Analysis Law and Policy

Don’t Tread on Grandma: The Supreme Court Reframes the Abortion-Free Speech Debate in ‘McCullen’

Jessica Mason Pieklo

In striking a Massachusetts buffer zone law, the U.S. Supreme Court has dramatically reframed the debate over balancing the rights of patients and providers with the rights of abortion protesters.

Read more of our coverage on the McCullen v. Coakley case here.

You’ve got to hand it to the anti-choice movement. When they picked Eleanor McCullen to be the face of their First Amendment attack on abortion clinic access, they knew exactly what they were doing. The trope of anti-choice protesters as “plump grandmas” helped the media and the U.S. Supreme Court not just gloss over the very real threats of violence that abortion providers and patients face, but also erase providers and patients from the Supreme Court’s analysis almost entirely.

Since 1977, the National Abortion Federation (NAF) has documented eight murders, 17 attempted murders, 42 bombings, 181 arson cases, 399 invasions, 100 acid attacks, and 663 bioterrorism threats targeting abortion providers and their facilities. A September 2013 survey of U.S. NAF members found that nearly 90 percent of providers had a patient entering their facility express concerns about their personal safety. At the Daily Beast, Sally Kohn reminds us that within an hour of the 1994 murders of abortion clinic workers in Massachusetts, which led to the eventual creation of clinic buffer zones, a woman called one of the clinics attacked and told the staff person who answered, “You got what you deserved.” Meanwhile, Donald Spitz, the director of Pro-Life Virginia, thanked John C. Salvi publicly for his murders as throngs of supporters cheered along enthusiastically outside the prison holding Salvi.

On Thursday, a unanimous Supreme Court looked past all that history—because, as Chief Justice John Roberts writing for the majority pointed out, the violent face of the anti-choice movement was not before the Court in McCullen. The “gentle” grandmas were.

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“Some of the individuals who stand outside Massachusetts abortion clinics are fairly described as protestors, who express their moral or religious opposition to abortion through signs and chants or, in some cases, more aggressive methods such as face-to-face confrontation,” Roberts wrote. “Petitioners take a different tack.”

He continues:

They attempt to engage women approaching the clinics in what they call “sidewalk counseling,” which involves offering information about alternatives to abortion and help pursuing those options. Petitioner Eleanor McCullen, for instance, will typically initiate a conversation this way: “Good morning, may I give you my literature? Is there anything I can do for you? I’m available if you have any questions.” If the woman seems receptive, McCullen will provide additional information. McCullen and the other petitioners consider it essential to maintain a caring demeanor, a calm tone of voice, and direct eye contact during these exchanges. Such interactions, petitioners believe, are a much more effective means of dissuading women from having abortions than confrontational methods such as shouting or brandishing signs, which in petitioners’ view tend only to antagonize their intended audience. In unrefuted testimony, petitioners say they have collectively persuaded hundreds of women to forgo abortions.

But to suggest that the Massachusetts buffer zone fight, or any buffer zone fight for that matter, is about people like McCullen who maintain a “caring demeanor” as they approach patients and employees requires some considerable intellectual gymnastics and selective storytelling. Chief Justice Roberts is up for the task. “Petitioners are not protestors. They seek not merely to express their opposition to abortion, but to inform women of various alternatives and to provide help in pursuing them,” Roberts writes. “Petitioners believe that they can accomplish this objective only through personal, caring, consensual conversations. And for good reason: It is easier to ignore a strained voice or a waving hand than a direct greeting or an outstretched arm.”

Right. Just as Lizz Winstead describes here. Or Robin Marty chronicles here. Or Erin Matson here. Or Katie Klabusich here.

You get the idea.

The thing is, as sympathetic a plaintiff as McCullen may be to some, judicial decisions are supposed to be grounded in legal reasoning, not sympathetic narratives. And the legal reasoning put forth by the chief justice in striking the Massachusetts buffer zone law is thin.

The last time the Supreme Court waded into the waters of abortion protesters, free speech, and government regulation was in the 2000 case Hill v. Colorado. There, the Court upheld a 1993 Colorado law that restricted demonstrations around health-care facilities by providing that protesters cannot come within 100 feet of any facility entrance generally while also prohibiting them from approaching within eight feet of a patient (without their consent) for the purpose of demonstrating at them—activities that are more or less what the plaintiffs in McCullen characterized as “sidewalk counseling.”

