times went on to report that he was “a ‘weird’ loner who had piled his furniture in front of the windows to block his sea view,” that he was “very, very, very religious,” “obsessed with his vision of the Roman Catholic religion,” and that he “might be some kind of religious fanatic.” His coworkers at a Portsmouth, New Hampshire, hair salon also commented that he had become increasingly unstable around the time that his parents arrived from Florida for a holiday visit. The Friday before Christmas Salvi fought with a client, and he was sent home early. His boss planned to fire him when they next met, but Salvi never returned.¹

One week after the incident at the hair salon, on Friday, December 30, 1994, John Salvi walked into the Brookline, Massachusetts, Planned Parenthood clinic on Beacon Street and pulled a rifle out of his bag. He shot and killed Shannon Lowney, the 25-year-old receptionist, before generally opening fire on the office. Ten minutes later and two miles further down Beacon Street, Salvi walked into the Preterm Clinic, calmly asked where he was, and then proceeded as before—killing another receptionist, Lee Ann Nichols, and spraying the room with gunfire. Richard Sarone, a clinic security guard, moved to stop Salvi and was wounded in an exchange of gunfire. Salvi escaped but not before dropping a bag containing a pistol and a receipt from a gun shop.²

In a span of approximately 30 minutes Salvi had killed two people, wounded another five, and disappeared. The bag that he dropped in the altercation with the Preterm Clinic security guard, however, led investigators to discover that Salvi had bought one thousand hollow-tip bullets from a Massachusetts gun shop. In turn it was learned that he had purchased a Colt .22 pistol and a Sturm Ruger semiautomatic .22 caliber rifle—the latter he had customized with a folding stock and pistol grip—from a second gun shop in New Hampshire. This information ultimately brought the police to Salvi’s home around 2:00 on the morning of December 31. Although Salvi had purportedly returned there after attacking the two clinics, he was gone when the police arrived. By that time he was on the road heading south through the night.

A little before noon the next day Salvi walked past a small group of protesters at the Hillcrest Clinic in Norfolk, Virginia, and asked a clinic security guard for directions to a Burger King. Salvi then returned to his truck, removed his black duffel bag, pulled out his rifle, and opened fire on the clinic. While 50 to 60 people were reportedly in the clinic lobby, no one was injured in the attack. After shooting and shattering the glass in two of the clinic doors, Salvi got into his truck and drove off. This time, however, the police were quickly on the scene and gave chase. Three blocks from the clinic, Salvi threw his rifle from his truck and surrendered.³

Roughly one year and three months later, Salvi was found guilty of two counts of first-degree murder and five counts of armed assault with intent to kill. He received two consecutive life sentences and was taken to a maximum security prison in Massachusetts. On November 29, 1996, less than a year into his sentence, John Salvi was found dead in his cell with a garbage bag around his head. His death was pronounced a suicide.

While it was known that John Salvi had strong antiabortion views, federal investigators did not have reason to think he was involved with any popular antiabortion organizations. What’s more, antiabortion groups in Massachusetts were quick to distance themselves from Salvi and his use of violence. Mary McDonnell, president of the Hampton chapter of Massachusetts Citizens for Life—an early antiabortion organization and the largest in the state—was quoted the day after the shooting saying, “Anybody who professes to honor the sanctity of life and proceeds to kill people is not worthy of being called pro-life. . . . It’s the worst disservice they could possibly perform [to the movement] and I deplore it.” Bob Collins, also of Massachusetts Citizens for Life, commented that dramatic events like this are picked up in the media and add to the perception that all antiabortion activists are violent extremists. When an act like this occurs, Collins stated, “We try to defend ourselves right away because the ‘assault media,’ like assault rifles, immediately comes after us.”⁴

John Salvi’s “disservice” to the movement did not end with the moral stain and bad press. Salvi’s rampage also directly fueled a prolonged push to strengthen laws regulating antiabortion activism in Massachusetts. This regulatory effort was not unique to the Bay State. Legal force was being marshaled and deployed against antiabortion protestors nationwide during the 1980s and 1990s. The Massachusetts story, however, stands out since it led to reopening the constitutional debate surrounding such laws more than a decade after it was presumably settled in the United States Supreme Court.

