The Supreme Court on Wednesday heard a challenge to a 2007 Massachusetts law that creates 35-foot buffer zones around the entrances of abortion clinics, a law intended to offset harassment and violence that included a 1994 shooting rampage at two facilities. But critics say the law infringes on the First Amendment right of anti-abortion protesters to make their case to clinic clients.
Should the entrances be buffered? If so, how much space is enough space? Joel Mathis and Ben Boychuk, the Red-Blue America columnists, debate the issue.
Let us grant Eleanor McCullen this: If the Massachusetts buffer zone has truly infringed on her constitutional right to advocate against abortion, then she is one of the most effective activists alive.
Why? Because, by her own estimates, the plaintiff in this week’s Supreme Court case has persuaded 80 women not to have abortions – and that was after the 2007 law went into effect. Unleashed from the law, there might be no limit to what McCullen could accomplish for the pro-life cause.
But the First Amendment isn’t the only right in question.
Property owners – including the clinic’s owners and landlords – have the right to use and access their property. The clinic’s clients have the right to access women’s health care services that are both legal and constitutional. And they do it in full view of the opposition: McCullen and her allies are just a few dozen feet away, making their viewpoints known.
The current law keeps those opponents 35 feet away from clinic entrances; a prior version of the law had an effective buffer about half that size, about 18 feet. The Massachusetts Legislature revised the law after hearing “how protesters regularly barred access to clinics by physically blocking doors and driveways, and screamed from close range and from immediately next to doorways or driveway entrances at patients trying to enter clinics,” Massachusetts Attorney General Martha Coakley told the court in her brief defending the buffers.
Under that scenario, only the anti-abortion protesters had their rights protected. Thus, the buffer increased to 35 feet.
The Supreme Court may decide that buffers are fine, but order Massachusetts to reduce the size of the zone. That would be wrong: The state has already succeeded in balancing the rights of the parties involved. Women and clinics are able to exercise their rights with minimal fear and intimidation, and abortion opponents still have their say.
The Supreme Court would do well to let the current law stand; Eleanor McCullen doesn’t seem to need the help.
A few years ago, when the “reverend” Fred Phelps and members of his loathsome Westboro Baptist Church asked the Supreme Court to vindicate their First Amendment freedom to protest a private funeral for a dead U.S. serviceman, civil libertarians fell all over themselves to insist that as bad as the Phelps family’s views may be, they had every right to make a solemn occasion into a circus.
The justices agreed by a vote of 8-1.
In Massachusetts, however, civil libertarians are making a different case. The state must “balance” pro-life demonstrators’ First Amendment rights with a woman’s solemn right to choose an abortion.
To that end, creating a 35-foot buffer to protect these women from a disfavored point of view – namely, that there are safer and better alternatives to abortion – is a fitting tradeoff, and certainly does no harm to anyone’s freedom of expression, even if the effect of the law is to silence pro-life demonstrators. Or so the civil libertarian argument goes.
Trouble is, it’s not a very good argument in this case. When freedom of speech collides with the right of privacy, privacy should prevail. But the Westboro Baptist demonstrators’ supposed “freedom of speech” is more akin to a breach of the peace than anything else. It’s certainly not what Eleanor McCullen would describe as the right to “walk and talk gently, lovingly, anywhere with anybody,” as she as done diligently for decades with women who may not realize their options extend beyond snuffing out an innocent life.
The Supreme Court last addressed the “buffer zone” question in 2000. Justice Antonin Scalia noted in a scathing dissent at the time that the court’s tortured jurisprudence, which took the abortion debate largely out of the hands of elected officials, meant that “the most effective place, if not the only place, where . . . persuasion can occur, is outside the entrances to abortion facilities.”
We’ve reached an odd point where protesting a funeral, burning a cross, and dancing nude are all protected forms of speech, but the gentle persuasion of an elderly pro-lifer requires the heavy hand of the state. How is that freedom? These buffer zones silence opinion and need to go.