Amicus Curiae Brief — Hill v. Michigan Attorney Grievance Commission

DE C 4 (19) (7 = Supreme Court, U.S.

No. 98-1856 FILED

IN THE .

OFFICE OF THE CLERK

Supreme Court of the Unite States ——

LEILA JEANNE HILL, et al.,

Petitioners,

Vv.

THE STATE OF COLORADO, BILL Owens,

GOVERNOR, ef al.,

Respondents.

On Writ of Certiorari to the

Colorado Supreme Court

BRIEF OF THE AMERICAN COLLEGE OF

OBSTETRICIANS AND GYNECOLOGISTS AND THE

AMERICAN MEDICAL ASSOCIATION AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

ANN E. ALLEN CARTER G. PHILLIPS

AMERICAN COLLEGE OF MARK E. HAppaAp *

OBSTETRICIANS AND LEE L. AUERBACH

GYNECOLOGISTS SIDLEY & AUSTIN

409 12th Street, S.W. 1722 Eye Street, N.W.

Washington, D.C. 20024 Washington, D.C. 20006

(202) 638-5577 (202) 736-8000

MICHAEL L. ILE

LEONARD A. NELSON

AMERICAN MEDICAL

ASSOCIATION

515 North State Street

Chicago, IL 60610

(312) 464-4600

Counsel for Amici Curiae

December 13, 1999 * Counsel of Record

WILSON-EPEes PRINTING Co., Inc. - (202) 789-0096 - WASHINGTON, D.C. 20001

AVAILABLE COPY

QUESTION PRESENTED

Amici will address the following question:

Whether a statute that makes it unlawful knowingly to

approach closer than eight feet to an individual who is within

100 feet of the entrance to a health care facility, unless the

individual consents to the approach, for the purpose of

handbilling, displaying a sign, or engaging in oral protest,

education, or counseling, is a reasonable restriction on the time,

place, and manner of speech.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..... 6 .cictecsseee eee i

TABLE OF ALSTOUIREEMED .. oss cccustevenspeeen iil

INTEREST OF AMICI CURIAE ..... 0.2 c ccc cccvses l

DACRE . wo occ dnceeccee nee 2

1. The Adverse Health And Safety Effects Of

Protest Activities Outside Abortion Clinics . 6

2. Protest Activities Directed At Clinic Staff. 11

SUMMARY OF ARGUMENT .................... 13

pt eee rere 14

A. The Statute Regulates The Place, Not The

Contant, GURNOMD. oi. aio sc ceeenee 15

B. The Statute Serves Compelling Government

: | ee 18

C. The Statute Is Reasonably Tailored To Protect

The State Interests At Stake And Leaves

Open Ample Alternative Channels Of

COMMS |... <acad dives eee 22

CURGURARIIIS oo voc ccenes tus neuen ee eee 29

Ce ee

— ee

TABLE OF AUTHORITIES

CASES

Page

Adderley v. Florida,

EE 28

American Steel Foundries v. Tri-City Cent. Trades Council,

Ee a 27

Bellotti v. Baird,

NN... ocean cee. 2!

Beth Israel Hosp. v. NLRB,

ec ebcee eee: 29

Burson v. Freeman,

EEN 18,22,29

Carey v. Brown,

ESE 17

City of Renton v. Playtime Theatres, Inc.,

ES 16

Cox v. Louisiana,

EE a 28

Dallas County Hosp. Dist. v.

Dallas Ass'n of Community Orgs. for Reform Now,

NS SG Oe 29

FCC v. Pacifica Found.,

ee dina ditaesies 21

Fargo Women's Health Org. v. Lambs of Christ,

ep ee EY SE noc 5 ua oh dunn waese es 6

Frisby v. Schultz,

Cy Ge EE dc cakwasehebavbuad 16,17,21,28,29

Grayned v. City of Rockford,

Gee MED ‘sninso35 cdebacnceewe cn ... 28,29

Heffron v. International Soc'y for Krishna Consciousness,

Ge ED ko Som ctoenh dsnadendeni 13,24

Hillsborough County v. Automated Med. Labs., Inc.,

Gre Gk SE a ws a baevee es ceseweaeawer 22

Kelley v. Johnson,

Pes CEES 3 ok Kc cuncdic sn sents 22

Kovacs v. Cooper,

Sy CS ng wires act ceced eehn eee 21,24,26

Lehman v. City of Shaker Heights,

PD dukink eeisla tae oy dain kde tke eae 20

Madsen v. Women's Health Ctr., Inc.,

Pe HE sigs bc cin sé piu bse een passim

Medtronic, Inc. v. Lohr,

NPE, ck nS s wo wig Gain a an ca eee 22

NLRB v. Baptist Hosp., Inc.,

RI EE ge pee Ts 29

Northeast Women's Ctr., Inc. v. McMonagle,

oe ft RS ene 5

iV

— reg

Operation Rescue-National v.

Planned Parenthood of Houston and Southeast Texas, Inc.,

975 S.W.2d 546 (Tex. 1998) ............. .... 5,8,10

Planned Parenthood Shasta-Diablo, Inc. v. Williams,

898 P.2d 402 (Cal. 1995), cert. denied,

BS ee ee 5.8

Police Dep't of Chicago v. Mosley,

EE ES ee 17

Pro-Choice Network v. Project Rescue,

799 F. Supp. 1417 (W.D.N_Y. 1992),

aff'd in part and rev'd in part on other grounds,

og RR IEEE ae care ae §.8,11

Roe v. Wade,

ee rs Oo) aa eweee < 29

Rowan v. United States Post Office Dep't,

IE 4 ee 20,21

Schenk v. Pro-Choice Network of Western New York,

RIS <a il ERTS NE ARR) a 25

Thornburgh v. American College of Obstetricians &

Gynecologists, 476 U.S. 747 (1986) ................ 21

United States v. Grace,

sg nig Pilg wan nee seuss 17

United States v. Kokinda,

EE: ae en eee 28

Ward v. Rock Against Racism,

ff | ee ee ee 18,22

STATE STATUTE

A ee rey 18

OTHER AUTHORITIES

Abbott & Abbott, Psychological and Cardiovascular

Predictors of Anaesthesia Induction, Operative and

Postoperative Complications in Minor Gynaecological

Surgery, 34 Brit. J. Clin. Psychol. 613 (1995) ......... 10

Adler et al, Psychologic Factors in Abortion, Am.

Psychologist, Oct. 1992, at 1194

Binkin, 7rends in Induced Legal Abortion Morbidity and

Mortality, 13 Clin. Obstet. Gynec. 83 (1986)........... 2

Halvorson Boyd, Surviving a Holy War: How Health Care

Workers in U.S. Abortion Facilities Are Coping With

Antiabortion Harassment (1990) ................... 12

Buehler et al., 7he Risk of Serious Complications from Induced

Abortion: Do Personal Characteristics Make a Difference ?,

153 Am. J. Obstet. Gynec. 14 (1985)................. 2

Cates et al., Zhe Effect of Delay and Method Choice on the

Risk of Abortion Morbidity,

9 Fam. Plan. Persp. 266(1977) .................. 2,11

Cates et al, Prevention of Uterine Perforation During

Curettage Abortion, 251 JAMA 2108 (1984)........... 2

vi

Cozzarelli & Major, The Effects of Anti-Abortion

Demonstrators and Pro-Choice Escorts on Women's

Psychological Responses to Abortion, 13 J. Soc. Clin. Psychol.

