FAN 20.4 (First Amendment News) — 9 Comments on McCullen, the Abortion Buffer Zone Case
I thought it might be interesting to share excerpts from some of the commentary on McCullen v. Coakley. Here are 9 views on the case:
#1 — The American Civil Liberties Union
“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.
We agree that a fixed buffer zone imposes serious First 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.
Today’s opinion makes it more important than ever that the police enforce the laws that do exist in order to ensure that women and staff can safely enter and leave abortion clinics.” Steven R. Shapiro (press release, June 26, 2014) (ACLU amicus brief here)
#2 — Judge Richard Posner
“Lecturing strangers on a sidewalk is not a means by which information and opinion are disseminated in our society,” he wrote in Slate. “Strangers don’t meet on the sidewalk to discuss ‘the issues of the day.’ (Has Chief Justice John Roberts, the author of the opinion, ever done such a thing?). The assertion that abortion protesters ‘wish to converse’ with women outside an abortion clinic is naive. They wish to prevent the women from entering the clinic, whether by showing them gruesome photos of aborted fetuses or calling down the wrath of God on them. This is harassment of people who are in a very uncomfortable position; the last thing a woman about to have an abortion needs is to be screamed at by the godly.”
#3 — Laurence Tribe
“The great virtue of our First Amendment is that it protects speech we hate just as vigorously as it protects speech we support. On Thursday, all nine justices united to reaffirm our nation’s commitment to allowing diverse views in our public spaces — although their unanimous result belied their divided reasoning.
Cases like McCullen force us to balance competing constitutional values: free speech against the safety and autonomy of women. Here the balance tips unquestionably toward speech. A woman’s right to choose whether or not to terminate her pregnancy under Roe v. Wade guarantees her protection from the state. This protection does not include a right to be shielded by the state from fellow citizens hoping to peacefully convince her that she’s making the wrong choice.
In his quest to bring all his colleagues on board, Chief Justice Roberts wrote an opinion that implausibly described the Massachusetts statute as neutral as between anti-abortion speech and abortion rights speech — a neutrality that four conservative justices rightly dismissed as illusory, revealing a court sharply divided beneath its veneer of unanimity.
. . . [N]either empathy for their anguish, nor the need to protect the safety of women seeking such services, nor the clear need to guard against the rising tide of state laws designed to restrict access to abortions, can justify far-reaching measures that restrict peaceful conversation in public spaces.” (New York Times, June 26, 2014)
#4 – Walter Dellinger
“This case is really about the unwilling listener who is forced to submit to lectures she does not want to hear at a time of stress. (It would be easy enough to a protester standing a mere 12 yards away to hold up a sign saying, “Talk to me about your choice.”) Like many of the court’s decisions, this one draws a line across society on social and economic grounds. The wealthy elite—like Supreme Court justices—rarely if ever have to make their way through crowds that surround them and berate them or even plead with them in softer voices. Those who work at the Supreme Court (or at law firms like mine) most often drive (or are driven) into underground garages at work or at doctors’ offices. It is students, secretaries, school teachers, and other ordinary people who have to get off the bus or the subway and push their way through hostile crowds of those who may get in their faces and do everything they can to impede their entrance into a clinic. The gauntlet of the final entrance is but the final step that follows from the relentless creation of hurdles that are effectively depriving the most vulnerable women of the right that was promised to them in Roe v. Wade.
The creation of a relatively small space free of protesters in front of a clinic hardly shuts off debate. In defense of the notion that the space is relatively small, I post here one of the maps in the brief for Planned Parenthood of Massachusetts and Planned Parenthood Federation of America (a brief on which I was co-counsel.)” (Slate, June 27, 2014)
#5 – Amy Howe
“Although we often think of Justice Anthony Kennedy as the pivotal vote on the Court in high-profile cases, yesterday it was Chief Justice John Roberts who played that role, writing an opinion that had the support of the four more liberal Justices — Ginsburg, Breyer, Sotomayor, and Kagan.” (SCOTUSblog, June 27, 2014)
#6 – Kevin Russell
“In today’s decision, the Court holds unconstitutional the Massachusetts law establishing a thirty-five-foot fixed buffer zone around abortion clinics in the state. But did it, in the process, overrule Hill? Certainly, the majority opinion by the Chief Justice does not do so expressly (in contrast with Justice Scalia’s dissent, joined by Justices Kennedy and Thomas, which overtly calls for Hill to be overruled). Indeed, it is notable that outside of a brief mention in describing the background of the case (noting that Massachusetts had originally enacted a narrower buffer-zone provision modeled on the statute upheld in Hill), the majority opinion makes no mention of Hill at all.
