Recently, Madison city council passed a buffer zone ordinance. This buffer zone is a "floating" one creating a somewhat protective bubble of 8 feet around all persons within 160 feet of any health care facility. As with all buffer zone proposals, this one was met with some opposition. Often disguised as a concern for their right to free speech, anti choice groups speak out against these laws but in reality are just looking for a pass to insert themselves into a person's very private and personal decisions regarding their own health care. Amongst the opponents of these laws is a man named Matt Bowman who authored an absurdly argued and misleading op-ed featured in The Wisconsin State Journal.
There seems to be much confusion regarding the first amendment right to free speech and the constitutionality of the floating buffer zone. That’s understandable as our rights are not as clear cut as we’d like to believe.
There are a few points that have been made by constitutional law experts regarding buffer zones. First, the right to free speech is conditional and comes with responsibilities. It has numerous restrictions making it a limited right with no absolutes. We have laws against obscenity, threats, and incitement to violence, petitioning public officials in public buildings, discussing candidates in polling stations, and panhandling just to name a few. In fact, in 2005, Aubrey Andrus of The Wisconsin State Journal, reported that just one month after strengthening Madison’s panhandling ordinance, which required panhandlers to stay farther away from private property as well as public sidewalks and intersections, Madison “already felt safer”. Buffer zones surrounding polling places have been respected for 100 years despite the fact that they constitute a restriction on free speech.
I’m a big fan of defending free speech when appropriate. I’ve done so for Progressives and Republicans alike. Amusingly, in his 2/17 opinion piece, Matt Bowman writes, “Imagine if Republican Gov. Scott Walker spearheaded a gag rule that banned teacher unions from approaching someone to “leaflet” or “educate” them on the public sidewalk within a block of the Square.” There’s a reason he didn’t do this; it would be stupid and illegal. (Unfortunately, I don’t have to imagine him making singing in the capitol an arrestable offense because he did do that. I was arrested 3 times for it. Fortunately, for all of us, a ban on singing does not appear to be justified under the “harm principle”.)
Second, this “floating” buffer zone ordinance was directly modeled after one in Colorado which has been upheld by the Supreme Court of the United States. The buffer zone in Colorado was upheld in 2000 by a vote of 6-3 with the justices finding that the specifics of the law do not infringe on a person’s right to free speech. Other buffer zone laws are being reexamined, however their details differ greatly from those of Madison’s, including non-floating buffers and covering far greater distances surrounding the facilities.
Another point that seems to have been forgotten by some is that this ordinance applies to all of Madison, not just those on one side of a debate or another as well as applying to all health care facilities.
That means that this ordinance protects ALL patients, visitors, as well as people walking to the bus or their car or another business, within 160 feet of a health care facility. This ordinance does NOT state that no one is allowed on the property. It does not say that no one is allowed to speak to another person or pray for another person or offer a hand in support or a pamphlet. It prohibits them from doing so within 8 feet of a person unless they approve.
The reason this ordinance will greatly affect opponents of abortion is because that’s the majority of people that think it is acceptable to get closer than 8 feet to someone outside a health care facility, whether their advice or religion is welcomed or not. There aren’t many other people forcefully injecting themselves into the path of patients trying to access health care. And if there were, luckily, they would be prohibited from doing so as well.
When I was 13 and receiving prenatal care at a Planned Parenthood for a pregnancy I chose to go through with, I experienced everything from gentle praying, “bless you”s, to promises of money and baby items, to outright assault and violence. I saw signs shaming me, trying to embarrass me and trying to disgust me through gore and blood. No one cared why I was actually going in there. And despite their presentation, prayers made me uncomfortable as I did not share their beliefs. A strangerʼs hand on me, no matter how gentle, was also a deterrent and can even be a trigger for some survivors of assault or abuse. This discouraged me from continuing to receive prenatal care which was not fair for me or my child. Is this always the case? No. Are the majority of protesters outside certain clinics in Madison peaceful? Absolutely. But being peaceful and soft spoken does not mean you are not intimidating or making a health care facility an unwelcoming place. (My story is a tame one compared to most. Please read more about what goes on at these clinics here and here.)
Many of those desperately fighting to save their “right” to “counsel” women entering facilities that offer abortion in addition to numerous other health care services, do so by insisting over and over again that they are peaceful. All they want to do is protect women.
But where is the woman’s decision in this interaction?
Why not let a patient or visitor decide if they want to engage with you?
Once again, these people do not want women to have a choice.
This is not about protecting women and it is certainly not about free speech. It is about controlling women and it always has been.
The very purpose of a legislative building is consistent with fostering debate and open discourse, while the purpose of a health care facility is not furthered by allowing unrestricted protests. In this case, the value of our health care facilities are potentially reduced when protesters obstruct access and create an unwelcoming atmosphere.
While most outside abortion providing clinics are peaceful, there is a rich history of acts of terrorism on these facilities. Murders, shootings, arsons, bombings, Butyric acid and Anthrax attacks are just some of the methods used to further intimidate people from accessing health care. And THOSE are the main reasons why comparing this situation with the petitioning of local government when Act 10 was pushed through, is asinine, insensitive, and completely out of touch.
No person has the legal right to deter, intimidate, or harass anyone else seeking health care despite their intentions and no person should ever feel coerced into receiving or not receiving any type of medical care. This bill amounts to nothing more than a reasonable restriction on the place and manner in which protesters may operate.
Above all, let's please not forget the fact that women also have the constitutional right to access safe and legal abortion.
This ordinance assures that health care facilities, whether they provide controversial cancer treatments, prostate exams, or abortion care, remain safe places in which patients can make their own decisions regarding their health, including the decision to take or not take a pamphlet, a hand, or a prayer. I sat at a table to speak in support of this ordinance. The majority of the board was more than 8 feet away. We did just fine.
If you are concerned about not only women and girls, but all people, having access to health care, free of this kind of behavior, please learn more about buffer zones in your area or consider the incredibly brave option of becoming a clinic escort.
5:10 PM PT: I'm very happy to report that this buffer zone passed the evening of Tuesday the 25th. It was immediately challenged and the challenge was rejected by a Federal judge.