TE Takeo ah Olle Wold dbs 0ks Ses 0X as bs ooo 4 Os 8

Fitzpatrick & Wilson, Exposure to Violence and Posttraumatic

Stress Symptomatology Among Abortion Clinic Workers,

12 J. Traumatic Stress 227 (1999) .................. 12

Frankel-Fein, Defense Style, Social Support Appraisal,

Responses to a Counseling Session, and Stress Perception in

Women Undergoing Abortion (1991)................. 6

Garfield, Psychologic Problems in Anesthesia, 10 Am. Fam.

Physician 60 (1974) ..........

Grimes, Clinicians Who Provide Abortions: The Thinning

Ranks, 80 Obstet. & Gynec. 719(1992) ............. 13

Handy, Psychological and Social Aspects of Induced Abortion,

21 Brit. J. Clin. Psychol. 29(1982) .................. 7

Henshaw, Abortion Incidence and Services in the United

States, 1995-1996, 30 Fam. Plan. Persp. 263 (1998) _.... 2

Henshaw, The Accessibility of Abortion Services in the United

States, 23 Fam. Plan. Persp. 246(1991).......... 3,12,21

Henshaw, Factors Hindering Access to Abortion Services,

27 Fam. Plan. Persp. 54(1995) .................. 5,13

Hern, Abortion Practice (1984) .................... 10

vii

Hern, Proxemics: The Application of Theory to Conflict

Arising From Antiabortion Demonstrations, 12 Population &

CR PP rer eee eee 8,9,10

Kay, Psychological Preparation for a Potentially Stressful

pe aT 7)

Kiecolt-Glaser et al., Psychological Influences on Surgical

Recovery: Perspectives From Psychoneuroimmunology,

Se Hee. TU GNEEED concn coevieseswsedeses 9

Landy, Abortion Counseling--A New Component of Medical

Care, 13 Clin. Obstet. Gynec. 33 (1986) ............ 6,7

Lawson et al., Abortion Mortality, United States, 1972 Through

1987, 171 Am. J. Obstet. Gynec. 1365 (1994) ....... 2,10

Levine et al., Failure Hurts: The Effects of Stress Due to

Difficult Tasks and Failure Feedback on Pain Report, 54 Pain

BP. voc ctcctduneseucasdee ssutioees sane 9

Manyande et al., Arsciety and Endocrine Responses to Surgery:

Paradoxical Effects of Preoperative Relaxation Training,

54 Psychosomatic Med. 275 (1992) .................. 9

Meyer, Haemodynamic Changes Under Emotional Stress

Following a Minor Surgical Procedure Under Local

Anaesthesia, \6 Int'l J. Oral Maxillofac. Surg. 688

GRD pts a vices cad ceed ces cere ee 7,10

Polk-Walker, Counseling Implications in a Client's Choice of

Anesthesia During a First or Repeat Abortion, 28 Nursing F.

SEGRE cc cccdctavnve cae tateeeietienee 6

INTEREST OF AMICI CURIAE

Amici are national, private, voluntary, nonprofit

organizations of physicians dedicated to promoting the public

welfare through the maintenance of the highest professional

standards and the provision of quality health care. Amicus

American College of Obstetricians and Gynecologists (ACOG)

is the leading group of professionals providing health care to

women; its more than 40,000 members represent over 90

percent of all obstetricians and gynecologists practicing in the

United States. Amicus American Medical Association (AMA)

was founded in 1847 to promote the science and art of medicine

and the betterment of public health, The AMA's nearly 300,000

members practice in all fields of medical specialization.

Amici have a two-fold interest in this case. First, the

Colorado statute at issue regulates conduct that has had a

demonstrably deleterious effect on the health and welfare of

patients at medical facilities. The conduct prohibited by this

statute increases the risks associated with the provision of

medical services to patients. Second, amici believe that health

care providers have a fundamental right to be free from focused,

intimidating and harassing picketing and other forms of coercive

protest that include violence and threats of violence and which

impede their ability to provide lawful health care services. See

e.g., App. la (policy statement of AMA House of Delegates

opposing all acts of violence and intimidation against healthcare

providers and medical facilities (including abortion clinics and

family planning centers), and supporting the individual's right of

access to such facilities). Because this case concerns the extent

to which a state can regulate conduct that is fundamentally

incompatible with the health and safety of patients and health

care providers, amici wish to present their views.'

’ Pursuant to Rule 37.3 of the Rules of this Court, the parties have

consented to the filing of this brief. The parties’ letters of consent have been

(continued...)

BACKGROUND

Easily overlooked in the often heated ethical, moral, and

legal debate surrounding abortion is the fact that it is an invasive

medical procedure. When performed correctly by trained and

experienced physicians, abortion is_ relatively _ safe.

Nevertheless, an estimated 5,000 women "suffer a serious

complication” from the procedure each year, and "the potential

for complications is a major public health concern." Buehler et

al., 7he Risk of Serious Complications from Induced Abortion:

Do Personal Characteristics Make a Difference?, 153 Am. J.

Obstet. Gynec. 14 (1985). Among the most serious

complications are infection necessitating hospitalization,

hemorrhage requiring transfusion, uterine perforation, bowel or

bladder injury, pulmonary embolism, endotoxic shock,

convulsions, cardiac arrest and, in rare circumstances, death.”

'(...continued)

lodged with the Clerk of the Court. No counsel for a party authored this brief

in whole or in part and no person, other than amici, their members or their

counsel made a monetary contribution to the preparation or submission of this

brief. Rule 37.6.

? Cates et al., The Effect of Delay and Method Choice on the Risk

of Abortion Morbidity, 9 Fam. Plan. Persp. 266, 267 n.t (1977), Cates et al.,

Prevention of Uterine Perforation During Curettage Abortion, 251 JAMA

2108 (1984). Some 240 deaths associated with legal, induced abortions were

reported to the Centers for Disease Control and Prevention between 1972 and

1987. Lawson et al., Abortion Mortality, United States, 1972 Through 1987,

171 Am. J. Obstet. Gynec. 1365, 1367 (1994). The leading causes of abortion

mortality are hemorrhage, anesthesia complications, infection and amniotic

fluid embolus. /d., Binkin, Trends in Induced Legal Abortion Morbidity and

Mortality, 13 Clin. Obstet. Gynec. 83, 90 (1986).

2

In the United States, approximately 70 percent of all

abortions are performed in stand-alone clinics,’ such as the

Planned Parenthood clinics and Boulder Women's Clinic where

petitioners have protested. These clinics are licensed medical

facilities, staffed by physicians and other trained medical

personnel who, in addition to performing or assisting with the

abortion procedure itself, administer general and local

anesthesia before the operation and analgesics and other

necessary medications after the operation. The medical staff

also must recognize and respond to any of the major or minor

complications that might arise during or after the procedure. In

addition, almost all clinics provide other medical services, most

typically contraceptive care to nonabortion patients, general

gynecologic care, treatment for sexually transmitted diseases

and general medical care‘ Some of this care, such as

performing pap smears to detect cervical cancer, is potentially

life-saving. See J.A. 62.

In Colorado, as in other states, only a small percentage

of patients who visit facilities where surgical abortions are

performed are seeking abortion services. For example, in the 26

clinics it operates in Colorado, Planned Parenthood facilities see

approximately 60,000 patients for family planning services each

year. J.A. 62. Abortion patients comprise only about seven

> Henshaw, Abortion Incidence and Services in the United States,

1995-1996, 30 Fam. Plan. Persp. 263 (1998).

* Henshaw, supra note 3, at 269. Many clinics also provide

nongynecologic surgery, obstetric care, infertility counseling or treatment, HIV

testing and female sterilization. Henshaw, The Accessibility of Abortion

Services in the United States, 23 Fam. Plan. Persp. 246, 247 (1991).

