After nearly seven years of relatively little disruption, a Massachusetts abortion clinic was the site of a vivacious protest on Saturday. The protest was three times larger than the clinic’s normal crowd and took place within the confines of the now meaningless 35-foot buffer zone. Last Thursday’s Supreme Court decision in McCullen v. Coakley terminated Massachusetts’ buffer zones around abortion clinics in defense of protesters’ freedom of speech. A consequential storm of criticism from women’s rights groups followed. They posed the question of whether constitutionality should be the sole factor in a decision so influential.

Although I always find myself screaming on behalf of pro-choice advocates, I must admit that the Supreme Court’s ruling does follow the constitution in a very logical and technical sense. But should the Constitution be the final word? Pro-choice activists across the country certainly don’t think so.

The Ruling

SCOTUS’s decision to strike down the buffer zones stemmed from their broad definition of anti-abortion advocates’ free speech. Chief Justice Roberts wrote, “here the Commonwealth has pursued interests by the extreme step of closing a substantial portion of a traditional public forum to all speakers,” referring to sidewalks where protesters typically congregate. Eleanor McCullen, the grandma-esque poster woman for abortion opponents, argued that the buffer zones were unnecessary because the exchanges they sought to restrict were peaceful, not violent. However, an abortion opponent could just as easily whisper a dangerous threat as they could shout it.

Justice Scalia pointed out that the close, personal interactions being defended by this ruling were a perfect example of what the First Amendment is intended to protect–the right to try to persuade others. He even went on to compare these conversations to protests that occur in other scenarios, such as protesters outside the Republican National Convention or voting stations.

At this point, I know I was not alone in thinking: did he really just compare getting an abortion to filling out a ballot? It’s not like choosing a political party. It’s not a choice you can alter or change with time. It’s a choice that will change your life forever and not one that should be taken lightly. It’s a choice that you should be so firm in that a peaceful chat outside a clinic would not persuade you to change it. It’s a choice that will affect you for the rest of your life. Most importantly, its a personal choice, not one subject to public discussion and attack.

Yes, I said “attack.” Just because it’s not screaming, loud, and belligerent, doesn’t make it polite or okay–harassment can take many forms. For example, most anti-abortion protesters shame patients silently with posters calling them killers, or with pictures of living, dead, or mutilated babies. The Boston Globe shared a statement from a young woman entering the aforementioned Massachusetts clinic on Saturday. She said, “you have to walk through this circle of people staring at you and talking to you and judging you…it’s very intimidating.” This shaming can bring as much emotional pain as any violent act.

Equally as interesting is the Supreme Court’s choice to eliminate these safe zones around abortion clinics, while still retaining their own buffer zones around the courthouse. The Supreme Court’s most recent regulation on their own buffer zone states:

The term ‘demonstration’ includes demonstrations, picketing, speechmaking, marching, holding vigils or religious services, and all other like forms of conduct that involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which is reasonably likely to draw a crowd or onlookers.

In fact, the closest public place where protesters would be allowed to hold demonstrations is 252 feet from their front doors. So, not only do the hypocritical justices have their own buffer zone, but it is more than seven times that of the Massachusetts clinics. The irony is truly nauseating.

What the Supreme Court should have considered:

• History: In 1994, two staff members at Planned Parenthood clinics in Brookline, MA, were killed by shooter John C. Salvi. He went on to injure five more people and also shot up another clinic in Virginia, where he fled to after the initial crime. No one should approach protesters, especially abortion opponents in Massachusetts, with the naivety that they will always remain peaceful. The buffer zone was not full-proof, but at least it was some sort of safeguard to protect patients and staff.
• Success Rates of Buffer Zones: There haven’t been any dangerous altercations since 2007, when the 35-foot zone was enacted. The fact that these zones have worked shouldn’t be used as justification to terminate them, but rather to further their necessity.
• Success Rates of Anti-Abortion Protesters: The buffer zones did not make it impossible for abortion opponents to achieve their goal. Eleanor McCullen, the case’s plaintiff, testified to persuading about 80 women to forgo abortion procedures, even with the 35-foot buffer zone. Why should the Supreme Court make it easier for less-polite protesters to attack the patients, while peaceful abortion opponents are still accomplishing their objective?

