Buffer zones have long been a point of controversy

Recent articles portrayed buffer zones in Europe as an unusual infringement on free expression. They have a long history in America, though.

(Cartoon reprinted with permission from Joe Heller, the artist behind the drawing)

Buffer zones around abortion clinics have always been controversial, whether here or in Europe.

Recently, the Free Press, a Substack newsletter run by self-described conservative writer Bari Weiss, published an article about how free speech was threatened in Europe. The story focused on an elderly woman who was arrested for protesting within a clinic’s buffer zone in England. Vice President J.D. Vance initially drew attention to the woman’s situation in a speech decrying the loss of free expression in the Western world.

What articles in the Free Press and other antiabortion publications miss is the historical context for why buffer zones developed. Their work needs research into the origin of buffer zones, which could have been learned simply by searching archived newspapers on a repository like newspapers.com. Since abortion is my area of focus, I decided to look into it myself.

The first mention of buffer zones that I could find was in early 1985, in a story about Bill Baird establishing the Pro-Choice Defense League. Baird had been a longtime champion of reproductive rights who was controversial in both antiabortion and abortion rights circles.

I previously interviewed Bill for my forthcoming book. We discussed his early work and the landmark Supreme Court cases he was involved in that advanced birth control. Bill is 93 years old and was recently featured in an excellent documentary, Yours in Freedom, Bill Baird, which I wrote about last year.

Baird developed the idea from policies around hospitals that said no car honking. Those policies had been implemented because car horns could distract surgeons from performing their procedures competently.

“So I said, ‘If you can give a zone of privacy from car honking, why not a zone of privacy for people yelling, ‘Murder, killer, baby killer,’” Baird said. “That would even frighten a doctor more because they’ll hear that in the hospital also while he's doing surgery.”

Afterward, Baird visited other clinics and formed the league to push for buffer zones around clinics during an era in which they were constantly being attacked and bombed. Organizations like Lambs of Christ would stage protests in which adults would crawl on their hands and knees while women tried to enter the facilities. Police had to pick the women up and carry them through the crowd because the path was obstructed.

Buffer zones were subsequently challenged at the local, state, and federal levels. Boulder, Colorado, passed an ordinance in 1986 that forbade anti-abortion protestors from coming within four feet of abortion clinics. Dr. Warren Hern, who performs abortions later in pregnancy, wrote about the topic in his book, Abortion in the age of Unreason: A Doctor’s Account of Caring for Women Before and After Roe v. Wade.

A dispute erupted in the city that pitted the Colorado chapter of NARAL, now known as Reproductive Freedom for All, against the American Civil Liberties Union, which argued for the First Amendment rights of protestors.

Hern later compared it to psychological rape and characterized it as cruel. Hern wrote:

The demonstrators' purpose is not to express an opinion, which they could do with complete freedom anywhere, but to harass patients by exposing them to feelings of guilt, shame, and fear, thereby discouraging them from having an abortion.

Following the ordinance’s passage, antiabortion organizations filed suit in the Denver Federal District Court in 1987. Judge Zita Weinshienk heard the case and upheld the ordinance. Later, the Denver legislature passed a statewide “bubble” bill establishing buffer zones around Colorado clinics. The law was challenged in Hill v. Colorado, which was heard before the Supreme Court in 2000. The court ruled 6-3 in favor of Colorado.

Local and state governments established buffer zones throughout the country in response to the wave of assassinations of abortion doctors in the 1990s. They were again challenged in cases like Schenck v. Pro-Choice Network of Western New York, where the Supreme Court ruled that fixed buffer zones around abortion clinics are constitutional. Still, the court ruled that what are known as floating buffer zones, which are based on distance instead of a fixed area, were unconstitutional because they were overbroad in affecting political speech.

As the Supreme Court became more conservative, it began to side with antiabortion protestors. In the 2014 case of McCullen v. Coakley, the Supreme Court ruled that a Massachusetts law creating a 35-foot buffer zone around abortion clinics violated the First Amendment because it was not narrowly tailored and burdened more speech than necessary to achieve the government's interests.

In January 2023, the City of Carbondale, Illinois, enacted an ordinance creating 100-foot "bubble zones" around all entrances to the city's hospitals, medical clinics, and healthcare facilities. Coalition Life, a pro-life organization, sued the city, claiming the ordinance violated their First Amendment right to free speech, arguing it was an attempt to silence them and their pro-life advocacy, according to a summary written by Google AI. The Supreme Court declined to hear the case.

Renee Landers, a professor of law and faculty director of the Health and Biomedical Law Concentration and the Masters of Science in Law at Suffolk University, supports the existence of buffer zones. She is also on the board of Planned Parenthood League of Massachussetts.

“People have the right to enter a healthcare facility to get healthcare treatment,” Landers said. “And having people constantly trying to talk to you about why you're there, handing you things, interferes with this ability just to go into the healthcare facility and get medical care.”