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 January 15, 2014, following oral arguments regarding the constitutionality of the Massachusetts law requiring protest "buffer zones" around abortion clinics in the state.
National Journal
Sophie Novack
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Sophie Novack
Jan. 16, 2014, midnight

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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