3

percent of that total. /d.° These Planned Parenthood clinics

annually perform approximately 25,000 pregnancy tests and

55,000 pap smears. /d.

Notwithstanding the fact that most patients who visit

these facilities seek services other than abortions, the facilities,

many of their patients, and many of the persons who accompany

them to office visits, are subjected to sometimes aggressive,

sustained anti-abortion protests and demonstrations.° The

“protestors are there all the time, shouting and screaming." J.A.

98. “They ignore the fact that many women who use these

clinics are not there for abortions." /d. at 182. Indeed, a

representative of Operation Rescue Colorado conceded that

protestors have no means to discern whether a particular patient

entering a clinic is seeking an abortion or other medical services.

Id. at 75-76. Thus, women who visit clinics for non-abortion

services often must run the same gauntlet of abuse and

harassment as women seeking abortions. /d. at 65. "[The

protesters] will shout at anybody coming in, male, female, it

doesn't matter." /d. at 99. As a consequence, some women

delay or forgo necessary medical examinations or treatment.’

Witnesses who testified during the legislative hearings

that preceded the enactment of Colo. Rev. Stat. § 18-9-122

depicted numerous forms of confrontational, "in-your-face"

* Similarly, abortions account for less than one percent of the

practice of Denver obstetrician and gynecologist, Dr. Charles H. Gartner. J.A.

217-18.

® See JA. 59, 69, 100, 182, 218, 220, 222, 234.

” See J.A. 66 ("people often won't come on the days that they know

we are doing abortions . . . because they don't want to be subjected to that"),

id. at 219 (several patients indicated they would not return for pre-natal care

because they did not want to endure harassment).

4

conduct by antiabortion protestors designed to harass, upset,

intimidate, and obstruct clinic patients and staff. This behavior

included yelling and screaming, J.A. 65-67, 69, 98, 154; the

thrusting of graphic signs and placards into patients’ faces, id.

at 66, 69, 70, 154, into car windows and onto windshields, id.

at 67, 99, 105-06; physical assaults, including pushing, shoving,

biting, pinching and kicking, id. at 93-94, 158; verbal assaults,

id. at 71, 183; attempts physically to pull patients out from

within the midst of escorts attempting to protect them, id. at

158; the blocking of parking lot and building entrances, id. at

63, 93; storming clinic buildings, id. at 94; and vandalism, such

as gluing shut clinic door locks and pouring butyric acid onto

clinic floors. Jd. at 63-64, 67. One objective of these tactics

is to "try to upset the patient as much as possible." /d. at 66.

This testimony is consistent with nationwide trends. A

leading researcher on women's healthcare issues has reported

that in recent years harassment of women and providers at

abortion clinics has become more widespread and has involved

more individual protestors. Henshaw, Factors Hindering

Access to Abortion Services, 27 Fam. Plan. Persp. 54, 59

* The record is replete with other evidence of such conduct in the

form of affidavits submitted to the district court See JA. 218

("{D]emonstrators . . . would surround patients’ cars after they parked, and

aggressively approach patients, sometimes yelling at them and thrusting signs

or literature in their faces”), id. at 222-23 ("demonstrators surrounded the car,

slapped their signs against the windshield, and yelled at and taunted

[escorts]"), id. at 223 (demonstrators “shoved signs in [a patient and her

mother's} faces,” would call patients, their family members and escorts

“murderers,” tell patients they are going to die, and taunt patients and their

family members with inflammatory and abusive language, including racial

epithets), id. at 224 ("Demonstrators jostled patients, screamed at them, and

thrust signs and pamphlets in their faces”).

5

(1995).° Fifty-five percent of nonhospital providers reported

experiencing at least one form of harassment during 1992. /d.

at 58. Of nonhospital facilities that performed 400 or more

abortions in 1992, one-half reported picketing with physical

contact or blocking of patients, 42 percent reported vandalism

and 30 percent reported blockades. /d. at 58.

1. The Adverse Health And Safety Effects Of

Protest Activities Outside Abortion Clinics.

The activities described above increase the medical risks

associated with abortions and other procedures. By increasing

patients’ pre-surgical emotional stress, this conduct increases

the difficulty and risk of administering medical treatment and

places patients at greater risk of suffering serious complications.

For example, coping with the emotional complexities of

an unwanted pregnancy is recognized to be a particularly

* Such conduct also has been described in numerous court decisions

around the country. See, e.g, Operation Rescue-National v. Planned

Parenthood of Houston and Southeast Texas, Inc., 975 S.W.2d 546, 550-51

(Tex. 1998) ("protestors were confrontational, coming within inches of

patients’ faces and shouting at them"), Planned Parenthood Shasta-Diablo,

Inc. v. Williams, 898 P.2d 402, 404 (Cal. 1995), cert. denied, 520 U.S. 1133

(1997) (sidewalk counselors pressed literature and plastic replicas of fetuses

on patients attempting to enter the clinic); Pro-Choice Network v. Project

Rescue, 799 F. Supp. 1417, 1424-26 (W.D.N.Y. 1992) (af a woman passed

a sidewalk counselor without changing her mind, she would then pass through

a throng of protestors who harassed and screamed at her, and sometimes even

assaulted her), aff'd in part and rev'd in part on other grounds, 67 F.3d 359

(2d Cir. 1994), Northeast Women's Ctr., Inc. v. McMonagle, 868 F.2d 1342,

1346 (3rd Cir. 1989) (demonstrators pushed, shoved, and tugged on patients

as they attempted to enter clinic); Fargo Women's Health Org. v. Lambs of

Christ, 488 N.W.2d 401, 405 (N.D. 1992) (screaming protestors struck,

pushed, and threatened escorts).

stressful life event.'° In addition, many women approach

abortion, like any other invasive procedure, with trepidation

because it "is a medical procedure which may be uncomfortable

or painful." Landy, supra at 38."' Indeed, most adult patients

have some degree of state anxiety (/.e., relatively short-term

anxiety of external origin) relating to anesthesia (Garfield,

Psychologic Problems in Anesthesia, 10 Am. Fam. Physician

60, 61-62 (1974)), and even a minor surgical procedure can

create “an important problem of emotional stress for many

patients." Meyer, Haemodynamic Changes Under Emotional

Stress Following a Minor Surgical Procedure Under Local

Anaesthesia, 16 Int'l J. Oral Maxillofac. Surg. 688, 694

(1987).

For patients already in a state of emotional vulnerability,

protest activity at close range can "have a profound negative

effect on the psychological and physiological health." J.A. 272-

73. Warren M. Hern, M.D., M.P.H., Ph.D., a physician who

maintains a private practice at the Boulder Abortion Clinic,

observed that on the days protests took place at that facility

patients experienced "considerably more stress," the level of

which corresponded to the aggressiveness of the demonstrators.

© Adler et al., Psychologic Factors in Abortion, Am. Psychologist,

Oct. 1992, at 1194, 1197, Landy, Abortion Counseling--A New Component

of Medical Care, |3 Clin. Obstet. Gynec. 33, 36 (1986), Frankel-Fein,

Defense Style, Social Support Appraisal, Responses to a Counseling Session,

and Stress Perception in Women Undergoing Abortion 4, 3\ (1991), Polk-

Walker, Counseling Implications in a Client's Choice of Anethesia During

a First or Repeat Abortion, 28 Nursing F. 22 (1993).

'' See also Handy, Psychological and Social Aspects of Induced

Abortion, 21 Brit. J. Clin. Psychol. 29, 37 (1982).

'? This is especially true of teenagers, who lack experience with

pelvic examinations and medical procedures generally. Landy, supra at 38.

