The Supreme Court heard arguments this week in a “buffer zone” case, challenging the constitutionality of a Massachusetts law that requires protesters at abortion clinics to stand outside a 35-foot circle from the clinic’s entrance. The lead plaintiff in the case, Eleanor McCullen, is portrayed as a kindly grandmother who stands outside a Planned Parenthood clinic as a “sidewalk counselor,” not a boisterous protester. She only offers “compassion” and “care,” her lawyers argue, and the law, which requires her to stand beyond the perimter of a 35-foot circle outside the clinic, compels her, in order for her “compassion” to be heard, to become something she is not: a shouter. A “protester.”
It’s framed as a free speech case, but at its core McCullen is about religion, and, more precisely, about proselytizing as a form of protest.
At the Washington Post’s Monkey Cage blog, University of Denver political scientist Joshua Wilson argues that even if the Supreme Court strikes down the law, blockades and protests of the types that led to the passage of these laws are not likely to return. That’s because, Wilson argues, since the late 1990s clinic protests have dropped off, replaced with savvy lobbying and advocacy in state capitals, a sophisticated legal strategy with the backing of well-funded advocacy organizations, and crisis pregnancy centers instead of clinic blockades. He writes that the Christian right:
has since come to develop impressive multifaceted political institutions, realistic understandings of political means and possibilities, and significant access to state policy makers. Anti-abortion activists have correspondingly relocated the main abortion politics battlefield from the visible, participatory, and volatile streets to the more private, elite, and staid state legislative halls where they have enjoyed significant success.
But the reality is not a clean one or the other. Wilson is right about the professionalization of the anti-abortion strategy, which has led to a record number of legislative abortion restrictions at the state level. But these changes have not made violence and intimidation disappear. During the so-called Summer of Mercy in Witchita, Kansas, in 1991, news coverage described Operation Rescue protesters “flinging themselves under cars, sitting by the hundreds at clinic doorways and blocking women from entering as they read them Scripture.” But 18 years later, during the supposed professionalization period, Dr. George Tiller was assassinated in that same city. And a subsequent investigation by journalist Amanda Robb found that his assassin, Scott Roeder, was not a “lone wolf.”
It’s true, as Wilson chronicles, that the anti-choice movement has had enormous political success (although it’s not at all accurate to say, as he does, that “the progress that they have made creatively regulating access to abortion largely went unnoticed, and thus popularly unopposed, until Texas State Sen. Wendy Davis’s filibuster brought attention to the strategy.”) But even as he is right that this “professionalization” has occurred, harassment and even violence against abortion providers haven’t gone away. As these statistics on violence and disruption of abortion providers compiled by the National Abortion Federation show, such incidents have decreased, and that’s due in part to 1994 federal law making it a crime to use force or the threat of force to obstruct someone’s access to reproductive health services. But these incidents certainly haven’t disappeared. Making life miserable for abortion providers is part of the strategy.
The sidewalk counseling at issue in McCullen is actually part of the “professionalization.” Instead of physically blocking a woman from entering a clinic or threatening violence against a provider, “sidewalk counselors” claim to offer needed salvific advice: it can range from a counselor’s claim to have regretted her own abortion, only to find redemption in Jesus, to false information about the supposed spiritual, psychological and physical harm the sidewalk counselors say abortion can cause. In some cases these “counselors” aren’t divorced from the crisis pregnancy centers where Wilson maintains “counseling” is done in “quiet, uninterrupted privacy.” When I reported a story on the anti-choice movement in Texas three years ago, I visited a crisis pregnancy center that was in a bus, parked right outside a Planned Parenthood in Houston. It wasn’t really private at all; while I was interviewing the nurse there, one of the sidewalk counselors triumphantly introduced a young woman she cajoled away from Planned Parenthood with a promise of a free pregnancy test.
The buffer zone cases really aren’t about free speech, they are about the evolving nature of protest in the anti-choice movement. In this evolution, the protest (“the act of objecting or a gesture of disapproval“) has been portrayed as “compassion,” with words that can only accurately be described as meddling portrayed as “caring.” But it is still a form of protest: for one person’s autonomy to be relinquished to another’s religious conviction. The Supreme Court may well decide that is speech protected by the First Amendment. But “counseling” it is not.
Read Joshua Wilson’s response here. –Eds.
