The Supreme Court has unanimously struck down a Massachusetts law that barred pro-life protesters from going within 35 feet of an abortion clinic. The ruling confirms what we've always known about America's longest-running culture war: You may have a...
Photo by Survivors of the Abortion Holocaust via Facebook
On Thursday morning, the Supreme Court unanimously ruled to strike down a Massachusetts law creating protest-free “buffer zones” around abortion clinics. This ruling was a solid win for free speech—and the pro-life zealots and militant teenagers who spend their days lurking around Planned Parenthoods trying to convince women entering that they are about to make a huge mistake.
The case, McCullen v. Coakley, revolved around a 2007 state statute that made it illegal for abortion opponents to go within a 35-foot radius of an abortion clinic. The law expanded on previous restrictions. It was passed in large part because clinics in Massachusetts and across the country spent most of the 90s and early aughts under siege by pro-life protesters, whose tactics for stopping abortion ranged from aggressive harassment and intimidation to straight-up terrorism. Supporters of the law, perhaps understandably, claim that the buffer zones are necessary to protect the safety of clinic workers and patients. But anti-abortion activists say that the law violates their First Amendment right to free speech, specifically their right to quietly talk to strangers about unborn children.
In a surprisingly narrow ruling, the court agreed that the Massachusetts buffer zone law infringes on the constitutional rights of abortion opponents, but acknowledged that the state also has a legitimate interest in protecting abortion services. Basically, the ruling says that states can pass laws ensuring clinic safety and access, but not at the expense of the First Amendment. The Massachusetts buffer zone law goes too far, the court said, burdening “substantially more speech than necessary to achieve the Commonwealth’s asserted interests.”
The state asserts “undeniably significant interests in maintaining public safety on [its] streets and sidewalks, as well as in preserving access to adjacent healthcare facilities,” Chief Justice John Roberts elaborated in the majority opinion. “But here the Commonwealth has pursued those interests by the extreme step of closing a substantial portion of a traditional public forum to all speakers.”
Noting that Massachusetts is the only state to impose a blanket 35-foot buffer around all abortion clinics, the court points out that other states have figured out ways to address concerns about access to abortion that don’t put such a heavy burden on free speech. “A painted line on the sidewalk is easy to enforce, but the prime objective of the First Amendment is not efficiency,” Roberts writes.
Interestingly, the court’s ruling seems to particularly focused on protecting the rights of “petitioners” like 77-year-old Eleanor McCullen, the lead plaintiff in the buffer zone suit, who has been described as a “grandmotherly” activist who stands outside Boston abortion clinics and quietly tries to persuade women not to go inside. In his opinion, Roberts emphasizes the difference between this type of “sidewalk counseling” and the more violent, aggressive protests that the buffer zones are designed to contain.
McCullen, he writes, “will typically initiate a conversation this way: ‘Good morning, may I give you my literature? Is there anything I can do for you?’”
“Petitioners are not protestors,” he adds. “They seek not merely to express their opposition to abortion, but to inform women of various alternatives and to provide help in pursuing them. Petitioners believe that they can accomplish this objective only through personal, caring, consensual conversations. And for good reason: It is easier to ignore a strained voice or a waving hand than a direct greeting or an outstretched arm.”
For abortion supporters, it’s tempting to dismiss McCullen as a red herring, a cozy decoy that masks the real menace of abortion clinic protesters. But sidewalk counseling is actually one of the primary strategies of the grassroots anti-abortion movement. Activists like McCullen are a constant—and often the only—anti-abortion presence in front of many facilities. The goal, according to activists, is not to scare clinics out of business. They are trying to take advantage of women who may be having doubts about their abortion choice and convince them that having the baby is a better option.
“The people that are out there at the abortion clinics are out there to help women,” said Cheryl Sullenger, the senior policy advisor for Operation Rescue, one of the more militant grassroots pro-life groups that essentially serves as a training camp for pro-life activists. “They don’t want to attack anyone.”
Tactics vary: In Albuquerque, for example, an ancient activist named Phillip spends most afternoons perched on a ladder behind the parking lot of an abortion clinic. When women enter or exit the clinic, he pops up above the fence and asks if he can say a rosary. The effect is jarring and deeply weird—but Phillip obviously isn’t there to hurt anyone. Others are more proactive: “I ask women who are going into a clinic why they want to have an abortion,” Lauren Handy, a 19-year-old activist from Virginia told me. “And then I try to figure out how else we can solve the issue—sometimes they’re in a bad relationship, sometimes it’s about money. Sometimes they just need someone to tell them that they can.”
Pro-choice groups generally don’t see any difference between “sidewalk counselors” and other, more aggressive activists, lumping together any one with a rosary and a bloody fetus photo as a potentially violent threat. The impulse is understandable: After four decades of clinic bombings, death threats, and murders—including the 1994 shooting spree at two Massachusetts abortion facilities, and more recently, the assassination of Wichita abortion doctor George Tiller in 2009—abortion rights activists have probably earned the right to be skittish.
“This movement has a long history of violence,” Ilyse Hogue, president of NARAL Pro-Choice America said in response to the Supreme Court’s ruling Thursday. “Let's be clear: [the] decision puts women and healthcare providers at greater risk. We will work to make sure that legislatures in states are focused on making clinics safe for women free of harassment, intimidation, and violent acts."
The truth is, though, the pro-life movement has developed much more sophisticated tactics for shutting down clinics than barricading doors and gunning down abortion doctors. Since 2011, there have been at least 73 clinic closures in the US. About half of these closures were caused by new state laws designed to limit access to abortion, according to Bloomberg data. By contrast, there is little evidence that protesters are actually driving people away from abortion clinics.
In that sense, Thursday’s Supreme Court decision didn’t do much to alter access to clinics, but rather laid what we already know about the abortion debate in America: Being cornered by strangers who want to talk about your uterus and pray for your unborn child is obviously horrifying and invasive, but it’s not illegal. Because while you may have the right to get an abortion, someone else has the right to make you feel terrible about it.