Supreme Court puts anti-abortion speech above abortion patient safety

Eleanor McCullen stands in December behind a yellow line outside a Boston Planned Parenthood clinic marking the 35-foot perimeter that anti-abortion protesters had to observe. On Thursday the Supreme Court unanimously struck down the perimeter as an unconstitutional limitation on free speech.
(Steven Senne / Associated Press)

You probably have to spend some time in front of an abortion clinic to really get a sense of the tension and passion at play between anti-abortion protesters who masquerade as “sidewalk counselors” and the women with unwanted pregnancies who turn to such places at what is never a happy moment in their lives.

Even when a scene appears peaceful there is a fraught subtext to the dynamic, thanks to the appalling acts of violence that anti-abortion extremists have unleashed on doctors, staffers and patients at these places over the years. Since 1977, according to the National Abortion Federation, there have been eight murders, 17 attempted murders, 42 bombings and 181 incidents of arson, plus thousands of other acts of criminality.

Today, the Supreme Court sidestepped all that context and unanimously struck down a Massachusetts law that created a 35-foot buffer zone around abortion clinics, finding the law at odds with the 1st Amendment’s guarantee of free speech. Back in 2000, the court upheld a Colorado law that created an 8-foot bubble around people entering abortion clinics, but the Massachusetts law, it said, was simply too restrictive.


The court suggested, essentially, that Massachusetts go back to the drawing board, and create something more akin to the federal Freedom of Access to Clinic Entrances Act, the 1994 measure signed into law by President Clinton that imposes criminal sanctions for “obstructing, intimidating or interfering” with people obtaining or providing reproductive healthcare. (Seven months after Clinton signed the legislation, an abortion foe named John Salvi opened fire in two Boston-area abortion clinics, killing two clinic staffers and wounding five other people.)

Last December, in a statement commemorating the 20th anniversary of those shootings, Megan Amundson, executive director of NARAL Pro-Choice Massachusetts, said that before the buffer zone law was passed, “protesters regularly blocked access to clinics’ front doors, physically put hands on patients and employees and photographed or videotaped into the cars of both patients and clinic staff entering and leaving …. Since the passage of the buffer zone, clinics in Massachusetts have not seen a decrease in protesters, but have seen a dramatic decrease in violence and intimidation of women entering clinics.”

The 35-foot buffer may have cut down on physical harassment, but it also muted the work of “sidewalk counselors” like the case’s lead plaintiff, 77-year-old anti-abortion activist Eleanor McCullen. McCullen stationed herself outside a Boston Planned Parenthood Clinic and tried to talk women out of having abortions by talking to them in an unthreatening, compassionate manner.

Having to raise her voice to be heard, McCullen said, was at odds with what she has professed to be her gentle message of concern to women with unwanted pregnancies: “Good morning, may I give you my literature? Is there anything I can do for you? I’m available if you have any questions.”

Is that a privacy invasion? Well, of course it is, and that’s exactly what it’s meant to be.

But is it harassment? The court doesn’t think so, though I don’t think anyone can objectively answer that question. It could certainly be experienced as harassment by someone who is emotionally vulnerable. Still, McCullen claims to have personally talked some 80 women out of having abortions since the law was passed in 2007, so I can understand why she has persisted.

The court was not impressed with the commonwealth’s argument that buffer zones help reduce chaos outside abortion clinics, and would make life easier for local police. “Of course they would,” wrote Chief Justice John G. Roberts Jr. in his opinion for the court. “But that is not enough to satisfy the 1st Amendment.”

(Meanwhile, Justice Antonin Scalia was furious that his colleagues did not find the very concept of abortion clinic buffer zones illegal. The cranky justice wrote a separate concurrence because “I prefer not to take part in the assembling of an apparent but specious unanimity.”

Buffer zones, he said, are not content-neutral restrictions on speech and are therefore unconstitutional. They suppress anti-abortion speech, he said, while allowing pro-abortion speech. He cited the hypothetical example of a clinic escort telling a patient, “You are doing the right thing,” while accompanying her from a protester-filled sidewalk into a clinic. The court, Scalia said, had created an “abridged edition of the 1st Amendment applicable to speech against abortion.” )

From a strictly free-speech point of view, I can appreciate the court’s decision. But let’s be clear about what it does: It relegates women seeking abortions, and those who work at abortion clinics, to a kind of second-class constitutional status. Protecting them from violence and harassment as they exercise their constitutional right to end a pregnancy is, on balance, less important than the free speech rights of people who oppose them.

The ACLU, which filed a friend-of-the-court brief in support of neither side but supported the buffer zone, agrees with me on this point.

“This is a hard case and the majority opinion reflects the difficulty and importance of balancing two constitutional rights: the right of women to enter and leave abortion clinics free from the harassment, intimidation and violence they have too often suffered in the past; and the right of peaceful protestors to express their opposition to abortion on the public streets outside abortion clinics,” ACLU legal director Steven R. Shapiro said in an emailed statement. “We agree that a fixed buffer zone imposes serious 1st Amendment costs, but we also think the court underestimated the proven difficulty of protecting the constitutional rights of women seeking abortions by enforcing other laws — especially regarding harassment — outside abortion clinics.”

Constitutionally speaking, the court said, sidewalks are special places “because of their historic role as sites for discussion and debate.”

“Even today,” Roberts wrote, “they remain one of the few places where a speaker can be confident that he is not simply preaching to the choir …. With respect to other means of communication, an individual confronted with an uncomfortable message can always turn the page, change the channel or leave the website. Not so on public streets or sidewalks. There, a listener often encounters speech he might otherwise tune out.”

(Two asides: Would it have killed him to use a feminine pronoun? Also, the justices know very well that speech is muffled in the service of averting potential violence all the time. Earlier this term they ruled that the Secret Service was right to remove a political protester from the vicinity of President George W. Bush. They said it was permissible for the Air Force to ban an anti-war protester from the “free speech” area at Vanderburg Air Force Base. And at political conventions for almost 20 years political protesters are kept far away from delegates, confined to Orwellian, fenced “free speech” pens that may as well be in Siberia.)

Not a great day for those who favor reproductive rights, and privacy. The very notion of a stranger approaching to tell a woman expressly or by implication that her medical decision is bad or immoral is offensive and wrong.

Look at it this way: Would you want someone outside your pediatrician’s office telling you and your children as you bring them to an immunization appointment that vaccinating them will cause them to contract autism and retardation? Would that person’s right to free speech trump your right to access medical care without harassment?

Yeah, didn’t think so.

I will respect your privacy if you follow me on Twitter: @robinabcarian