Over the course of the 1980s and 1990s abortion clinics across the country experienced an ever-increasing amount of aggressive activism and violence. According to a 1995 Washington Post report following the Salvi shootings, since the early 1980s there had been “123 cases of arson and 37 bombings in 33 states, and more than 1,500 cases of stalking, assault, sabotage and burglary, according to records compiled by the Bureau of Alcohol, Tobacco and Firearms (ATF) and the clinics themselves.”⁵ Direct action protest tactics in front of clinics accompanied this rise in overt violence. Groups like Operation Rescue, formed in 1986, had a national scope and worked to popularize clinic blockades among other tactics as a highly visible form of antiabortion activism. Many local groups adopted these aggressive strategies while providing the means for activists to confront, interact with, or simply provide witness to people accessing clinics and other facilities that provided abortion services.

While the range of approaches was diverse and many antiabortion activists worked to distance themselves from those who committed overt acts of violence and criminality, the combination of activism and violence created a pervasive sense of danger that eroded the legitimacy of antiabortion activists. It is in this context that clinics, their supporters, and sympathetic government officials mounted a more vigorous response and antiabortion activists began to challenge the resulting regulatory means in court.

At the time of Salvi’s attacks Massachusetts already had a clinic access law. The federal Freedom of Access to Clinic Entrances (FACE) Act, signed into law in May 1994, also covered the Commonwealth. Together these laws prohibited clinic blockades and harassment and they reflected one strand of the legal means employed across the country to regulate antiabortion activism. The FACE Act specifically prohibits obstruction, injuries, and intimidation in front of clinics. Violations of the FACE Act may result in fines, imprisonment, or both.

The FACE Act had been subjected to constitutional challenges, which the Department of Justice’s Civil Rights Division successfully defended against.⁶ At the Supreme Court level, state and local laws that prohibited protesting at clinic staff members’ houses (Frisby v. Schultz, 1988) had also been upheld as constitutional. In the 1994 case of Madsen v. Women’s Health Center, Inc., the Supreme Court held that a Florida court injunction regulating antiabortion protesting overstepped its constitutional limitations in various ways, but still approved of the 36-foot no-entry buffer zone around the front of abortion clinics. In Schenck v. Pro-Choice Network of Western New York (1997) the Court struck down the idea of “floating” buffer zones that followed people trying to access clinic services, but it again upheld the fixed buffer zone concept—in this case there were 15-foot no-entry buffers—around clinic entrances and exits. All to say that by the mid-1990s antiabortion activism already had a significant history of being regulated through court-imposed and legislative actions that created various types of buffer zones. Given the Supreme Court cases dealing with laws and injunctions regulating antiabortion protesting, clinics, courts, and legislatures had relatively clear guidance regarding what was considered constitutionally acceptable.

Strong legal precedent, the recent memory of the Salvi murders, and Massachusetts’s liberal reputation should have provided a favorable environment for the state to create additional antiabortion protest regulations. This however was not the case. What instead followed demonstrates a number of things: the antiabortion movement’s power; the potential for antiabortion groups to have an effect in traditionally liberal states; a recent past in which abortion stances were not so tightly tied with political party affiliation; and the ways in which state and national abortion politics are bound together. It also clearly demonstrates how important political and legal professionals have come to be for abortion politics. The story of the rise and fall of Massachusetts’s pushes to additionally regulate antiabortion activism after the Salvi shootings covers almost two decades of near constant political and legal maneuvering, fighting, and reconfiguring in the state legislature and the federal courts. As will be shown, the conflict owes its long life to the creativity, dogged persistence, and increased resources of political and legal professionals who know and use all of the means available to them by their institutions.

On December 30, 1997—the third anniversary of the Brookline clinic attacks—Rep. Paul Demakis, Sen. Susan Fargo, and Rep. Ellen Story announced their sponsorship of a new abortion protest regulation bill. Their bill proposed creating 25-foot no-protest zones in front of all entrances, exits, and driveways of the state’s freestanding abortion clinics. If it were to become law, first-time offenders would be fined up to $1,000 and given prison sentences of up to six months. Repeat offenses would result in fines of $500 to $5,000 and prison sentences of up to two and a half years. In its specifics the proposed bill was an amalgamation of previously affirmed regulations.