Restrictions on speech and speech activities like protesting are constitutional so long as they are content neutral, narrowly tailored to serve a significant government interest, and leave open ample channels for communication. In Hill v. Colorado, the majority ruled Colorado had a compelling interest in protecting its citizens from unwanted communication while not curtailing that communication entirely; although speakers have a right to persuade, the majority held, listeners also have a right to “be let alone.”

The Roberts Court had the chance to overrule Hill in McCullen, and it chose to punt instead. But the fact that Hill remains in place (for now) may not matter. Unlike Hill, where the Court framed its analysis on the impact of protesters’ actions and harassment on patients, the Court in McCullen has next to nothing to say about the impact of protester and “sidewalk counseling” speech on the listeners. After first, briefly, recognizing the legitimate public health and safety interest in keeping clinics harassment-free, Roberts turns his attention to what he sees as the real danger here.

At the same time, the buffer zones impose serious burdens on petitioners’ speech. At each of the three Planned Parenthood clinics where petitioners attempt to counsel patients, the zones carve out a significant portion of the adjacent public sidewalks, pushing petitioners well back from the clinics’ entrances and driveways. The zones thereby compromise petitioners’ ability to initiate the close, personal conversations that they view as essential to “sidewalk counseling.”

Roberts continues:

These burdens on petitioners’ speech have clearly taken their toll. Although McCullen claims that she has persuaded about 80 women not to terminate their pregnancies since the 2007 amendment, she also says that she reaches “far fewer people” than she did before the amendment. Zarrella [another petitioner] reports an even more precipitous decline in her success rate: She estimated having about 100 successful interactions over the years before the 2007 amendment, but not a single one since. And as for the Worcester clinic, Clark testified that “only one woman out of 100 will make the effort to walk across [the street] to speak with [her].”

The buffer zones have also made it substantially more difficult for petitioners to distribute literature to arriving patients. As explained, because petitioners in Boston cannot readily identify patients before they enter the zone, they often cannot approach them in time to place literature near their hands—the most effective means of getting the patients to accept it. In Worcester and Springfield, the zones have pushed petitioners so far back from the clinics’ driveways that they can no longer even attempt to offer literature as drivers turn into the parking lots. In short, the Act operates to deprive petitioners of their two primary methods of communicating with patients.

In other words, buffer zones work. So they’ve got to go.

As I noted here before the Court’s decision, one of the biggest differences between the Hill decision and McCullen is the composition of the Court. Justice Alito replaced Justice Sandra Day O’Connor, and the Court hasmoved further to the right. But now that we have the McCullen decision, I think another big difference is the Roberts Court decision in Gonzales v. Carhart, which in 2007 upheld the federal “Partial-Birth Abortion Ban Act of 2003.” In that decision, Justice Anthony Kennedy, writing for the 6-3 majority, justified upholding the ban in large part based on the unsubstantiated idea of abortion regret. “It seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained,” Kennedy wrote in Gonzales.

Is it any surprise then that a Court that so readily assumes to know what women do and do not regret as a means of upholding one anti-choice law would latch on to the unsubstantiated testimony of McCullen to strike at  legislation designed to protect the rights of those very women Justice Kennedy concern-trolls in Gonzales?

I hate to say it, but it gets worse: Next term, the Roberts Court will hear the case of Elonis v. United States, a case that questions the constitutionality of laws that criminalize online threatening speech. At the heart of Elonis is a fight over what is and is not a “true threat”—the very question also at the heart of the emerging legal challenges to targeted, individual instances of clinic and provider harassment under the Federal Access to Clinic Entrances (FACE) Act and state-level anti-harassment and anti-stalking laws. The majority in McCullen points to these kinds of laws as proof that the Commonwealth of Massachusetts did not narrowly tailor its buffer zone law enough. If states and localities are so concerned about clinic violence, Roberts writes in McCullen, then they should look first to these laws, which in the Court’s opinion are far better suited to address instances of violence and harassment. Of course the opinion in McCullen is silent on the looming threats to even those protections.

Thursday’s decision didn’t strike down all buffer zones per se, but I suspect we’ll see more legal challenges to other buffer zones with anti-choice activists continuing to argue that Hill v. Colorado should be overturned. And if the Roberts Court’s approach to abortion rights is anything like its approach to voting rights or affirmative action policies, then we will see exactly that happen. Which brings us back to our gentle, plump grandma and the very smart choice by the anti-choice right to put her front-and-center in this fight. After all, what better way to make the case for gutting protections for patients and providers then to flip the script and make grandma the real victim.

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