7

/d. at 220, 273. Patients would come into his office shaking,

tearful and in great distress from harassment and insults, and

from the fact that the demonstrators approached them very

closely. /d. Clinic staff would have to calm them down for

some time, which often delayed their medical care. Jd. On one

occasion, a young adolescent girl was so emotionally

traumatized by an especially hostile and abusive group of

demonstrators that "she sank into what is best described as a

clinically catatonic state in the clinic's front waiting room." /d.

at 279.

Patients exposed to protestors experienced a "fight-or-

flight" reaction, especially when the demonstrators approached

closely. J.A. 220, 273. Evidence of such a reaction observed

on patients included pallor, shaking, sweating, pupillary dilation,

palpitations, hyperventilation, and urinary retention. /d. at 220-

21. Dr. Hern and his staff observed that “when the

demonstrators are close to the patients, as when they are

blocking the sidewalk for patients, the severity of these

reactions increases manyfold." /d. at 275.

Dr. Hern's assessment is corroborated by evidence from

other clinics where patients encountering similar protests have

likewise suffered psychophysical stress and accompanying

symptoms. See Cozzarelli & Major, The Effects of Anti-

Abortion Demonstrators and Pro-Choice Escorts on Women's

Psychological Responses to Abortion, 13 J. Soc. Clin. Psychol.

404, 406, 421 (1994) (some women show obvious signs of

psychological stress (including sweating, palpitations, anger,

crying, or hyperventilation) after being subjected to anti-

abortion demonstrators; the greater the personal contact women

had with the anti-abortion demonstrators, the more upset they

became); Hern, Proxemics: The Application of Theory to

_~ —_-

Conflict Arising From Antiabortion Demonstrations, 12

Population & Env't 379, 380 (1991).

The stress-related symptoms described above complicate

an abortion and increase its risks. See J A. 273. For example,

urinary retention makes it difficult or impossible to perform a

pelvic examination and determine uterine size or the presence of

any co-existing pelvic pathology, both of which are essential in

the preoperative evaluation. /d at 221, 273; Hern, supra at

380-81. Hyperventilation can lead to agitation and muscle

spasms, making it more difficult for patients to remain still

during medical treatment, and thus increasing the risks of

complications such as perforating the uterus during the

performance of an aboriion. JA. 221, 273-74.

Hyperventilation also can lead to uncomfortable sensations,

which can heighten anxiety, and lead to loss of consciousness if

a vasovagal syndrome (a transient vascular and neurogenic

reaction to emotional stress, and marked by pallor, nausea,

sweating, and a rapid fall in blood pressure) occurs. Hern,

supra at 380-81

Studies of patients who have undergone abortions have

shown that tension affects the degree of pain experienced and

' See also Hern, supra at 382; Madsen v. Women's Health Ctr,

Inc., 512 U.S. 753, 758 (1994) (trial court found that protests “took their toll

on the clinic's patients”), Planned Parenthood Shasta-Diablo, Inc., 898 P 2d

at 411 (“physical confrontations with protestors moments before receiving

medical treatment, including surgical procedures, subjected patients to

heightened stress and anxiety"), Operation Rescue-National, 975 S W 2d at

551 (“patients would enter clinics visibly shaken, crying, and nervous”), Pro-

Choice Network, 799 F. Supp. at 1427 (women targeted during

demonstrations “usually enter the medical facilities visibly shaken and severely

distressed”).

9

the difficulty of the procedure itself.'* This finding is consistent

with other studies of stress and its effects on surgery patients. '°

"In general, high preoperative fear or stress is predictive of a

variety of poorer outcomes, including greater pain, longer

hospital stays, more postoperative complications, and poorer

treatment compliance." Kiecolt-Glaser et al., Psychological

Influences on Surgical Recovery: Perspectives From

Psychoneuroimmunology, 53 Am. Psychol. 1209, 1214 (1998).

If a patient becomes agitated before or during the procedure,

"she could easily experience serious complications of the

abortion that would be extremely unlikely under other

circumstances." Hern, supra at 381.

Some of these complications stem from the use of

anaesthesia. © Patients exhibiting signs of heightened anxiety

'‘* Kay, Psychological Preparation for a Potentially Stressful

Medical Procedure 32 (1984) (“hugh levels of preoperative anxiety in abortion

patients are associated with greater pain and discomfort during the abortion

procedure, when compared with moderate levels of anxiety”).

Levine et al., Failure Hurts: The Effects of Stress Due to Difficult

Tasks and Failure Feedback on Pain Report, 54 Pain 335, 336 (1993),

Manyande et al , Anxiety and Endocrine Responses to Surgery. Paradoxical

Effects of Preoperative Relaxation Training, 54 Psychosomatic Med. 275,

283 (1992)

- "[A] person's pre-operative emotional, cognitive

of anaesthesia, operative problems and short-term

recovery.... High levels of heart rate and blood

pressure immediately prior to the induction of

anaesthesia 1s a clinically undesirable state which

determines induction, operative and post-

operative outcomes.”

(continued...)

10

often require higher levels of sedation See Operation Rescue-

National v. National Parenthood of Houston and Southeast

Texas, Inc., 975 $.W.2d 546, 551 (Tex. 1998). Increasing the

level of sedation in turn increases the risk of the surgery."’

Indeed, Dr. Hern stated in his affidavit that on several occasions

a patient's anxiety-related symptoms were so great that it was

necessary to delay surgery. J.A. 220. With such delay also

comes increased risk of complications. See Cates, et al., The

Effect of Delay and Method Choice on the Risk of Abortion

Morbidity, 9 Fam. Plan. Persp. 266, 268 (1977) ("any delay

increases the risk of complications"), see also Pro-Choice

Network vy. Project Rescue, 799 F. Supp. 1417, 1427

(W.D.N_Y. 1992).

2. Protest Activities Directed At Clinic Staff.

Anti-abortion protestors target not only patients but also

patient escorts, clinic employees, and volunteers. Their assaults

have subjected all these persons to significant stress, placed

them at a risk of experiencing mental health problems, and

reduced the availability and quality of medical services.

'*(._continued)

Abbott & Abbott, Psychological and Cardiovascular Predictors of

Anaesthesia Induction, Operative and Post-operative Complications in

Minor Gynaecological Surgery, 34 Brit. J. Clin. Psychol. 613, 621 (1995).

" See Hern, Abortion Practice 35-37 (1984) (general anesthesia is

associated with a two- to four-fold increase in first-trimester abortion fatalities,

and significant increases in uterine perforation, cervical injury, blood

transfusions and corrective major surgery), Lawson et al., supra at 1371

("[T]}he majority of the deaths [from legal abortions] in 1983 through 1987

usually associated with lowest overall msk."), Meyer, supra at 688 (noting

that, in cases of “[ujnexplained cardiovascular reactions and fatalities”

associated with local anaesthesia, "[i}mportant factors are fear, anxiety and

stress”).

The testimony before the Colorado General Assembly

included accounts of patient escorts being physically assaulted

numerous times by protestors at medical facilities. J. A. 93-94.

Protestors attempting to block patients’ access to a clinic would

surround escorts (who, in turn, were surrounding the patients

and their family members). These protestors “would push,

they'd shove. Sometimes, they'd lose control and they'd bite us

and kick us and pinch us." /d. at 94. One escort testified that

she was hit by men twice her size while trying to get 12 and 13-

year-old patients into a clinic. /d. at 105. See also id. at 225

(escorts were "shoved and hit by demonstrators trying to reach

the patients").

Workers were also subject to considerable verbal

harassment and abuse. Screaming protestors called clinic staff

"murderers," J.A. 153, 223, or "guards from Dachau," id. at 69,

and threw placards in their faces. /d. at 70. On one occasion,

as a nurse drove away from the clinic on her first day of work,

a picketer leaned into her car and called her a “baby-killing

bitch.” Jd. at 152.

