Obstructionist Activities At Abortion Clinics: A Framework for Remedial Litigation


Women who attempt to obtain abortions are often stopped at clinic doors by the verbal protests and obstructionist activities of anti-abortionists. Antiabortion obstructionist activities burden both the constitutional right of a woman to obtain an abortion and the ability of a clinic to provide abortion services. Anti-abortionists, however, have a constitutional right guaranteed by the first amendment to present their views to the rest of society. The purpose of this Note is to propose a framework for litigation designed to minimize or eliminate anti-abortion interference with the constitutional right of women to obtain first trimester abortions at clinics while respecting the first amendment rights of anti-abortionists and the importance of robust national debate on controversial social and political issues.

In Roe v. Wade, the Supreme Court held that the constitutional right of privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” The Court recognized, however, that the abortion decision involves not only a pregnant woman’s freedom to choose whether or not to bear a child, but also the state’s interest in preserving and protecting both the woman’s health and the “potential of human life.” In an attempt to accommodate both the woman’s and the state’s interests, the Court analyzed a state’s legitimate regulation of abortion in the context of the pregnant woman’s specific trimester of pregnancy. During the first trimester of pregnancy, the pregnant woman’s right to personal privacy is the most substantial interest at stake. The decision to have an abortion at this stage may therefore be made by the pregnant woman, in consultation with her physician, free of state interference. During the second trimester of pregnancy, the state may “regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.” Finally, during the third trimester of pregnancy, the state’s interest in the protection of potential life becomes compelling, and the state may go so far as to proscribe an abortion during this period except when the life or health of the pregnant woman is endangered.

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