Understanding the win in McCullen v. Coakley and why it was so rightly obvious

McCullen v. Coakley involved a sidewalk counselor suing the Commonwealth of Massachusetts for infringing upon her First Amendment rights by having a free speech restricted zone around abortion clinics.

Eleanor McCullen’s efforts–which involved offering alternatives to women, not harassing them–were unfortunately impeded by the zone. As Chief Justice Roberts pointed out in his Opinion of the Court:

For example, in uncontradicted testimony, McCullen explained that she often cannot distinguish patients from passerby outside the Boston clinic in time to initiate a conversation before they enter the buffer zone. App. 135. And even when she does manage to begin a discussion outside the zone, she must stop abruptly at its painted borders, which she believes causes her to appear “untrustworthy” or “suspicious.” Id., at 135, 152. Given these limitations, McCullen is often reduced to raising her voice from outside the zone–a mode of communication sharply at odds with the compassionate message she wishes to convey. Id., at 133, 152-153.

Now of course this decision is a victory for the pro-life movement. It means that McCullen can continue to show love and support with her, as the Court itself refers to it, her “compassionate message,” with abortion-minded women.

But it also makes sense that for those who recognize the importance of the First Amendment, regardless of their view on abortion, this case was surely to be decided in favor of pro-lifers. When we examine this case from an objective viewpoint, the victory seems clear for two main reasons.

The buffer zone restricted free speech rights, and most notably of pro-lifers. Worth pointing out as well though is that if a woman so chose to talk to a sidewalk counselor, her rights were also restricted. A concurring opinion, the view taken by 4 of the justices, regarded the law as taking it a step even further, seeing it as a case of viewpoint discrimination.

And, the Commonwealth did not seek the measure which protected interests in the least restrictive manner.

The abortion movement took to decrying the actions of sidewalk counselors and then the Court.

According to one of many posts from NARAL Pro-Choice America’s Facebook page, which also includes a link to the organization’s press release,  “[t]he Supreme Court just made it harder for states to protect women and doctors from anti-choice protestors.”

Planned Parenthood Action had other similar posts, including one from the day after the decision was announced, with a caption that read: “[t]he Supreme Court just gave radical anti-women’s health protesters a green light to stand between patients and their doctors.”

Abortion supporters also wished to use their examples of harassment from those outside abortion clinics to make it seem as if all pro-lifers acted this way.

Such statements misunderstand the scope of the case and the facts. And yet the abortion movement claims it is pro-lifers doing so. Perhaps one of the most glaring examples is seen in a statement from Jan Erickson, of the National Organization for Women Foundation:

Anyone who claims that anti-abortion zealots are only engaging in “speech” are either sadly misinformed or deliberately misstating the facts.

Following the subtitle of “Terrorism towards a goal,” Erickson had this to say as well, with her own emphasis:

There can be no other way to describe in a single word what antiabortion protesters have engaged in for four decades and that is terrorism. Their goals were – and remain to this day – to terrorize health care providers, women who seek reproductive health care services and their allies to achieve their ideological and political goals.

If the abortion movement is to be believed, those who stand outside abortion clinics have the aim to harass, intimidate and even terrorize the women who are clients of such businesses.  But, we cannot restrict the First Amendment rights of people based on the fear of what they may do or are even just likely to do. They have to actually commit a criminal act.

Also, in his own opinion, Justice Scalia rightly calls out the supporters of the buffer zone and reminds readers what this case is really about:

Thus, the speech-free zones carved out by subsection (b) add nothing to safety and access; what they achieve, and what they were obviously designed to achieve, is the suppression of speech opposing abortion.

Further, those who would attempt to commit a criminal act against an abortion clinic would rightly be subject to criminal charges and jail time for committing illegal acts, the case regardless to where they occur. The pro-life movement already understands this. As Chief Justice Roberts mentioned, with added emphasis:

The Commonwealth’s interests include ensuring public safety outside abortion clinics, preventing harassment and intimidation of patients and clinic staff, and combating deliberate obstruction of clinic entrances. The Act itself contains a separate provision, subsection (e)–unchallenged by petitioners–that prohibits much of this conduct.

With original emphasis:

It is true that the layout of the two clinics would prevent petitioners from approaching the clinics’ doorways, even without the buffer zones. But petitioners do not claim a right to trespass on the clinics’ property. They instead claim a right to stand on the public sidewalks by the driveway as cars turn into the parking lot.

Even more fortunate are examples in which the Court recognizes the troubling, at least dubious, nature of the abortion industry.

Justice Scalia’s opinion touched upon the critical point as to how employees of the abortion clinic, namely clinic escorts, did have the right to communicate their views on abortion.  As previously mentioned, a reason why some of the opinions saw this zone as so clearly unconstitutional because it favored one side’s viewpoint of the abortion issue at the expense of the other, as is illustrated also by Justice Alito’s opinion:

It is clear on the face of the Massachusetts law that it discriminates based on viewpoint. Speech in favor of the clinic and its work by employees and agents is permitted; speech criticizing the clinic and its work is a crime. This is blatant viewpoint discrimination.

Justice Alito’s brief opinion is essential in providing a glimmer of hope in that pro-life viewpoints from the Court do exist. Or, its members at least realize deceit is alive and well (unlike the children being aborted) in the abortion industry. Speaking almost as if he had just seen Live Action’s investigative project “Is it Safe?,” Alito had this to say:

Or suppose that the issue is not abortion but the safety of a particular facility. Suppose that there was a recent report of a botched abortion at the clinic. A nonemployee may not enter the buffer zone to warn about the clinic’s health record, but an employee may enter and tell prospective clients that the clinic is safe.

The Court gets it.  Some of its members even get necessary pro-life points. The abortion movement does not. It is not just scared for the safety of women, if such a claim is even their chief concern. Abortion supporters are scared because the Court has acknowledged that pro-lifers have a right to speak the truth.

From a neutral perspective, this law was highly likely to be struck down for its unfair infringement of First Amendment rights. And this was reflected in the unanimous decision from the Court. Thank goodness for that.

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