The experience of clinic workers in Colorado is

comparable to that reported in the literature. In a recently

published study based on data collected in 1995, workers at

abortion clinics in a Southeastern state reported considerable

exposure to violence. Fitzpatrick & Wilson, Exposure to

Violence and Posttraumatic Stress Symptomatology Among

Abortion Clinic Workers, \2 J. Traumatic Stress 227 (1999).

Over 90% of the workers reported that they were yelled at by

protestors, over 50% were threatened and 18% were pushed or

shoved. /d. at 235. Six percent reported being punched,

slapped or kicked by protestors. /d Nearly three times as many

workers reported witnessing other workers being physically

assaulted than being victims themselves. /d

12

This extraordinary level of threats and violence against

clinic workers continues a longstanding trend. For example, a

1988 study found that the “continued harassment of abortion

providers and their patients is a problem that no other medical

care providers encounter." Henshaw, supra note 4, at 252.

Studies of clinic personnel have found that employee levels of

distress are highly correlated with protest activities at the

clinics, with the highest levels of distress typically being

reported by those who work at clinics experiencing the most

protest activities." Indeed, even health care providers who

have not suffered direct attacks experience heightened fear

when other providers are attacked, and are thus primed to take

seriously any implied or overt threats directed at them. Boyd at

57-58.

The present case graphically illustrates these effects.

Exposure to protest activities resulted in clinic staff members

and volunteers feeling threatened and intimidated, particularly

when surrounded by demonstrators at close range. J.A. 229.

One volunteer testified that serving as an escort “was a truly

frightening experience... . We were sorely afraid for our

physical safety." /d. at 90.

These adverse effects on health care providers also

adversely affect patient welfare. See J.A. 236 ("acts of violence

and threats of violence might be expected to create an

atmosphere of uncertainty and fear that can potentially affect

not only workers and their mental health status, but also the

work being performed"); Henshaw, supra p. 5, at 58

(harassment affects the ability of facilities to offer services). In

addition to driving experienced physicians out of the practice,

harassment and intimidation discourage younger physicians

"* Halvorson Boyd, Surviving a Holy War: How Health Care

Workers in U.S. Abortion Facilities Are Coping With Antiabortion

Harassment 72 (1990) ("Boyd").

13

from entering the field, thereby reducing the availability of

abortion services. Grimes, Clinicians Who Provide Abortions:

The Thinning Ranks, 80 Obstet. & Gynec. 719, 721 (1992).

Indeed, eleven percent of nonhospital providers have reported

that physician shortages and other staffing problems reduce

their ability to provide abortion services. Henshaw, supra p. 5,

at 59.

SUMMARY OF ARGUMENT

"The First Amendment protects the nght of every citizen

to ‘reach the minds of willing listeners and to do so there must

be opportunity to win their attention." Heffron v. Internationai

Soc'y for Krishna Consciousness, 452 U.S. 640, 655 (1981)

(quoting Kovacs v. Cooper, 336 U.S. 77, 87 (1949)). The

Colorado statute challenged here is constitutional precisely

because it provides petitioners and others ample opportunity to

reach the minds and attention of willing listeners, yet also

provides a narrow corridor of safe passage for unwilling,

captive listeners.

The record before the Colorado General Assembly

documents how persons seeking to enter or leave medical

facilities in Colorado are regularly confronted with aggressive,

harassing, and intimidating confrontations that. threaten their

health and safety. Because medical care can safely be provided

only in licensed medical care facilities, persons seeking to

receive or provide such care have no choice but to use the

entrances to these facilities. They cannot avoid these assaults

by walking away; they require the protection of the state.

Section 18-9-122(3) is a reasonable and narrow

response to this serious problem of public health and safety.

The only conduct it prohibits is a very close approach to an

unwilling listener near the entrance to a medical facility. It

14

ee — —

ee eee ——— i

permits protesters to approach up to eight feet from any person,

which is close enough to permit oral expression in normal

conversational tones, to display signs or literature, and to

capture the attention and mind of any interested person. By

guaranteeing all persons a narrow path to enter and leave a

medical facility without being surrounded, bullied, and

harangued at very close range, the statute minimizes the adverse

psychological and physiological impact, and consequent health

risks, that such close and threatening conduct poses for those

who seek to obtain and provide care at medical facilities.

ARGUMENT

The Colorado statute is content-neutral. It advances not

only significant but compelling state interests in protecting

health and safety that lie at the core of the state's police powers.

In so doing, it imposes only the most modest restriction on the

place where petitioners can position themselves, and one that is

entirely appropriate given the nature of a health care facility. It

is thus a reasonable restriction on the place of speech.

A. The Statute Regulates The Place, Not The

Content, Of Speech.

This Court has repeatedly made clear that the "principal

inquiry in determining content neutrality is whether the

government has adopted a regulation of speech ‘without

reference to the content of the regulated speech." Madsen v.

Women's Health Cir., Inc., 512 U.S. 759, 763 (1994) (quoting

Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). In

conducting that inquiry, the critical question is whether the

government is attempting to "regulate [speech] based on

hostility--or favoritism--towards the underlying message

expressed.” /d. (alteration in original) (quoting R.A.V. v. St.

Paul, 505 U.S. 377, 386 (1992)). In short, to assess content-

15

neutrality, the Court will "look to the government's purpose as

the threshold consideration." /d.

There is no evidence that any "invidious content- or

viewpoint-based purpose motivated" the Colorado legislature.

Id. Rather, Colorado's evident purpose was to further its

compelling interests in protecting the health and safety of its

citizens. Pet. App. 2Sa-26a. This statute secures for all citizens

a narrow pathway to the entrance of a medical facility, which

they can travel without fear of being accosted by a protester,

demonstrator, educator, or counselor. At the same time, the

statute permits petitioners and others to surround their targets

with signs, demonstrations, and armfuls of literature, and to

speak or scream whatever they wish.

The statute thus applies equally to, and permits, every

conceivable expression of viewpoint on any issue about which

a “viewpoint” might be had, including those that would be

deeply offensive and wounding to those hearing them. Neither

petitioners nor their amici contend that this facially neutral

statute promotes any concealed invidious motive. As the Court

reasoned in Madsen, the fact that the statute may cover "people

with a particular viewpoint does not render the [statute] content

or viewpoint based." 512 US. at 763; see Frisby v. Schultz,

487 U.S. 474, 482 (1988). Its only impact is to regulate the

place where such expression occurs.

Petitioners and their amici nevertheless assert that the

statute is content-based. Their sole explanation is that "the

content of oral speech must be taken into account in

determining whether the statutory ban is violated." Pet. Br. 31."

'? See ACLU Br. 10-11 (application of statute "clearly turns on the

content of what is being said", “inescapable need to refer to content in applying

(continued...)

