Your Uterus Is “An Important Subject” About Which Your Fellow Citizens “Wish To Converse”

Today the Supreme Court invalidated a Massachusetts law that required protesters at abortion clinics to stand outside a 35 foot “buffer zone” from the facility’s entrance, holding that it violated the free speech rights of “sidewalk counselors” whose work “involves offering information about alternatives to abortion and help pursuing those options.”

The Massachusetts buffer zones, the Court concluded in McCullen v. Coakley, restricted the speech of these “sidewalk counselors,” who claimed the law “hampered their counseling efforts,” having had “many fewer conversations and distributed many fewer leaflets since the zones went into effect.”

The Rev. Harry Knox, president of the Religious Coalition for Reproductive Choice, called the sidewalk counseling protected in McCullen “spiritual harassment,” adding, “We’re outraged that the Court has allowed strangers to intercede in the personal health decisions of women and families when they have not been invited – and indeed are not welcome.”

As devotee of the First Amendment, I have conflicting feelings about restrictions on speech. Steven R. Shapiro, legal director of the American Civil Liberties Union noted such conflicts in a statement: “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 decision is limited to the 2007 Massachusetts law, and may not invalidate every buffer zone law currently on the books or that could be enacted in the future. The ruling leaves in place a 2000 decision upholding a Colorado law that imposed a 100 foot buffer zone outside all health care facilities, barring people from coming within eight feet of visitors to counsel them without their consent.

In a concurring opinion, Justice Antonin Scalia, joined by Justices Anthony Kennedy and Clarence Thomas, resentfully complained that because of the narrowness of the ruling, “Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents.”

Despite the grumbling concurrence, abortion opponents are celebrating a victory for the free speech rights of their sidewalk counselors, even portraying women who have been or will be talked out of abortion as the beneficiaries of the ruling. These buffer zones have not only denied pro-life activists their right to speak, but have also denied women the right to hear information about abortion that could be wanted and helpful to them in making a decision that will affect the rest of their lives,” Operation Rescue’s Troy Newman said in a statement. (Legally speaking, though, supposedly “life-saving” speech isn’t entitled to any heightened constitutional protection than other speech; the First Amendment, after all, protects, most crucially, unpopular speech.)

While Scalia complains that it’s abortion rights advocates who have been “given a pass”–as if they had done something wrong in the first place to even require a “pass”–there’s little sympathy in the opinion for the challenges faced by women entering abortion clinics, even if the challenges are from kindly grandmothers like the plaintiff in McCullen. While Scalia complains that abortion opponents are having their rights “suppressed,” there is little sympathy in the majority opinion for the rights of women to enter a doctor’s office free of harassment, even if it is delivered out of purported love.

Imagine an analogous scenario: if a doctor, for religious reasons, advertised that she refused to dispense birth control, and protesters stood outside her office, attempting to persuade her patients that foregoing birth control was a terrible thing they would later regret. Surely that would be seen as a terrible invasion of the patients’ privacy, her choice of doctor, and her choice of birth control methods (or lack thereof). One might even consider such “sidewalk counseling” a form of spiritual harassment.

The majority opinion is fiercely protective of leafletting on sidewalks as the quintessential form of constitutionally protected free speech, which, broadly speaking, is an unassailable position. But again, the lack of attention to the challenges of accessing abortion services is striking. In one example, the Court wrote that the sidewalk counselors merely “wish to converse with their fellow citizens about an important subject on the public streets and sidewalks—sites that have hosted discussions about the issues of the day throughout history.”

It is true that abortion is one of many “issues of the day.” Yet it’s hard to imagine, for example, that urologists’ offices would become a target of anti-contraception protesters, aiming to talk men out of vasectomies.

Contra Justice Scalia, the “pass” is not to the abortion rights advocates, but to the abortion protesters. As Amanda Marcotte argues at Slate, the decision, while specific to the Massachusetts law, “could very well be taken by the anti-choice movement as ‘permission’ to reassert themselves and their physical presence.”  In contrast, there would likely  be serious societal pressure against leafletting at urologists’ offices because that would seem. . . weird.

As Physicians for Reproductive Board Chair Nancy Stanwood said, “We respect the right of those who disagree with us to voice their opposition; however, we believe that the same respect should be afforded to the right to access health care services free from harassment and violence.”

Sarah Posner, author of God’s Profits: Faith, Fraud, and the Republican Crusade for Values Voters, covers politics and religion. Her work has appeared in The Washington Post, The Guardian, The Atlantic, The American ProspectThe NationSalon, and other publications. Follow her on TwitterRSS feed Email

  • fiona64

    These unqualified “counselors” want the right to harass and intimidate women who are seeking health care — the type of which these self-appointed counselors have no way of knowing (because it’s none of their damned business). The right to free speech does not include a right to a captive audience — no matter what these anti-choice jerks think.

