On free speech outside of abortion clinics (McCullen v. Coakley)

Pro-life protestor Eleanor McCullen standing outside of a Planned Parenthood in Boston, MA, just past the yellow line demarcating the 35-foot buffer zone.

Pro-life protestor Eleanor McCullen standing outside of a Planned Parenthood in Boston, MA, just past the yellow line demarcating the 35-foot buffer zone. (AP Photo/Steven Senne)

The question in this case:  Is the state of Massachusetts violating Eleanor McCullen’s 1st Amendment right to free speech by enforcing a law that prevents her and others from protesting inside a 35-foot buffer zone of the entrance, exits, and parking lots of abortion clinics?

5-cent explanation:  Eleanor McCullen (pictured above), a Massachusetts resident and pro-life protestor, is challenging a 2007 law that increased a buffer zone from 24 to 35 feet outside of abortion clinics.  This buffer zone prevents anyone not receiving treatment at the clinics from protesting less than 35 feet outside the clinic and speaking to patients in the parking lot, sidewalks, or near an entrance or exit.  McCullen believes this law is a violation of her free speech and expression rights protected by the 1st Amendment.  Massachusetts’ claim is that the law is legitimized by a precedent in a similar case in 2000 (Hill v. Colorado), and ultimately protects patients from potential harassment. 10-cent explanation:  This case involves 70-year old Eleanor McCullen, a pro-life activist who has brought this suit with six other pro-life 1st Amendment advocates.  Their complaint is that a Massachusetts’s law barring anyone from crossing the buffer zone around abortion clinics violates their 1st Amendment free speech and expression rights to offer alternatives to patients getting an abortion.  When the state first enacted a law in 2000, harassment of women entering and exiting abortion clinics wasn’t uncommon.  The history of harassment outside of abortion clinics in Massachusetts is extensive and, in some cases, fatal.  Patients endured bouts of shouting and screaming, were grabbed, had their license plates photographed, and in some cases had butyric acid thrown at them while they entered and exited the clinics.  In 1994, John Salvi shot and killed two women, and injured 5 others, at two abortion clinics in Brookline, Massachusetts.

The 2000 law banned protestors from standing within six feet from an 18-foot radius to the center of an abortion clinic.  The U.S. Court of Appeals for the 1st Circuit upheld the Massachusetts law when it was challenged in 2000 and was further supported in a 6-3 SCOTUS decision on a similar matter in Hill v. Colorado.  In the Colorado case, the Court upheld an eight-foot buffer zone around health facilities.  They reasoned that a speech restriction law that didn’t discriminate against an expressed viewpoint, was narrowly tailored, left open other means of expression, and was neither overbroad nor too vague passed constitutional muster.  To simplify the decision: you have a constitutional right to say something you believe strongly in, but that right does not guarantee your intended audience must hear or listen to your speech.  Similar laws that restrict the time, place, and manner of speech have been upheld by the courts and can be enforced by agents of government. Every Tuesday and Wednesday morning, from 7:00AM-11:00AM, you can find Eleanor McCullen outside of a Massachusetts abortion clinic pushing a stroller and handing out literature, including her personal phone number, to women she can reach going in or out of the clinic.  Inside the stroller is a DVD player showing ultrasounds of the unborn and pamphlets on pregnancy medical centers nearby.  McCullen considers her work “sidewalk counseling.”  Instructed by her priest to activate a message she believes she received from the Holy Spirit eleven years ago, McCullen took up this method of outreach.  The priest told McCullen that her “purpose was to ‘stretch herself’ out of her comfort zone in order to build up the kingdom of God.” He recommended she do this by protesting local abortion clinics. Eleanor McCullen has reached out to many women seeking abortions, offering them counseling, alternatives, even offering to host them baby showers, in which she will give them all the items new mothers and babies need.  McCullen admits the showers are opportunities, or incentives, for the women not to have an abortion.  She feels strongly in speaking to these women respectfully, kindly, and in a way that isn’t threatening, and has been openly critical of aggressive anti-abortion advocates. Her problem with the 2007 law is not simply that it exists but that it allows certain people to approach these women – employees, nurses, and doctors – while others are legally barred from doing the same.  McCullen argues this practice constitutes “viewpoint discrimination.”  Her attorney will argue the employees of the clinics could encourage women to have the abortion while the buffer zone prevents the opposing side from also encouraging the women from receiving the abortive procedure. McCullen raises a few fundamental questions about 1st Amendment rights one has to deliver speech and to protest to an intended audience.  First, is Massachusetts’ 35-foot buffer denying some access to their intended audience (McCullen and the protestors) while simultaneously granting others (employees of the clinics) access?  If so, this technically could be viewpoint discrimination and the law may be struck down.  Second, is there a distance that provides opportunities for speakers to reach their intended audience while also protecting patients from harassment?  If 35-feet is too much and 24-feet is too little, can the Court split the difference between the two to reach a compromise?  It’s also worth noting two key points: Only two of the six who supported the 2000 Colorado law are still on the bench (Ginsburg and Breyer) while three who voted against it (Scalia, Thomas, and Kennedy) are not only still around but likely to garner support by justices Roberts and Alito.  Finally, if the justices strike down the Massachusetts buffer zone as an unconstitutional violation of the free speech, will the Court reverse the current ban in place for anyone who wants to protest on the steps of the Supreme Court?  Doubtful, but we’ll wait to see what happens.

Decision:  9-0 for McCullen.  Chief Justice John Roberts, writing for the majority, found McCullen’s sidewalk counseling to be the very non-hostile, unthreatening speech the 1st Amendment seeks to protect.  He continued that her approach was more like that of a counselor than a protestor.  Therefore, the 35-foot buffer zone around MA abortion clinics impairs her efforts and infringes on her right to speak freely with her target audience (patients coming in/out of the clinics) about their options.  While McCullen won in this case it’s important to note that the Court did not strike down the legality of  content-neutral laws like buffer zones.  The decision was reversed and remanded back to the lower court where Massachusetts’ legislators will get to recreate buffer zones that both protect patients and civil liberties.

For more info, we liked these two articles on the case from Adam Liptak of the NYTimes and the Cato Institute.