16

That sweeping test is inconsistent, however, with the Court's

repeated focus on the justification and purpose of the

government's action, see Madsen and the cases cited therein,

and was squarely rejected in City of Renton v. Playtime

Theatres, Inc., 475 U.S. 41, 48-50 (1986). It is also

unsupported by the cases on which petitioner and their amici

rely. For example, petitioners recite the Court's statement that

"it is the content of the speech that determines whether it is

within or without the statute's blunt prohibition.” Pet. Br. 32

(quoting Carey v. Brown, 447 U.S. 455, 462 (1980)). But in

context, it is plain that the Court in Carey was concerned about

an ordinance that permitted speech on certain controversial

issues but not others. Carey v. Brown involved an ordinance

that "generally bar[{red] picketing of residences or dwellings,"

but created an exemption for peaceful picketing "on one

particular subject" -- labor disputes. 447 U.S. 455, 457, 461

(1980). The Court therefore found the ordinance comparable

to the one it had invalidated in Police Department of Chicago

v. Mosley, 408 U.S. 92, 95-96 (1972), because in each case the

government had "'select[ed] which issues are worth discussing

or debating in public facilities." Carey, 447 U.S. at 463

(quoting Mosley, 408 U.S. at 95-96). The Court thus did not

find the ordinance invalid merely because of an "inescapable

need to refer to content in applying it" (ACLU Br. 11) or

because "the content of oral speech must be taken into account

in determining whether the statutory ban is violated." Pet. Br.

31.

'°(. continued)

the Colorado statute"), AFL-CIO Br. 16 n7 (relying on Police Dep't of

Chicago v. Mosley, 408 U.S. 92 (1972)). We express no view on whether

petitioners may properly raise the issue of content-neutrality in this Court, cf

Pet. App. | la, 21a (petitioners did not argue content-neutrality issue before the

Colorado Supreme Court).

17

Here, unlike the statutes in Carey or in Mosley, the

Colorado statute does not select any issue for preferential (or

disfavored) treatment. It treats all expression of any viewpoint

on any issue uniformly. Indeed, the state contends that the

language of the statute is broad enough to reach any oral

expression, and that the Colorado Supreme Court may be held

to have adopted that view. Under such a construction (which

this Court also could adopt”’), any argument that the statute

embodies a content-based distinction evaporates.”'

To the extent the statute draws any line, it is between

expression of a view on any issue (which is covered) and

incidental oral expression, such as a greeting or an inquiry as to

time of day or for directions. Such a line does not select

between issues, but rather carves out an exception for the sort

of non-threatening, presumptively consented-to interactions that

contain no substantive issue-related content whatsoever.

Because that line reflects only the legislature's proper purpose

to minimize the intrusion of the ordinance on speech, rather

than any "invidious content- or viewpoint-based purpose" to

promote or suppress one viewpoint or issue at the expense of

another, the statute is content-neutral. Madsen, 512 U.S. at

763.

® See Frisby v. Schultz, 487 U.S. 474, 482-83 (1988), United States

v. Grace, 461 U.S. 171, 176 (1983).

*' Such a construction would not result in an overly broad statute.

Although the statutory reference to "oral protest, education, or counseling”

would, on this construction, cover oral inquiries about the time of day or for

directions, the statute would not operate in practice to prohibit or punish them.

Such innocuous, unthreatening inquiries are presumptively ones to which any

person would, and may be deemed to, consent.

18

B. The Statute Serves Compelling Government

Interests.

A content-neutral statute, such as the Colorado statute

challenged here, must serve a significant governmental interest.

Ward v. Rock Against Racism, 491 U.S. 781, 796 (1989);

Burson v. Freeman, 504 U.S. 191, 197 (1992). The Colorado

statute easily satisfies this test. It serves two broad interests,

each of which is fundamental to the state's exercise of its

historic police power.

First, the statute serves the state's interest in protecting

the health of its citizens by ensuring them reasonable access to

health care facilities. The Colorado General Assembly identified

this interest in the first section of the statute (see Colo. Rev.

Stat. § 18-9-122(1)), and the Colorado Supreme Court relied

upon it in upholding the statute. Pet. App. 26a. The

compelling need for protective regulation at the entrances to

health care facilities was dramatically set forth in testimony

before the General Assembly; that testimony, in turn, is fully

consistent with evidence, reports, and findings from researchers

and proceedings nationwide of the significant threat to public

health posed by demonstrations, protests, and counseling at

close range to patients near the entrance to medical facilities.

See pages 6-11, supra. For example, such activities deter

patients from entering the facilities and delay treatment;

discourage staff from continuing to work at the facilities; and

traumatize those patients who do enter the building, all of which

serves to increase the risks of adverse outcomes from the

treatment. /d.

Second, the statute promotes the state's interest in

protecting the safety of its citizens. The record before the

Colorado General Assembly was replete with testimony about

“hostile, and sometimes violent confrontations" near the

19

entrances to health care facilities. Pet. App. 6a. The testimony

described incidents of physical assaults, intimidation, and threats

that made patients fear for their physical safety, and that

occurred in the midst of such a crush of demonstrators that

identifying particular perpetrators was difficult. E.g., J.A. 93-

95, 159, 218-30. It is a basic function of state government to

respond to a pattern of conduct that threatens the personal

safety of its citizens.

Petitioners concede that these are significant

government interests. See Pet. Br. 35, Pet. App. 25a-26a; see

also ACLU Br. 9 ("There is no doubt that the state has a

significant government interest in ensuring that women (and

men) have unimpeded access to health care facilities"). Even

though the legal point is conceded, these interests ought not be

glossed over, for they are not only significant, but compelling.

The state's interest in regulating speech that threatens

health and safety near the entrances of medical facilities is

compelling because individuals are not free to walk away from

that speech. Those entrance areas are choke points. Sidewalk

counselors and other demonstrators know that individuals

seeking to obtain or provide medical care must use them; it

precisely for this reason that they target these areas for their

abusive activity. The targeted individuals cannot avoid the

documented adverse medical consequences and invasion of

medical privacy by going elsewhere, nor can they avoid the

sense of fear or terror of a potential physical assault when

sidewalk counselors and others are free to accost, surround,

harangue, and scream at them at close range as they attempt to

enter a medical facility.

An individual seeking to receive or provide medical

attention is thus a classic captive audience. This Court has

made clear that states have an overriding interest in regulating

20

offensive or coercive speech imposed upon a captive audience.

In Lehman v. City of Shaker Heights, for example, the Court

upheld a content-based ban on political advertising in the public

transit system because:

"(t]he streetcar audience is a captive audience

It is there as a matter of necessity, not of

choice." Public Utilities Comm'n v. Pollak, 343

U.S. 451, 468 (1952) (Douglas, J., dissenting)

In such situations, "[the] legislature may

recognize degrees of evil and adapt its

legislation accordingly." Packer Corp. v. Utah,

285 US. [105,] 110 [(1932)].

418 U.S. 298, 302 (1974). See also Rowan vy. United States

Post Office Dep't, 397 U.S. 728, 738 (1970) ("That we are

often ‘captives’ outside . . . the home and subject to

objectionable speech and other sound does not mean we must

be captives everywhere."). Moreover, unlike the captive

audience on the streetcar, an individual seeking medical care,

particularly medical care relating to reproductive matters, has

important interests in privacy and anonymity,” and is

"practically helpless to escape th[e] interference with his [or

her] privacy" (Kovacs v. Cooper, 336 U.S. 77, 87 (1949)) that

results from conduct such as that in which petitioners seek to

22 Cf Thornburgh v. American College of Obstetricians &

Gynecologists, 476 U.S. 747, 767 (1986) (invalidating reporting requirements

because they “raise[d] the specter of public exposure and harassment of

women who choose to exercise their personal, intensely private, nght, with

their physician, to end a pregnancy"), Bellotti v. Baird, 443 U.S. 622, 655

(1979) ("[i}t is inherent in the nght to make the abortion decision that the nght

may be exercised without public scrutiny and in defiance of the contrary

opinion of the sovereign or other third parties") (Stevens, J., concurring in

judgment).

