Buffer-Zone Case Tests Free Speech

Judy Madsen’s troubles began when she allowed her name and phone number to be placed on a pro-life brochure as a contact person for a rally at her church in suburban Orlando, Florida.

By doing so, the 58-year-old volunteer sidewalk counselor became identified—at least in the eyes of state judge Robert McGregor—as a threat to the Aware Women’s Clinic for Choice in Melbourne, 75 miles away. Managers of the facility had sued Operation Rescue (OR) in 1991 to prevent its members from bothering clients and employees. Although not affiliated with OR, Madsen had been identified as a pro-lifer, and that meant, according to McGregor, she might act “in concert” with other pro-lifers. A permanent injunction ordered by McGregor last year created a 36-foot “buffer zone” around the abortion facility that OR and six individuals, including Madsen, could not enter. No pro-lifer could cross a red line painted around the area or make any “sounds or images observable to or within earshot of the patients inside.” In addition, a 300-foot zone around the building—and the homes of employees or abortion-rights “agents”—permits pro-life speech only if listeners show an interest in hearing it.

“This is McCarthyism of the nineties, where speech is censored before it can be spoken, where peaceful protests must first be permitted by those of the opposing viewpoint,” Mathew Staver, president of Liberty Counsel, a religious-liberties organization in Orlando, told CHRIST IANITY TODAY. “In public areas, the Constituion does not require that pro-life demonstrators receive permission to speak from those with the pro-choice viewpoint.”

Staver, 37, defended Madsen, Ed Martin, and Shirley Hobbs before the U.S. Supreme Court on April 28 in Madsen v. Women’s Health Center. Staver argued that the injunction jeopardized their attempts at sidewalk counseling.

“The injunction presents an immediate challenge to any pro-lifer trying to speak outside an abortion clinic,” Madsen said. Conflicting rulings were issued last October by the Eleventh Circuit Court of Appeals and the Florida Supreme Court regarding whether the pro-lifers’ First Amendment rights had been violated. Subsequently, the injunction has not been enforced.

Florida State University president Talbot D’Alemberte defended the abortion facility. In oral arguments before the U.S Supreme Court, D’Alemberte claimed anti-abortion protesters had created “chaotic conditions” by blocking access to the facility. He also said abortions became more dangerous during demonstrations because women undergoing the procedure required additional sedatives. He likened the business to a hospital zone, where silence is expected.

Justice Antonin Scalia acerbically asked D’Alemberte if the court should prohibit free speech if it affects a person’s vital signs. “If I have a heart condition, can I carry a sign on me which says, ‘Heart condition. Do not upset me’?”

D’Alemberte admitted the ruling could have a chilling affect on free speech and conceded no unlawful acts had been committed in the buffer zone.

Solicitor General Drew Days III represented the Clinton administration and defended the injunction, saying if women cannot reach the clinic, it “would cause them irreparable harm.”

A decision from the high court is expected within two weeks. Staver is encouraged because several justices expressed reservations about the legality of targeting a specific type of free speech. This buffer-zone case will set a precedent for nearly three dozen conflicting city and state regulations. Staver says, “This case will have nationwide implications.”

Directive Condemned

Eleven evangelical leaders sent an open letter to President Clinton on April 22, urging him to rescind a State Department directive that makes the United States “an exporter of violence and death.”

In March, the State Department—calling access to legal abortion a “fundamental right of all women”—cabled all diplomatic and consular posts to pressure foreign governments attending the United Nations International Conference on Population and Development (see “Christians Sidelined in UN Debate,” p. 60) to support the expansion of abortion worldwide.

“Mr. President, this is an unprecedented misuse of our diplomatic ends,” the leaders said in the letter. “We can think of no other time in history when American embassies were used to promote a domestic social agenda.”

The signers also questioned the medical safety of abortion in some Third World countries, saying the procedure could result in massive infections and death. “Surely the United Nations’ plan to slow population growth does not include mothers dying on unsafe operating tables.”

Those signing the letter included Prison Fellowship chairman Charles Colson, Focus on the Family president James Dobson, National Association of Evangelicals executive director Billy Melvin, National Religious Broadcasters president Brandt Gustavson, and Campus Crusade for Christ president Bill Bright.

FACE BECOMES LAW

Madsen also could have an impact on the Freedom of Access to Clinic Entrances Act (FACE). The U.S. House approved the final compromise FACE version 341 to 174 and the U.S. Senate 69 to 30 in May after the bill passed both chambers last year (CT, Jan. 10, 1994, p. 55). FACE makes it a federal crime “to use or attempt to use force, threats, or physical obstruction to injure or interfere with anyone providing or receiving abortions.” The law provides for a maximum $25, 000 fine and 18-month prison sentence for a protester who blocks entrance to an abortion facility.

But many pro-lifers believe it is the judicial system that has run amok, with activist judges trying to silence anti-abortion protesters by leveling enormous punitive damages.

In another buffer-zone case, the U.S. Supreme Court last month let stand more than $3.5 million in punitive damages against 30 pro-lifers who protested at a Portland, Oregon, abortion facility in 1991.

Andrew Burnett, 39, publisher of Life Advocate in Portland, says the new strategy of abortion-rights groups is to try to silence protesters by bankrupting them. However, Burnett, who has been ordered to pay $500, 000, says most of the defendants—primarily homemakers—are “judgment-proof.”

“We are forced to live frugally and not own any personal property,” says Burnett. “Most people didn’t have anything to speak of to begin with.” Burnett continues to publish his monthly anti-abortion magazine with leased computers and printing equipment. He and the organization pay bills through money orders and have no bank account because the assets could be garnisheed.

By John W. Kennedy.

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