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Equal Access V. Equal Protection

By George Wang

The battle over abortion rights took another twist Thursday when Governor William F. Weld '66 signed the abortion clinic access bill. Passed by large majorities in both the Massachusetts House and Senate, the act, authored by State Sen. Lois Pines (D-Newton), prohibits the obstruction of clinic entrances and increases punishments on violators.

The law's objective has merit. The government must protect everyone's right to enter an abortion clinic. Women seeking abortions should not be forced to endure pushing, shoving and other physical abuse while exercising their constitutional rights.

But this bill, despite its noble intentions to protect women, contains critical drawbacks which make it both unconstitutional and unjust. It singles out anti-abortion protesters for harsher punishments than any other protesters, violating their rights to equal protection under the law. This discrimination against the protesters smacks of censorship.

Previous laws prohibited demonstrators from obstructing entrances to any facilities, punishing violators equally whether they blocked a nuclear power plant, a factory or an abortion clinic. Pines' bill would be perfectly acceptable if it raised punishments across the board, for all offenders. It doesn't.

Instead, the clinic access act punishes ideas and motivations rather than actions. Animal rights advocates, AIDS activists and striking labor unions engage in activities similar to anti-abortion demonstrators. Yet those protesting abortion rights will now be put away for up to 2.5 years and fined up to $5,000, while their colleagues blocking the entrance to a power plant get a maximum of six months and only $1,000 in fines.

Senator Robert Antonioni (D-Worcester) attempted to remedy this unfairness by introducing an amendment which would have raised the disorderly conduct penalties for all violators. But last month the Senate voted this amendment down.

In fact, Massachusetts lawmakers purposely worded the legislation so as to make it inapplicable to strikes, even though strikes involve as much, if not more, violence than abortion protests.

During a United Mine Workers Association strike a few years ago, for example, local police had to call in federal and state agents to help control strike-related violence. Portions of Pittsburgh were transformed into a battlefield as striking workers detonated bombs to damage business property, threw molotov cocktails, hurled rocks at replacement workers and tried to warn them off by using nails to puncture their car's tires and threatening their lives.

Proponents of the clinic access bill try to justify this distinction by claiming that the right to enter abortion clinics requires special protection because the Constitution guarantees the right of a woman to have an abortion. This is true.

But it just as clearly guarantees a person's right to work. Women going to abortion clinics want an abortion; workers want to make a living. Neither group should be illegally prevented from achieving its goal.

The reason behind the careful targeting of anti-abortion demonstrators and the exemption of strikers is clear. Democratic legislators dominate both the House and Senate and do not want to upset unions, their strongest supporters and financial backers.

Operation Rescue and other anti-abortion supporters, on the other hand, hold little political clout in this state and therefore draw little sympathy from lawmakers. Anti-abortion protesters should not receive greater penalties just because they are politically incorrect, unpopular in the state and politically vulnerable.

True, anti-abortion proponents are not weak throughout the country, but they do constitute a minority here in Massachusetts. Just because a group has immense influence in other states does not mean we can disregard its rights here.

A further problem with the clinic access act involves its vague terminology, which leaves room for manipulation and abuse. Demonstrations are usually peaceful and lawful, and the government must take care not to restrict these lawful activities. This bill, however, is likely to intimidate peaceful protesters.

As the broad language of the bill prohibits such vague nonviolent activities such as "blocking clinic entrances." it is unclear how uniformly such prohibitions will be carried out.

Different police officers can interpret obstruction and blockading differently, and the resulting uncertainty in enforcement may infringe on protesters' civil liberties by deterring legal, peaceful demonstrations.

For example, does this law outlaw picketing in front of a clinic? After all, women may be forced to walk around picketers. Will a person who steps in front of a woman to hand her a leaflet be considered in violation?

The freedom of access bill fails to provide clear answers to these questions, even though the U.S. Supreme Court, in NAACP v. Claiborne Hardware, ruled that government must exercise "precision of regulation" in its prohibition of illegal activities "when such conduct occurs in the context of constitutionally protected activity."

As University of Chicago Law Professor Michael W. McConnell explains in a Wall Street Journal editorial, "Government must be careful not to impose any penalty or inhibition on lawful protest in the course of imposing liability on the lawful acts."

It may be unpleasant for a woman to have to endure picketers and their signs. They may not enjoy anti-abortion protesters' attempts at persuading them to not have an abortion. But the First Amendment is very clear on this issue: it specifically protects freedom of speech and association.

The Massachusetts government has done exactly what the Supreme Court warned against. By employing sweeping language, this act is likely to inhibit the actions of peaceful protesters.

The Constitution is very clear on the issue of minority rights. Their viewpoints, however unpopular, must not be denied equal protection of the law.

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