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Health Care

Supreme Court Abortion Case Weighs Free Speech, Clinic Safety

And speech could very well win.

Lead plaintiff Eleanor McCullen outside the Supreme Court on Wednesday, Jan. 15, 2014.(Sophie Novack)

photo of Sophie Novack
January 16, 2014

For anti-abortion advocates, "protest" has become something of a bad word.

"I don't protest, I preach," said Alan Hoyle, one of a very small handful of people quietly assembled outside the Supreme Court Wednesday. Hoyle and others were there because inside, the nation's most powerful justices were hearing oral arguments regarding the constitutionality of a Massachusetts law that requires a 35-foot "buffer zone" for protesters around abortion clinics.

Hoyle held a bible and a sign that read "SUPREME COURT REPENT" and was joined by Ronald Brock—self-proclaimed "Missionary to the Preborn"—whom he met three years ago supporting the personhood amendment in Jackson, Miss. The two stood in opposition to abortion and the Massachusetts restriction, speaking only to those who approached them.

 

The case, McCullen v. Coakley, requires the Court to weigh First Amendment rights against public safety. Antiabortion advocates argue that it violates their right to free speech, while the law's supporters worry that repeal of the law would be dangerous to patients and providers.

The lead plaintiff, Eleanor McCullen, considers herself a "compassionate counselor," not a protester. The soft-spoken 77-year-old has been "counseling" women outside abortion clinics in Boston for 13 years, and says she has saved countless children.

McCullen maintains she is helping women who are scared and confused, and that the buffer zone cuts her off just before she finishes her message.

"This is America—thank God!—and we have First Amendment rights," she said following the arguments Wednesday. "Which means gently speaking to someone, offering hope, help, and love—I should be able to do that."

But the plaintiff in Wednesday's case is not whom pro-choice advocates are concerned about.

"There is an intentional and very sinister attempt of the opposition and antichoice extremists to change the face of clinic protesters from what we know them to be—the kind of violent people who threaten the lives of doctors and really go out of their way to intimidate women—to sort of a kindly grandmother," said Ilyse Hogue, president of NARAL Pro-Choice America, in reference to McCullen. "Part of our job here is to make sure that what is pretty recent history is not forgotten."

The Massachusetts law aims to address past incidents of violence and intimidation outside the centers. Perhaps best-known is a shooting at a Planned Parenthood clinic in Brookline, Mass., in December 1994 that killed two clinic workers and wounded five. Liam Lowney, brother of victim Shannon Elizabeth Lowney, was present for the arguments Wednesday.

While the short buffer zone—which would take about seven seconds to walk—would not prevent a shooting, pro-choice advocates say it is a necessary protection.

"The current law is the only thing that has ever worked to maintain public safety," Marty Walz, president and CEO of the Planned Parenthood League of Massachusetts, and cosponsor of the legislation in question, said outside the Court on Wednesday. "The law strikes the right balance between the protesters' right to free speech, and our patients' and staff's right to come into the health centers, and the police department's ability to maintain public safety on the streets and the sidewalks in Boston, Worcester, and Springfield."

Antiabortion advocates say it violates the protesters' right to free speech and is biased toward the pro-choice side, as clinic workers are obviously allowed to cross the yellow line and enter the facility with the patients.

"No state should have power to circumscribe a line around speech it disagrees with, and shut out the speakers, and completely foreclose means of communication," said Steven Aden, vice president of human-life issues at the Alliance Defending Freedom, which he says has provided funding and support for the challenge. "That's exactly what the state of Massachusetts has done in this case."

Opponents of the law argue that the zone prevents them from speaking to patients face-to-face. If protesters are causing a disturbance, the state should hold those individuals accountable, they say, rather than instituting a blanket restriction.

"If there's any kind of disorderly conduct right here in front of the Supreme Court, well, you call the authorities. There's rules aligned for that, to take care of that," McCullen said. "But here I am—gentle, loving—and it's worth my time big time because I get many many calls saying: Eleanor, thank you for being there."

This isn't the first time the Supreme Court has considered the issue of buffer zones around reproductive health clinics. In 2000, the Court upheld Colorado's 8-foot "floating" buffer zones around those entering or leaving the facilities.

Yet with an increasingly conservative Court, including three of the Colorado case's dissenters and only two from the majority opinion, it's quite possible this time will be different. Justice Samuel Alito on Wednesday appeared likely to join the three remaining dissenters—Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas—in opposing the law. That would leave one more spot to have a majority, which could easily be filled by Chief Justice John Roberts.

"I'm cautiously optimistic," McCullen said, giving a thumbs-up outside Wednesday.

The Supreme Court is expected to make a decision on the case by the end of its session in June.

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