The bill’s penalties were substantial but smaller than those in the FACE Act. The behavior covered, however, was broader. Whereas the FACE Act prohibited specific aggressive behaviors—such as employing force, physically obstructing, intentionally injuring, and intimidating people seeking to access clinics—the Massachusetts bill sought to prohibit antiabortion activists from simply entering a buffer zone in front of clinics. This preemptive style of regulation is seen in various court-created injunctions, and the 25-foot buffer zone proposed here was smaller than the one the Supreme Court upheld three years earlier in Madsen.

Considering that the bill combined aspects of previously upheld regulations and made them more modest, it seemed its supporters stood on solid constitutional ground were the law to be challenged after passage. Of more immediate concern, though, was passing the proposed law. The bill’s sponsors had worked for two years with labor unions, civil libertarians, police officials, a broad spectrum of legislators, and of course abortion clinics in order to ensure their support. While the Commonwealth’s American Civil Liberties Union chapter ultimately chose not to take a formal position on the 1997 bill, the chief sponsors’ listening and lobbying efforts paid off in bipartisan support. Among the bill’s cosponsors were legislators who consider themselves “not prochoice” and “anti-choice.” What’s more, the bill had the support of the Senate president, the Senate’s minority leader, Gov. Paul Cellucci, and the Attorney General.⁷ Combined with Massachusetts’s progressive reputation and the long list of precedents supporting antiabortion protest regulations both within the Commonwealth and across the country, one might assume the bill would quickly pass into law. Nothing could have been further from the truth.

The stalling and legislative maneuvering began almost immediately when the legislature returned from recess in January 1998. The bill’s opponents had three conditions working in their favor: the bill’s late submission date, the impending election year, and most importantly the support of the antiabortion Democratic Speaker of the House, Thomas Finneran. The Speaker signaled his resistance to the bill when he reportedly “told House members he would like to steer them as clear of controversy as possible during an election year, when incumbents running for re-election will have their stances on hot-button issues come under particular scrutiny by voters.”⁸ Although the Senate eventually passed the bill, Finneran, citing the election year, kept it from the House’s agenda.

The bill resurfaced in April 1999—six months after a radical antiabortion activist killed Dr. Bernard Slepian, an abortion provider in New York. Combined with the Salvi shootings, the 1999 bill’s supporters planned to stress its public safety aspects, as opposed to abortion politics, in front of the joint Criminal Justice Committee. As Rep. Story stated at the time, “I think it [the bill] is going to have difficulty getting to the floor for debate, unless he [Speaker Finneran] can be persuaded this is a public safety bill.”⁹

Antiabortion forces quickly mobilized to keep the bill from making it out of committee. Antiabortion activists filled the room when the Criminal Justice Committee met to hear public comments on the bill. Those gathered made it clear through their comments and the large stickers many of them wore that they believed the proposed bill amounted to an attack on their right to free speech. As Patricia Doherty, a spokeswoman for Massachusetts Citizens for Life, argued in her statement before the committee, “This is purely and simply an attempt to squelch the speech, assembly and prayer of abortion opponents at abortion clinics.”¹⁰ After the spirited hearing, the matter was left open until a planned vote on June 21. In the intervening two months the competing sides made their arguments through public demonstrations and editorials in the state’s newspapers.

As the joint Criminal Justice Committee reconvened in late June, legislative watchers predicted a narrow victory for the bill’s supporters. What ensued, though, was what one abortion-rights activist observer referred to as “a slow train wreck.”¹¹ While legislative committee members fought over procedure, the Massachusetts Catholic Conference and other antiabortion groups were “working all the grassroots.”¹² Activists on both sides of the issue held rallies, marshaled letter and phone campaigns, and won support from various state newspaper editorial boards as the bill lay dormant.

Three and a half months after the committee vote to forward the bill to the Senate, the Senate voted to ask the Massachusetts Supreme Judicial Court (SJC) to issue an advisory opinion on the bill’s constitutionality—a request that federal courts are barred from responding to. Since the SJC typically takes three to four months to issue such opinions, the Senate would be spared from having to vote on the bill until sometime in the next year. True to the estimate, the SJC announced on January 26, 2000, that it believed the proposed bill was constitutional on its face. With the Massachusetts Supreme Judicial Court’s advisory opinion in hand, the Senate voted to approve the bill. This left five months to convince Speak...