Analyzing Protests of the Last Abortion Clinic in Kentucky By Katherine Slye

Tensions run high when First Amendment freedoms of speech and association come in conflict with the right to choose. It’s a constant battle between the rights of pro-life citizens to express their displeasure with abortion and the right of women to access clinics for the procedure. The question almost always ends up in court. 

Recently in Kentucky, there have been attempts to shut down the state's last remaining abortion clinic. There were so many protestors at the Louisville clinic that it was nearly impossible for anyone to enter the clinic. A Judge imposed a temporary buffer zone. 

Operation Save America, who is leading the protests at the clinic, originally challenged the buffer zone claiming it violated the protestors first amendment rights, though later agreed to drop the case. Members of the group are still showing up to protest, but are abiding by the temporary buffer zone (marked with tape) that expires on Saturday.

Kentucky’s Governor Matt Bevin has signed multiple pro-life bills into law and has been attempting to rid Kentucky of its last abortion clinic. In Kentucky, like many other states, clinics must follow extensive rules, including having relationships with local hospitals and be licensed, things the clinic says it has complied with.

“In March,” however, “the state said there were deficiencies and threatened to yank the clinic's license.” The Louisville clinic is challenging these and other requirements, including that “the abortion doctor or a ‘qualified technician’…perform an ultrasoundand then try to show fetal images to the pregnant woman before she consents to an abortion.” A trial has been scheduled for September of this year.

Kentucky would become the second state to have no clinics that offer abortions. 100 percent of Wyoming counties had no abortion clinics as of 2016 according to a yearly report produced by the National Abortion Rights Action League, who utilized data from the Guttmatcher Institute.

Are protestor’s First Amendment rights being violated?

First, buffer zones are nothing new. They are often imposed by a judge when a clinic can demonstrate that their clients are being prevented from accessing the clinic but some are created through the legislature. As of 2016, 17 states, plus the District of Columbia, had some sort of clinic protection in place.

This does not mean that all buffer zones are constitutional. In 2014, for example, the Supreme Court struck down a Massachusetts buffer zone law that made “it a crime to stand on a public road or sidewalk within thirty-five feet of a reproductive health care facility.”

Second, these buffer zones do not prohibit or prevent protests, as evident in Kentucky. Protestors are not prevented from being present or expressing their views. They are just kept a certain distance from clinic entrances so that there is no impediment of access for clinic patients.

The purpose of the buffer zones is to allow patrons the freedom of association in going into the clinic. It still allows protestors to exercise their first amendment rights, though with some restrictions. These situations always require a balancing of rights: those of the protestors and those of clinic patents.

This battle in Kentucky is just the most recent example of clinic protests, and it probably will not be the last; however, it does present a unique situation that other states that only have one abortion clinic could face in the near future: what happens when no clinics offer abortion in a state? In these instances, does a woman have the right to choose if she cannot go anywhere to exercise that right?

This might very well turn into a challenge to the 1992 Casey “undue burden” test for state abortion restrictions because state restrictions are clearly leading to the closure of clinics. The problem becomes to what extent the government must ensure the right to choose is actually an option for women who live in certain states without abortion clinics.

Katherine Slye, MA is a PhD Candidate at the University at Albany working on her dissertation, which examines the past lobbying strategies of abortion interest groups, "How Choice is Made in the Choice Debate."