Is This America?
The Supreme Court considers a Massachusetts law against speech outside abortion clinics.



This morning, in America’s frigid and fractious capital city, a soft-spoken 77-year-old grandmother named Eleanor McCullen stood up to the machine.

At stake was a Massachusetts law that makes it illegal for any citizen to “enter or remain on a public way or sidewalk” within 35 feet of the entrance or exit to an abortion clinic — unless, that is, that citizen either works in the clinic or is in agreement with what goes on inside. This has severely restricted the ability of McCullen, a regular fixture outside the Planned Parenthoods of Boston, to hand out anti-abortion literature and to offer would-be patients financial support — both of which she has been doing pro bono for decades. The state law, she contends, is flatly illegal, violating her sacred right to free speech, depriving her of equal protection under the law, and effectively establishing speech codes on public land.

Apologists for the measure claim rather anemically that the law is necessary to prevent “harassment,” and they promise that it strikes a reasonable “balance” between respect for free expression and the need to protect visitors from being hassled. McCullen and her lawyers disagree, holding that because the law’s applicability is contingent not on one’s behavior but on one’s speech per se, it is unconstitutional. They are right.

The ACLU, which shamefully filed a brief in favor of the status quo, readily admits that expression is being restricted. They just think it’s worth it. As Mother Jones’s Molly Redden explained, lawyers at the outfit concede that “buffer zones do impinge on free speech, but they contend this is necessary to protect the competing constitutional right to obtain an abortion.”

All told, this is an odd sentence — its implication being that anti-abortion speech is so devastatingly effective at preventing would-be patients from going through with their decisions that it needs to be suppressed — and it appears to back up Justice Scalia’s scathing charge that what advocates are really interested in is limiting debate. Argument, Scalia has written, is the “forum of last resort for those who oppose abortion.” Roe v. Wade having limited the legislative options, advocates such as McCullen have “no option but to persuade women, one by one, not to make that choice. And as a general matter, the most effective place, if not the only place, where that persuasion can occur, is outside the entrances to abortion facilities.” If not to smother that persuasion, what possible interest can the state have in regulation?

Cases such as this often become confused by the question of what the state is allowed to do when speaking becomes something else — intimidation, say, or browbeating. But there is no such complication here. Despite his repeated entreaties, the defendants singularly failed to provide Justice Breyer with an example of the violence that they say made the law necessary in the first place. Indeed, even if they had found one, it wouldn’t have done much to justify the rule. Why? Well, because Massachusetts’s law discriminates against citizens not for the manner in which they express themselves but simply for holding a point of view, for praying, or for displaying a protest sign — for exercising one’s right to “walk and talk gently, lovingly, anywhere with anybody,” in the words of Eleanor McCullen. This is unacceptable.

Legally problematic, too, is that the law effectively puts citizens into two camps, banishing anyone with pro-life views while welcoming everybody else. Under the rules, anti-abortion activists are strictly prohibited from even entering the buffer zone — which is represented by a crude semicircle painted onto the sidewalk — while employees of the clinic are free to roam as they please. Likewise, while protesters are restricted from so much as referring to abortion beyond the state-imposed line, staff and others are entirely free to discuss the issue as they wish. In other words, the law is “content-based,” and its consequence is to have blocked certain citizens from a public space purely on the basis of their private convictions. Justice Alito, who is no friend to maximalist readings of the First Amendment, wondered aloud how this could possibly be kosher. Per MSNBC, Alito proposed a hypothetical:

A woman entering a clinic is approached by two other women. One says, “Good morning, this is a safe facility,” the other says, “Good morning, this is not a safe facility.” Alito said, “The only difference is that one is committing a crime. How can a statute like that be considered viewpoint neutral?”


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