Abortion Opponents Will Probably Win This Supreme Court Challenge, and They Should

The law, lawyers, and the court.
Jan. 15 2014 6:11 PM

You Do Not Have the Right to Be Left Alone

Why the Supreme Court will strike down the Massachusetts law that keeps abortion opponents back from clinic entrances.

77159324-protestors-gather-for-the-opening-of-a-planned
Protesters gather for the opening of a Planned Parenthood clinic on Oct. 2, 2007, in Aurora, Ill. Is it constitutional to force people to protest abortion clinics from a distance?

Photo by Scott Olson/Getty Images

Most of the time, abortion providers and supporters argue for treating abortion as a regular part of medicine and women’s health. In reaction to the rash of new abortion restrictions in Republican-controlled statehouses, the Center for Reproductive Rights wrote, “No medical procedures other than abortion are targeted for restrictions aimed at reducing their effectiveness and increasing their expense and inconvenience.”

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

And yet there is one area in which clinics do want special treatment from the government: They want to keep opponents of abortion away from the clinic entrances patients, staff, and providers must walk through. In Massachusetts, abortion critics who are trying to talk women out of going through with the procedure—you can call them “protesters” or “counselors,” depending on your point of view—have to stand 35 feet from a clinic entrance or driveway. The Supreme Court heard a challenge to that law today in which the picture-perfect lead plaintiff is a regular Boston protester, Eleanor McCullen, a friendly grandmother type who stresses how “gentle” her persuasion tactics are, and odds are more than good that the buffer zone in Massachusetts is on its way out. If that happens, free-speech as well as anti-abortion advocates will claim it as a victory for the First Amendment. The clinics and the women they serve will have to deal with more hassle and heartache, and maybe more danger, abortion-rights advocates worry. The irony is that for once, the courts will be insisting that clinics should be treated just like every other health care provider. That would be a lot more acceptable to abortion-rights advocates if it meant that TRAP laws—all the medically unnecessary regulations requiring providers to have hospital admitting privileges, or clinics to widen their hallways and otherwise expensively equip their facilities as though they were surgical centers—were going down next.

The purpose of the 35-foot buffer zone is to keep clinic entrances “open and clear of all but essential foot traffic, in light of more than two decades of compromised facility access and public safety,” Massachusetts Attorney General Martha Coakley argued in her brief defending the law. The state and the abortion providers say they still need the 35-foot buffer zone for the safety of patients. Otherwise the strip of sidewalk outside a clinic turns into a kind of “1-yard line,” with one group pushing its way through the crowd to get in the end zone, and the other trying to prevent them from doing so. Massachusetts has a history of violent demonstrations to back up its lawmakers’ 2007 decision to create the buffer zone, including multiple shootings at two abortion facilities in 1994.

Advertisement

The problem with the state’s argument is that peaceful demonstrators like Eleanor McCullen are not rushing linebackers. They’re using their voices, not their bodies. Maybe the state could draft a narrower statute that only applied to more belligerent protesters, but it’s not clear how that would work, since we already have laws that protect patients and clinic staff from physical harassment and intimidation, and make it a crime to obstruct entry. No abortion protesters in Massachusetts have been prosecuted under those laws, according to the argument Wednesday.

So here’s another rationale Massachusetts gives for its law: States are allowed to restrict speech on the way into funerals and polling places, also slaughterhouses and places where workers strike. The Supreme Court bans all kinds of demonstrations and speechifying on its own plaza, a far greater expanse than 35 feet. But the court has said (perhaps dubiously) that that’s because the plaza isn’t a traditional “public forum”—the kind of place where people traditionally expect to gather and speak freely—and a sidewalk is. The Massachusetts law also runs into trouble because, in effect, it targets one form of peaceful speech—protesting abortion and trying to talk women out of it. That makes it hard to argue that the law is neutral about viewpoint, a key consideration when courts evaluate laws that regulate the time, place, and manner of speech.

In 2000, the last time the Supreme Court heard a case about a no-protest buffer zone outside an abortion clinic, Justice John Paul Stevens pointed out that the protesters’ “First Amendment interests are clear and undisputed. On the other hand, the State’s police powers allow it to protect its citizens’ health and safety, and may justify a special focus on access to health care facilities and the avoidance of potential trauma to patients associated with confrontational protests.” Stevens wrote the opinion in a 6–3 split in favor of upholding the state law. He has since left the court, and the five conservative justices will surely be more concerned about the rights of the abortion opponents to speak than with the rights of the “unwilling listeners,” as Stevens called many women headed into the clinics, “to be let alone.” Stevens said that “the right to unwelcome speech” can “be protected in confrontational settings.”

In fact, the Supreme Court has moved away from that position in the last few years, with decisions like Snyder v. Phelps in 2011, which protected anti-gay protesters at military funerals—who are as aggressive and ugly as they come—from a lawsuit for emotional distress brought by the grieving family of a deceased soldier. (Congress responded in 2012 by barring protesters from coming within 300 feet of a military funeral, and the Supreme Court hasn’t addressed that one yet.) Like that case, the clinic buffer zone in Massachusetts is just too clearly targeting one kind of speech—opposition to abortion—for Justice Anthony Kennedy, who is sometimes a swing voter, but also likes his First Amendment sweeping and capacious.

The only justice who seemed up for grabs at Wednesday’s argument was Elena Kagan, who suggested that 35 feet was too much, but maybe “having everybody take a step back” from a clinic entrance would be OK. It’s hard to imagine, though, that she would carry any of the conservatives with her. It can only be enormously frustrating to abortion-rights advocates to see how impervious the court is to the difficulties of providing abortions, day by day. Who else has to put up with bloody signs and shouting antagonists outside their windows, not to mention the legitimate fear that a crazed gunman will show up one day? “On a regular basis, I have patients come to me frightened and in tears because of the harassing conduct of protesters outside our health centers,” Rachael Phelps, medical director for Planned Parenthood of Central & Western New York, wrote to me in an email. “Protesters yell at our patients, call them names and take their pictures at a time when our patients feel most vulnerable, as so many of us are when undergoing medical care. It's my hope the Court doesn't take away the option of a clear, straightforward buffer zone.” 

I am very sympathetic to Phelps' situation, and to the women who have to deal with this entering any clinic. But what’s truly crucial is protecting patients and clinic staff from physical harassment and violence, not dissuasion and name-calling. The right to be left alone isn’t actually much a part of American tradition when it comes to public spaces. That’s our First Amendment, especially in the hands of this Supreme Court.

  Slate Plus
Slate Picks
Dec. 19 2014 4:15 PM What Happened at Slate This Week? Staff writer Lily Hay Newman shares what stories intrigued her at the magazine this week.