  • Jim Reed

    I guess if you want to get your point heard you could harass the justices as they enter the supreme court. Give them some anti-harassment messages delivered out of love.

  • cranefly

    The long-term solution might be to shut down the “abortion clinics,” whatever that refers to, and establish health centers that give flu shots and also happen to provide abortions. Would this be an issue if protesters didn’t know who was going to get an abortion and who was going to get prenatal vitamins? You don’t see many people picketing a hospital, or a private practice general practitioner’s office, on the off-chance that someone might be going in for immoral reproductive care. Or do you? I don’t live in a place where these sidewalk actions happen, so I’m genuinely asking.

  • Jeffrey Samuels

    considering the ‘passion’ that the anti abortion ‘counselors’ can express, doesn’t this sort of have a potential for violence in a ‘stand your ground’ state? What about anti abortion ‘counselors’ who live in the open carry states and approach women while holding ak47 weapons? That would not be considered intimidation? if both scenarios occurred simultaneously, we could see some unfortunate results, and don’t think that the situation would never come up. In this country abortion passions have led to violence even with buffers.

  • Harry Underwood

    What about sidewalk counter-counseling?

  • CaffinatedOne

    You greatly underestimate the zeal of the anti-choice crowd. They’d protest and picket any place that they thought might be providing abortions. So, unless your plan included a massive expansion of the numbers of places that provide abortions to make direct protests/harassment/”counseling” utterly impractical, it’s not going to work.

    BTW, current “abortion clinics” aren’t actually named such and already do much more than provide abortions (they’re women’s clinics and family planning centers that provide a host of services mostly).

  • cranefly

    I figured the main target was already places like Planned Parenthood, which are not just abortion centers, but do focus on things only “immoral” people need: STD tests, birth control, pelvic exams. You’re probably right, but I still wonder how far re-branding could go.

  • Guest

    I wonder what the ruling would have been if it were atheists attempting to “counsel” people going into a church on Sunday morning?

  • revtheodyke

    As Rachel Maddow pointed out last night, there is a “bubble” of protection around the Supremes ensuring that they don’t have to endure the treatment they’ve now subjected women at clinics to. Hypocrisy, thy name is SCOTUS.

  • Jim Reed

    That should be challenged, and taken to the supreme court so that they can make a ruling on their bubble

  • Kelly

    Women should wear T-shirts quoting bible verses where God clearly shows that life is when the BORN infant takes the first breath and that abortion is perfectly okay with Him if your husband is jealous.

  • Deborah Gerish

    Hospitals and clinics offering a larger suite of services actually got out of reproductive services like PP’s, because they didn’t want the harassment. Don’t have any citations or even solid dates, but they did move away from PP-like offerings some time ago.

  • fiona64

    I hope with all of my heart that pro-choice people start protesting outside the phony CPCs, telling women going in the truth: that there are no medical professionals inside, and that they are going to be lied to about their pregnancy … as well as being pressured to place the infant for adoption.

  • fiona64

    Um, not so much. I worked in hospitals for the better part of a decade. If they have medical offices/outpatient clinics, they’re still providing all of the same OB/GYN services that they always have. They can, however, generally afford more security than a non-profit women’s health clinic can.

  • David Lloyd-Jones

    Have the Supremes ruled yet on the large historic body of legislation about mopery with intent to gawk?

    I think that mopery’n’gawk is the least of these lifer creeps’ crimes, but they could serve the public by taking such legislation through the courts. And bailing their members out every day until they do…

    -dlj.

  • Gregory Peterson

    The Atlantic has a related piece.

    The Rise of the DIY Abortion in Texas

    A pill that revolutionized reproductive rights in Latin
    America is now gaining ground on the black market in South Texas.

    Erica Hellerstein Jun 27 2014, 9:00 AM ET

    http://www.theatlantic.com/health/archive/2014/06/the-rise-of-the-diy-abortion-in-texas/373240/

  • JCF

    I’m going to look into becoming a clinic escort: put my body where my beliefs are. Vulnerable women shouldn’t have to face this kind of fanaticism-based coercion alone.

    I can only give thanks that my own uterus has escaped an imposed status, thus far…

  • JCF

    Including abortion? I think you exaggerate, in recent years. In the past few (GOP-controlled) years, (SAFE!) abortion providers are being legally put out of business. Welcome back, coat-hangers… :-(

  • fiona64

    Yes, including abortion.

    The sites that are being targeted are the small, non-profit clinics in local communities as opposed to hospitals and medical office buildings.