Abortion ‘bubble bill’ going
before U.S. Supreme Court
Law has origins to buffer zone
rule enacted by Boulder City Council
Warren M. Hern
SUNDAY, JUNE 11, 2000
This month, the U.S. Supreme Court
will decide two cases concerning abortion, one of them from Colorado
and the other from Nebraska. Of the two, the Nebraska
casse, Stenberg VS. Carhart, has the most constitutional significance but the Colorado
case, Hill vs. Colorado, had its
origins in Boulder.
In 1986, the Boulder City Council passed a
“Buffer Zone Ordinance” to protect women entering abortion clinics and doctor’s
offices from harassment by anti-abortion protesters. The basic concept of the ordinances is that,
within a distance of 100 feet from the clinic entrance, a demonstrator may not
come closer than eight feet to a patient or other person entering the clinic
without their explicit permission.
When this ordinance was passed, the
anti-abortion protesters, led by Jeannie Hill, requested an injunction against
its enforcement. The enjunction was
denied by a federal district court in Denver. Soon after this Denver
adopted thesame ordinance, and later, the Colorado
legislature passed the “Bubble Bill,” which contained effectively the same
The bill was signed into law by Gov. roy
romer. It was immediately challenged by
Hill with the help ofPat Robertson’s legal organization, the American
Center for Law and Justice. I was an expert witness for the State of Colorado
as it defended this law.
“Bubble Law” withstood court challenges through the Colorado Supreme
court. It has been accepted for review
by the U.S. Supreme Court because it is similar in concept to other laws and
ordinances that attempt to maintain distance between anti-abortion
demonstrators and those entering the clinics.
it appears that both the state law and the “buffer Zone” ordinance, which has
been given full support by the city government and law enforcement authorities,
hav had some effect in discouraging some demonstrators. In Denver
and other places, the effect has not been so clear.
For one thing, the law requires that the
person targeted by the demonstrators invoke the law and then request enforcement
if the demonstrators continue their harassment at close range. The problem with this arrangement is that
patients are terrified when approached by anti-abortion demonstrators and have
no effective way of invoking the law.
The police cannot be instantly present to witness the violation, and
even then, they must issue a warning. By
this time, the frightened patient is inside the building. The demonstrators have accomplished their
purpose of terror and harassment.
The Supreme Court must decide if the
“Bubble Law” unconstitutionally limits the free speech rights of the
demonstrators or whether it merely makes a reasonable limitation that protects
the rights of the women to be left alone.
In my opinion, the Colorado
law has only symbolic value in the expression of community sentiment. It provides no real protection for women
subjected to anti-abortion harassment.
The law assumes that those involved are reasonable people who respect
the law, the Constitution, and the rights of others. This is not the case with anti-abortion
A truly effective law would invoke the
same constitutional compromise used in keeping political activity 100 feet or
more from a polling place. But, in 1986,
the American Civil Liberties Union would only agree to requiring that
demonstrators observe a “buffer zone” of eight feet from patients entering
clinics in Boulder. At that distance, anti-abortion terror
reigns, and that is exactly the point of anti-abortion demonstrations.
In the Supreme Court hearings earlier this
year, the ACLU argued against the Colorado
law. Go figure.
In the Nebraska
case before the Supreme Court, the state is appealing a decision by a federal
appeals court that struck down the law.
Although it was presented by its sponsors as a law prohibiting “Partial
Birth Abortion,” a non-medical term supposedly referring to some late
abortions, the law is written to cover almost all abortions.
Dr. Lee Carhart, the Nebraska
surgeon who challenged the law, states that the law is so vague that it could
be used to make any abortion illegal.
Lawyers for the Center for Reproductive Law and Policy, who argued the
case for Dr. Carhart before the Court, contend that the Nebraska
law threatens the two remaining principles of the 1973 Roe vs. Wade decision,
which made abortion legal in the U.S. Those principles are: that the woman’s right
to life and health prevails over the life of the fetus at any stage of
pregnancy, and that viability will be the dividing point in acceptable legislation. In Stenberg vs. Carhart, a decision to uphold
the Nebraska law would strike
down Roe vs. Wade.
Warren M. Hern, a physician,
is Director of the Boulder Abortion Clinic. He testified as an expert witness for the
State of Colorado in one of the cases discussed here, Hill vs. Colorado