21

engage.’ In numerous cases, the Court has upheld bans on

speech, including picketing targeted at a person's home, the use

of sound trucks in residential neighborhoods, and indecent

language over the radio waves, because the means of

communication and the content of the speech itself invaded

substantial privacy interests in an inescapable and intolerably

intrusive manner. See Frisby, 487 U.S. at 484-85; Kovacs, 336

U.S. at 86-87; FCC v. Pacifica Found., 438 U.S. 726, 748-49

(1978), Rowan, 397 U.S. at 738. The state's interest is

particularly compelling here, therefore, because it seeks to

protect individual interests in privacy and anonymity, as well as

health and safety, in a context in which individuals, absent state

intervention, are unable acting alone to protect those interests.

C. The Statute Is Reasonably Tailored To

Protect The State Interests At Stake And

Leaves Open Ample Alternative Channels Of

Communication.

Finally, the Court must examine "the fit between the

[objectives of the statute] and the restrictions it imposes on

speech... ." Madsen, 512 U.S. at 765. The test for a content-

neutral restriction on the time, place, and manner of speech is

well-established. Such a statute must be reasonably tailored to

serve a significant governmental interest, and must leave open

ample alternative channels of communication. Ward, 491 U.S.

at 796; Burson, 504 U.S. at 197.

Petitioners and their amici quarrel with this Court's

holding in Madsen that "a somewhat more stringent application

** This is particularly true in the case of abortion, which is not a

widely offered procedure. Henshaw, supra note 4, at 252. Indeed, nearly ten

percent of women who obtain abortions must travel more than 100 miles to do

so. Id.

22

of general First Amendment principles” applies to review of an

injunction as opposed to "a generally applicable ordinance."

$12 US. at 764-65. But they offer no arguments in support of

their disagreement that were not considered, and rejected, by

the Court in Madsen. Compare Pet. Br. 26-27 n.18 and ACLU

Br. 8 with Madsen, 512 US. at 764-67.

Moreover, their arguments overlook the fact that while

Madsen posited a statute that merely promoted "particular

societal interests,” id at 764, the statute at issue here promotes

interests that lie “at the core of the State's police power."

Kelley v. Johnson, 425 U.S. 238, 247 (1976). The exercise of

police power to protect public health and safety has historically

been a matter for state concern, Hillsborough County v

Automated Med. Labs., Inc., 471 U.S. 707, 719 (1985), and

consequently the "'States traditionally have had great latitude

under their police powers to legislate so as to protect the lives,

limbs, health, comfort, and quiet of all persons." Medtronic,

Inc. v. Lohr, 518 U.S. 470, 475 (1996) (quoting Metropolitan

Life Ins. Co. v. Massachusetts, 47\ U.S. 724, 756 (1985))

Thus, a state should be permitted significant latitude to impose

time, place, and manner restrictions that further its core

interests.

In any event, the statute here is so narrowly tailored, and

leaves open so many channels of communication, that it would

pass muster even under far stricter scrutiny than is appropriate

to this content-neutra! exercise of police power. Despite their

best efforts, petitioners and their amici fail to identify any

significant limitation on expressive activity that flows from the

statute they challenge. Their case is grounded only in rhetoric

and in repeated invocations of First Amendment formalisms, not

in real threats to freedom of speech.

23

The statute has so many speech-preserving limitations

that they are difficult to summarize in a single sentence. But in

general, the only activity the statute prevents petitioners from

conducting is knowingly approaching closer than eight feet to

someone who is within 100 feet of the entrance to a medical

facility Even that modest place-restriction is not absolute

Petitioners can be closer than eight feet so long as they are

Standing or sitting still, moreover, petitioners can even

knowingly approach closer than eight feet, so long as their

target consents and, beyond 100 feet from the entrance to the

healthcare facility, no restrictions apply at all.

The statute thus permits petitioners and others to be

close enough to speak to their targeted audience in normal

conversational tones, if they so choose, or to scream and yell

(and be understood to be screaming and yelling), if they prefer.

It also permits them to display posters at close range that can

easily be seen by the target audience. And it permits them to

display and make available handbills within two or three steps

of any passerby, and to approach and hand them to any person

who signals that he or she wants them. These not only are

"ample alternative channels of communication," but also they

represent virtually every conceivable non-coercive channel of

communication that petitioners could use outside a medical

facility.

What is foreclosed? Petitioners dramatically claim that

“all handbilling within one hundred feet of the entrance doors

to every Colorado health care facility would be banned under

the statute." Pet. Br. 43 (emphasis in original). That is not so.

It may be that the statute "precludes handbilling in its normal

sense” by forbidding unconsented approaches (AFL-CIO Br. 7),

but the consequent intrusion on First Amendment values, if any,

is very slight. The First Amendment gives no one the right to

place a handbil! in someone else's hand. Kovacs, 336 US. at

24

87 (passer-by “may be offered a pamphlet in the street but

cannot be made to take it.").

The only question with respect to handbilling, therefore,

is whether it is unconstitutional, near the entrance to a medical

facility, to make mobile handbillers stay eight feet away from

unwilling recipients o{ _ andbills. It plainly is not. Indeed, the

Court has upheld a far more restrictive place-regulation, which

prevented any distribution of "printed or written material” at a

fairgrounds except from a “'duly licensed location.” Heffron v.

International Soc'y for Krishna Consciousness, 452 U.S. 640,

643 (1981) (quoting Minnesota State Fair Rule 6.05).

Moreover, the Court upheld that more restrictive ban on

handbilling because it furthered the state's interest in avoiding

"widespread disorder at the fairgrounds", that interest, while

significant, is far less compelling than the documented need to

protect health and safety immediately outside of medical

facilities that led the Colorado General Assembly to enact this

Statute.

The Colorado statute is also far more narrowly tailored

than the 300-foot no-approach zone struck down in Madsen.

See Pet. Br. 26. Far from banning any undefined “approaches”

within a broad 300-foot area in front of an entrance, the

Colorado statute permits approaches up to eight feet from any

person, and thereby allows the kind of "peaceful" contact that

the broad and ambiguous Madsen injunction foreclosed.

Madsen, 512 U.S. at 774. Indeed, the Colorado statute allows

much closer approaches than the "cease and desist" provision

upheld in Schenk v. Pro-Choice Network of Western New York,

which required protesters to withdraw to a distance of 15 feet

from those who did not consent to their approach. 519 US.

357, 384 & n.12 (1997). Similarly, because a protester can

comply with the Colorado statute simply by standing still, and

because the statute has a scienter requirement that prohibits

25

only knowing approaches, the statute's narrow 8- foot buffer is

also far more clearly defined and easy to comply with than the

vague |5-foot buffer that was "quite difficult for a protester" to

"know how" to comply with, and that was therefore struck

down in Schenk. Id. at 378.

The modest limitation on handbilling imposed by the

statute is thus fully consistent with, and more narrow than,

other limitations that the Court has previously upheld. And

apart from that limitation, neither petitioners nor their amici

identify any other specific impact on their ability to speak. The

Court will search their bnefs in vain for any concrete description

of the significant, unnecessary restrictions on speech that they

claim the statute imposes. The reality is that anything that they

wish to say to someone immediately outside the entrance to a

health care facility can be said as easily from eight feet away as

from one, and any sign that they wish to display can be seen as

easily from eight feet as from one. Indeed, the record suggests

that petitioners’ messages are more effective when delivered at

an even greater distance ** The Colorado statute thus grants all

persons ample “opportunity to win [the] attention" of those near

clinic entrances and to "reach the minds of willing listeners"

with words, signs, and even handbills. Kovacs, 336 U.S. at 87.

The Constitution requires no more.

