Sidewalk Counseling: Still a Constitutional Right


Walter Weber


Free Speech Advocates

Pro-life individuals have saved countless babies and their mothers from the horror of abortion by means of "sidewalk counseling." Sidewalk counselors stand outside abortion facilities where they greet arriving women and their companions. Counselors use spoken words and printed literature to provide information about abortion risks and alternatives, with a view to helping the expectant mother to choose life for her unborn child.

Effective sidewalk counseling can save many children from the abortionist's knife. This means less profit for the abortion mill. As a result, many abortion businesses have resorted to schemes to harass sidewalk counselors such as making false accusations to the police, employing pro-abortion "escorts" to block, mock and interfere with counselors, and filing lawsuits seeking injunctions or damages against counselors.

More recently, the U.S. Congress passed a law—the so-called "FACE" bill -- specifically targeting pro-life protests. Then the U.S. Supreme Court, in the Madsen case, upheld a "speech-free zone" excluding pro-life individuals from the sidewalk outside a Melbourne, Florida abortion mill. These developments have caused many law-abiding pro-life citizens to fear that they no longer have the right to engage in sidewalk counseling.

In Madsen v. Women's Health Center, Inc., the U.S. Supreme Court reviewed an injunction restricting pro-life activities in Melbourne, Florida. The Court's decision, announced on June 30, 1994, upheld some restrictions and struck down others. Several portions of the decision are of particular relevance to sidewalk counselors:

1. The Court struck down a ban on "approaching any person seeking the services of the Clinic unless such person indicates a desire to communicate by approaching or inquiring of the respondents." This means a ban on sidewalk counseling is unconstitutional.

2. The Court struck down a ban on "observable images," rejecting the abortion businesses' attempt to prohibit "disagreeable" images such as graphic pictures or strongly worded messages on signs.

3. The Court upheld a "speech-free zone" on the public sidewalk adjacent to an abortuary but struck down a similar zone extending onto private property. The Court reasoned that where protesters have repeatedly used public places to engage in unlawful obstruction of access, the protesters may be excluded from those places. Where the protesters have not blocked access, however, a "speech-free zone" is unconstitutional.

In sum, Madsen reaffirms that sidewalk counseling is a constitutional right but warns that those who persistently break the law may find themselves excluded from the sidewalk where they wish to counsel.

Sidewalk counseling = free speech

Is sidewalk counseling a constitutional right?

Yes. The First Amendment to the U.S. Constitution protects the "freedom of speech." The Supreme Court has repeatedly ruled that peaceful communication —such as spoken words, display of a sign, and leafleting—are all protected forms of free speech, especially in public places like sidewalks and parks.

What if somebody tells me to "shut up" or go away?

The right to free speech in public places does not depend upon the consent of the listeners. Otherwise hecklers could silence any unpopular speaker. The Supreme Court has consistently ruled that speech cannot be censored simply because the speaker's message irritates or offends a listener. In fact, the Supreme Court has even mentioned the phrase, "Abortion is Murder," as an example of free speech.

The so-called Freedom of Access to Clinic Entrances (FACE) Act, which President Clinton signed into law on May 26, 1994, does not prohibit sidewalk counseling. FACE makes it a federal offense when someone "by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with" any person because that person is "obtaining or providing reproductive health services." FACE specifically exempts "any expressive conduct (including peaceful picketing or other peaceful demonstration) protected... by the First Amendment...."

A sidewalk counselor who uses neither force, nor threats of force, nor physical obstruction, does not violate FACE.

Sidewalk counseling remains a constitutional right. There is of course no guarantee that sidewalk counselors will never face harassing lawsuits or false charges. Nevertheless, the person who carefully obeys the law while sidewalk counseling can minimize the chance of legal problems while continuing to reach out to help mothers and their babies.

Sidewalk Counseling is still an important part of the pro-life apostolate.

P-- We make ourselves PRESENT at the place where babies are aborted. There we PRAY for them, for their parents and all involved in performing the abortions that day.

I -- INFORMATION is offered to the parents as they enter the abortuary. This INFORMATION tells the truth about abortion, about the unborn child that is aborted, about the effect of abortion on the mother and offers

A -- ALTERNATIVES to the death of that child.

Sidewalk counselors have the right to free speech and exercising this right can save babies from abortion. But we also believe that for those babies who are not saved, our human presence and our prayers give their short life something of the dignity a human person deserves.

A Letter from a Grateful Mom:

Dear Sidewalk Counselor,

Sorry it took me so long to write. I wanted to wait until I got my baby boy's pictures back. His name is D and he weighed 7 lbs., 3 ozs. and was 21 inches long. My parents flipped at first, but now that he's here he is the best thing that ever happened to them. I will be starting college next semester to become a lawyer.

D is the best thing that ever happened to me and I have all of you to thank for it. J (her husband) is doing fine and he sends his thanks also. I have sent a photo of the miracle that you helped create.

Thanks. We love you,


For more information write:

Catholics United for Life
New Hope, KY 40052

Copies of this pamphlet are available for $8 per 100. Write to:

Catholics United for Life
New Hope, KY 40052


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