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.”