I think it’s fair to say that Operation Save America and its soldiers for God are not here to quietly dissuade would-be pregnancy terminators from completing the act. Rather, Operation Save America and its rootin’, tootin’, Bible salutin’ troupe is here to “psychologically torture” and block women who attempt to have abortions — because that’s what terrorists do.
“Boy, is that First Amendment robust when it comes to shaming, harassing and psychologically torturing women,” said duVergne Gaines, a lawyer and director of the National Clinic Access Project for the Feminist Majority Foundation, here this week to ensure clinic access. But, not so full and rich when it comes to blockading clinics and fostering fear.
Operation Save America’s aim is to close Kentucky’s last remaining place where a woman can go to legally terminate a pregnancy. The result is now there is a war raging on a West Market Street sidewalk over the exercise of two rights: one that ensures legal abortion, and the other that ensures the exercise of free speech, both grounded in the U.S. Constitution.
The danger posed by the anti-abortion protesters’ speech is in both its content and delivery.
“It’s part of sort of this charismatic preaching to followers,” said Meg Stern, a clinic escort since 1999. For Stern and others, the fear comes when they think of the potential violent outcomes.
Welcome to the real “American Horror Story,” episode 2017.
The exercise of both the right to a legal abortion and freedom of speech carry litmus tests. In the most basic terms, state legislatures cannot place an undue burden on a woman’s right to a legal abortion, and state governments cannot restrict speech in a public forum without a compelling state interest and evidence of less burdensome alternatives than the attempted restriction. How the U.S. District Court for the Western District would decide on the 15- by 7-1/2-foot buffer zone in front of the EMW Women’s Surgical Center, to separate clinic protesters from escorts and patients, is no longer at issue. The protesters agreed to not contest the buffer zone.
“There has never been a buffer zone like this before,” Stern said, adding that the police have tried to create truces. “But, I’ve never seen it stick over long term since protesters aren’t really part of one organization.”
Women should have the same safe access to legal abortion as do other patients for other medical procedures, Stern said.
But the Kentucky Legislature’s and governor’s open hostility to abortion not only don’t guarantee safe passage to legal abortion, they seek to eliminate it entirely.
Certainly, the issue of buffer zones will come up again in Louisville.
“This court is intervening because people violated the law and threatened to do it again. This is one of the most narrow buffer zones,” Gaines said before the protesters had bowed out of the case.“It doesn’t apply to individuals [who aren’t protesters or those acting in concert with them or restrict protesters’ access]. They just can’t assail a patient and prevent her from coming in.”
The protesters might have argued that the buffer zone is too broad, viewpoint-based and not narrowly tailored to protect patients from violence or threats of violence, and thus illegal. Eleanor McCullen, then 77, successfully argued in McCullen v. Coakley (2014) that the 35-foot buffer zone around a clinic in Massachusetts violated her right to offer counsel, and to perhaps dissuade women from having abortions. But her counsel and Operation Save America’s actual and promised reign of terror are not comparable. She was, by all accounts, a sweet old lady. Operation Save America advocates no tolerance for any but its extreme brand of Christianity.
In McCullen, the Supreme Court found the 35-foot buffer zone was too deep because it restricted McCullen’s ability to speak. And it found that other, less-restrictive buffer zones did not engender violence. Inasmuch as there are no other clinics in Kentucky for precedence, the 15-foot zone might have stuck.
At least, until it doesn’t.
Once a woman has mustered the will to terminate her pregnancy, neither a raging, spittle-spewing soldier of Christ nor his propaganda of grotesqueness is going to deter her.
Stern predicted that the buffer zone may make the protesters louder, “but may also decrease the shoving, blocking and vulgar arguing with escorts who refuse to talk to them.”
“I can’t imagine what it would be like if I was the patient,” she said.