The question is whether the reasons the majority gives today would effectively render buffer zones like Colorado’s unconstitutional, despite the result in Hill. There’s a good argument that they would.
To be sure, there is one big difference between the laws in the two cases: Hill involved an eight-foot floating buffer zone around individuals within a hundred feet of abortion clinics, while this case involved a thirty-five-foot fixed buffer zone. One might think that the sheer size difference could be determinative – one can still talk (albeit loudly) to someone eight feet away, and offer her literature; the decision today noted that this is much harder from the distance of thirty-five feet.” (SCOTUSblog, June 26, 2014)
#7 – Dahlia Lithwick
“While the decision is not monumentally awful in ways some progressives most feared, and certainly affords the state substantial latitude in its future attempts to protect women seeking abortions from harassment, more than anything it seems to reflect a continued pattern of “free speech for me but not for thee” or, at least, ‘free speech for people who think like me, that pervades recent First Amendment decisions at the court. More importantly, I don’t know where to locate this ruling in the burgeoning doctrine of “the right to be let alone” that Justices Alito and Thomas and Breyer have espoused, nor do I know how to reconcile it with the court’s persistent second-rate treatment of any speech that threatens to harass the justices themselves. . . .
In a gorgeously un-self-aware way, the same Supreme Court that severely limits speech and protest in a buffer zone all around its own building, extolls the unique and wonderful properties of the American boulevard in today’s opinion . . . .
But it is exhausting to keep hearing from the pro-life movement that women seeking abortions are magical pixie princesses, who must be—thank you Justice Kennedy—babied and soothed and gently counseled for the brief moments in which they contemplate abortion. As though these “difficult conversations” are really only for their own benefit. Unlike mourners, or voters, or Supreme Court justices, they simply need to be told what to do. That’s why this case is harder than a simple “yay, speech wins” reaction can capture: Privileging “gentle counseling” for some isn’t quite the same as promoting free speech for all.” (Slate, June 26, 2014)
#8 – Hadley Arkes
“The outcome in McCullen v. Coakley may not be as bad as Justice Scalia thinks it sounds. For my own part, I think that Justice Scalia is inescapably right in seeing the statute in Massachusetts as part of a scheme to close down, in the public forum, speech that is critical of abortion. But that critique may distract us from seeing what has been accomplished in this case. John Roberts, in his opinion for the majority, has picked up on some of the critical points that Scalia himself made during the oral argument in McCullen v. Coakley — most notably, that it was quite wrong to describe the speech of Eleanor McCullen as a “protest.” For Roberts it was as critical here, as it has been for Scalia, to put the accent on the fact that Eleanor McCullen works by quietly offering information to women entering an abortion clinic.” (National Review, June 26, 2014)
#9 – Geoffrey Stone
“Critics of the decision regard [the plurality's] approach as fundamentally naïve and unrealistic about what actually happens when anti-abortion protesters gather near the entrances to these facilities. These critics maintain that the image of the grandmotherly woman calmly approaching a young woman heading into the clinic in order to have an abortion and asking her if they might chat a bit about whether this is really a good idea is wholly fanciful and blinks the reality of what actually happens at these moments. . . .
In their view, a clean, simple rule, like the one enacted by Massachusetts, is a perfectly reasonable way to deal with the world as it is, rather than the world as Chief Justice Roberts imagines it to be. In the view of the critics, the more ‘narrowly-tailored’ restrictions that Roberts would approve are not really responsive to the complex, highly emotional, and often intimidating and even dangerous situations that actually arise in these settings.
The critics maintain that requiring people to stand 35 feet away from the entrance, while still allowing them to speak from there, is a sound and reasonable compromise between the free speech rights of those who oppose abortion and the rights of those who wish to exercise their constitutional right to reproductive freedom free of intimidation by others.
Although reasonable persons can differ about how best to reconcile these competing interests, I am inclined to agree with the critics of the decision that it unnecessarily and inappropriately set aside a reasonable and sensible compromise that better adjusted the competing interests than the more ‘narrowly-tailored’ alternatives that Chief Justice Roberts held would pass constitutional muster.
. . . . [I]t is worth noting that this case must have been especially difficult for the Court’s four ‘liberals,’ all of whom are strong protectors of both the freedom of speech and the right of a woman to terminate an unwanted pregnancy. For them, Justice Roberts’ moderate, middle-ground probably gave them a resolution that, although perhaps not ideal, they could live with.” (Huffington Post, June 27, 2014)