The only silver lining is that the Supreme Court seems to realize the need for some safeguard for entering patients. They contended that there are alternative steps that the Massachusetts legislature can take to ensure the protection of clinic patients. But in the meantime, women in Massachusetts must forgo the protection, however seemingly scant, that they were once guaranteed before entering abortion clinics.

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Erika Bethmann (@EBethmann) is a New Jersey native and a Washingtonian in the making. She is passionate about travel and international policy, and is expanding her knowledge of the world at George Washington University’s Elliot School of International Affairs. Contact Erika at staff@LawStreetMedia.com.

Featured image courtesy of [Talk Radio News Service via Flickr]

Erika Bethmann

Erika Bethmann is a New Jersey native and a Washingtonian in the making. She is passionate about travel and international policy, and is expanding her knowledge of the world at George Washington University’s Elliot School of International Affairs. Contact Erika at staff@LawStreetMedia.com.

The post Sorry SCOTUS, Harassment Isn’t Free Speech appeared first on Law Street.

The new Supreme Court term has begun! Over the past few years, the nation’s highest court has dealt with many historic cases, including the Affordable Care Act, the Voting Rights Act, Proposition 8, and the Defense of Marriage Act.  Many of these decisions were closely split, contentious, and received a poignant mix of outright disgust and frantic applause from various political factions. This upcoming term promises an equally exciting set of decisions. On the docket in upcoming weeks are cases that include campaign contribution limits, abortion rights, affirmative action, public prayer, and the ability of the president to make recess appointments.

Here are some of the upcoming cases that could be important to keep an eye on:

Already in progress is McCutcheon v. FEC. Under current law, there is an aggregate limit on how much an individual can give to campaigns over two years: $123,200. McCutcheon, backed by the RNC, alleges that these caps are unconstitutional because they limit freedom of speech. This case can be seen as a follow up to the controversial Citizens United case that allowed corporations and groups to levy free speech through making unlimited campaign donations.

In an upcoming case, NLRB v. Noel Canning, the high court will address the constitutionality of recess appointments. A recess appointment is exactly what it sounds like—an appointment to a position that normally requires Senate approval made unilaterally by the President during a Senatorial recess. This case specifically deals with whether or not recess appointments can be made during a recess that occurs in the middle of a Senate session, and whether or not recess appointments can be made to vacancies that existed before the appointment. There is no precedent on which the Supreme Court will be influenced, meaning the outcome of this case is a total tossup.

Town of Greece v. Galloway asks whether starting a town council meeting with a prayer violates the separation of church and state. Greece, a small town in Rochester starts each meeting with an (usually) overtly Christian prayer. A few non-Christian members complained that they felt coerced to participate.

Schuette v. Coalition to Defend Affirmative Action will deal with the of question of whether by amending their state constitution to prohibit race and sex based discrimination in public college admissions—meaning affirmative action—Michigan has violated the Equal Protections Act.

McCullen v. Coakley  deals with a Massachusetts law creating a 35-foot buffer zone around abortion clinics so that protesters urging women to make different choices are not allowed to protest within 35 feet of an abortion clinic. The plaintiffs believe that this buffer zone violates their freedom of speech rights.

Bond v. US is a truly interesting case in which a woman attacked her husband’s pregnant girlfriend with a potent mix of chemicals to attempt to kill her. She was charged by the government with being in possession of chemical weapons, and violating the Chemical Weapons Convention that was ratified by the United States. This case will offer an interesting view on the intersection between domestic courts and international law.

These are obviously not the only cases to watch in the current term. Other cases such as Kansas v. Cheever deals with the issue of self-incrimination. The Affordable Care Act Contraception mandate is being challenged in a number of cases. Limits on abortion-inducing drugs will be questioned in Cline v. Oklahoma Coalition for Reproductive Justice. All of these cases promise that the 2013-2014 season of Supreme Court decisions will be as revolutionary and exciting as the last few have been.

[Christian Science Monitor]

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Featured image courtesy of [Wally Gobetz via Flickr]

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

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