Bench Memos

Posner’s Bizarre Comments on McCullen v. Coakley

Here is how Chief Justice Roberts, joined by the four liberals, described the speech that “sidewalk counselor” Eleanor McCullen and her fellow petitioners were barred from providing on public sidewalks within the “buffer zone” created by the Massachusetts statute:

[Petitioners] 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.

And here is Seventh Circuit judge Richard Posner’s deranged account on Slate:

The assertion that abortion protesters “wish to converse” with women outside an abortion clinic is naive. They wish to prevent the women from entering the clinic, whether by showing them gruesome photos of aborted fetuses or calling down the wrath of God on them. This is harassment of people who are in a very uncomfortable position; the last thing a woman about to have an abortion needs is to be screamed at by the godly.

It’s strange enough that Posner feels himself free to express his contempt for “abortion protesters,” stranger still that he is so confident that he knows what “a woman about to have an abortion needs,” and even stranger that he baselessly provides such a distorted account of Eleanor McCullen’s counseling activities. [Addendum: Although Posner is too obtuse to recognize it, Eleanor McCullen and other sidewalk counselors entirely agree with him that being screamed at is not what a troubled pregnant woman needs.]

As I’ve said before of Posner’s supposed “pragmatism”: I would have thought that the necessary intellectual temperament of a pragmatist would be empirically focused, skeptical of his own initial certitudes, and meticulous — not abstract, dogmatic, and sloppy.

Yet more evidence that Posner has lost it.


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