** Research has shown that cognitive performance is decreased

during a “personal space invasion,” 1.¢., “when an encroacher violates the

norms of interpersonal distance by approaching too closely where the subject

does not expect or desire to interact with the potential invader.” J.A. 286-87

(citing Worchel et al. (1976 & 1979)). In a study comparing persuasive,

verbal communication at distances of two feet, six feet and fifteen feet, fifteen

feet was found to be the “optimal distance for changing someone's attitude.”

Id. at 287 (citing Albert & Dabbs (1970)). “At closer distances, the

parucipants seemed distracted by the presence of the persuader because they

felt unduly pressured.” /d.

26

Rather than point out concrete restrictions, petitioners

and amici offer abstract complaints about overbreadth. First,

petitioners note that the statute is not limited to those entering

or leaving a health care facility, but extends to "every human

being within 100 feet of the entrance to any health care facility

in Colorado." Pet. Br. 40. While that is true, there is also no

evidence that it is significant. The number of affected people is

likely to be small (because few who are not seeking to enter or

leave the facility are likely to come near the entrance during a

demonstration), and petitioners are free to approach those who

do once they pass further than 100 feet from the entrance

(which they will do since these are individuals who, by

hypothesis, are not seeking to enter the facility).

Second, petitioners and amici note that the statute

applies to all protesters, regardless of whether they previously

have been found guilty of violating the law or whether their

actual up-close solicitations would be perceived by a patient to

be intimidating or hostile or would serve to impede their access

to the facility. Pet. Br. 41 n.33; ACLU Br. 22; AFL-CIO Br.

10-11. Such scope, however, is inherent in any effort to

address a threat to public health and safety through legislation

rather than injunction. Moreover, the record contains ample

evidence to support the state's concern that, however well-

intentioned petitioners or others may believe themselves to be,

their zealousness in wishing to intercept their targets near clinic

entrances, and their dogged persistence in providing unwanted

counseling at the closest possible range without physically

blocking a person's progress toward the door, creates a distinct

and significant threat to public health and safety”

> Cf American Steel Foundries v. Tri-City Cent. Trades Council,

257 U.S. 184, 204 (1921) ("the accosting by one of another in an inoffensive

way and an offer by one to communicate and discuss information with a view

(continued...)

27

Finally, petitioners and their amici argue that section 18-

9-122(3) is superfluous because the statute "already deals with

obstruction in another section." ACLU Br. 22; see Pet. Br. 42

(citing Colo. Rev. Stat. § 18-9-122(2), which outlaws conduct

by a person who "knowingly obstructs, detains, hinders,

impedes, or blocks another person's entry to or exit from a

health care facility"). But the two provisions do not overlap,

they are complementary and mutually reinforcing. As another

of petitioner's amici points out, "there is nothing intrinsically

obstructive in the leafletting, handbilling, sign display, and oral

protest modes of communication at less than eight feet from the

intended addressee." AFL-CIO Br. 13. The record before the

Colorado General Assembly shows that such modes of

communication, at less than eight feet from the intended

addressee, have tended to intimidate, harass, and upset persons

attempting to enter or leave health care facilities, and it is clear

that such conduct adversely affects patient health and the ability

of health care professionals to treat patients. See pages 6-11,

supra. The record also reflects the Assembly's concern that

attempts to enforce a law more narrowly limited to only those

non-obstructive approaches that had the effect of intimidating

or harassing an individual would be difficult to enforce given the

swirling crowds that result when groups of protesters generally

are permitted closely to approach unwilling, captive listeners.

See J.A. 117, 124-25.

**(__ continued)

to influencing the other's action are not regarded as aggression or a violation

of that other's nghts. If, however, the offer is declined, as it may rightfully be,

then persistence, importunity, following and dogging become unjustifiable

annoyance and obstruction which is likely soon to savor of intimidation. From

all this the person sought to be influenced has a right to be free... .”).

28

.

ee

eee cg le OE -

AO ee ae,

At bottom, petitioners’ and their amici’s concerns about

improper tailoring are unpersuasive because they fail to take

seriously (or for the most part even to discuss) the state's

exceptional interest in ensuring citizens safe passage into and

out of every health care facility. "The crucial question is

whether the manner of expression is basically incompatible with

the normal activity of a particular place at a particular time."

Grayned v. City of Rockford, 408 U.S. 104, 116 (1972), see id.

at 120 (noisy demonstration incompatible with school

activities); Frisby, 487 U.S. at 480-81 (focused picketing

incompatible with tranquility of private residence), United

States v. Kokinda, 497 U.S. 720, 732 (1990) (solicitation

incompatible with business of post office); Adderley v. Florida,

385 U.S. 39, 47 (1966) (demonstration incompatible with jail

grounds); Cox v. Louisiana, 379 U.S. 559, 562 (1965)

(picketing incompatible with administration of justice at

courthouse).

Conduct that interferes with the safe and effective

provision of medical services is fundamentally incompatible with

the nature and function of a medical facility. Indeed, amici

submit that the nature of a medical facility raises public health

and safety concerns that match or exceed the interests

implicated in the public school, post office, jail, courthouse, or

public bus settings.* See NLRB v. Baptist Hosp., Inc., 442

U.S. 773, 781-85 (1979), see id. at 791 (Burger, CJ,

concurring in judgment) ("I would think no ‘evidence’ is needed

to establish the proposition that the primary mission of every

© That the activities in question are conducted in the traditional

public forum of a sidewalk is not dispositive. This Court has upheld

restrictions on expressive conduct on sidewalks that is incompatible with the

normal activity of a parucular place adjacent to the sidewalk. See Frisby, 487

US. at 480-81, Burson v. Freeman, 504 U.S. 191, 197 (1992), Grayned v.

City of Rockford, 408 U.S. 104, 115-17 (1972).

29

hospital is care and concern for the patients and that anything

which tends to interfere with that objective cannot be

tolerated"); Roe v. Wade, 410 US. 113, 150 (1973)

(government has a compelling interest in seeing that any medical

procedure is performed under circumstances that insure

maximum safety for the patient); Beth /srael Hosp. v. NLRB,

437 US. 483, 509 (1978) (Blackmun, J., concurring in

judgment), Dallas County Hosp. Dist. v. Dallas Ass'n of

Community Orgs. for Reform Now, 459 U.S. 1052, 1052-55

(1982) (Rehnquist, C.J., dissenting from denial of certiorari).

The statute here, which is aimed directly at promoting patient

welfare and reducing medical risk, and which only narrowly

restricts the place where protesters can stand to express

themselves and in no other way limits their ability to attract the

attention of listeners, is a reasonable and measured response to

a serious public health problem. It should therefore be upheld

as constitutional.

CONCLUSION

For the reasons stated above, the decision of the

Colorado Supreme Court should be affirmed.

30

Ann E. Allen

American College of

Obstetricians and

Gynecologists

409 12th Street, S.W.

Washington, D.C. 20024

(202) 638-5577

Michael L. Ile

Leonard A. Nelson

American Medical

Association

515 North State Street

Chicago, IL 60610

(312) 464-4600

Respectfully submitted,

Carter G. Phillips

Mark E. Haddad*

Lee L. Auerbach

Sidley & Austin

1722 Eye Street, N.W.

Washington,D.C. 20006

(202) 736-8000

*Counsel of Record

Counsel for Amici Curiae

December 13, 1999

APPENDIX

H-5.997 Violence Against Medical Facilities and Health

Care Practitioners and Their Families

The AMA supports the right of access to medical care and

opposes (1) violence and all acts of intimidation directed against

physicians and other health care providers and their families and

(2) violence directed against medical facilities, including

abortion clinics and family planning centers, as an infringement

of the individual's right of access to the services of such centers.

(Res. 82, 1-84, Reaffirmed by CLRPD Rep. 3-1-94; Res. 422,

A-95)