Written by Jacqueline Ahearn
On June 27, 2014, abortion clinic protestors stepped victoriously over the brightly painted yellow lines surrounding clinics, shaking signs and pamphlets and approaching all who ventured near. This was the first time since 2000 that protestors could engage patients with impunity, held back only the day before by a buffer zone law which had protected people entering the clinic. Clinics reported higher rates of no-shows that day and in the weeks that followed, and for over a month, the Supreme Court decision of McCullen v. Coakley left clinics without recourse to prevent harassment of their patients.
The buffer zone in McCullen was created in the Massachusetts Reproductive Healthcare Facilities Act (MRHFA) in 2000. The MRHFA was written as a response to anti-choice violence in the state, which included two murders. In 2007, the law was amended to create a 35 foot fixed buffer zone around clinic entrances and driveways because the state found that the original law was not doing enough to prevent harassment and violence.
Eleanor McCullen and the other plaintiffs were regular protestors at three clinics in Massachusetts. The plaintiffs called themselves “sidewalk counselors” and purportedly claimed to be trying to engage clinic staff and patients in conversation, a goal which they said distinguished them from mere protestors. Martha Coakley was the Massachusetts Attorney General who successfully defended the law in the lower courts before ultimately losing in the Supreme Court.
To understand McCullen, one must first understand the history of abortion in this country. Abortion was criminalized in all but four states starting in 1821, and in 1873 the federal government passed the Comstock Act, which made it a crime to possess “obscenity,” including birth control. States soon adopted their own versions of Comstock Laws, and they went unchallenged until the landmark case Griswold v. Connecticut in 1965. That case, and Eisenstadt v. Baird which followed in 1972, found a constitutional and fundamental right to privacy implicit in the Constitution. These cases ruled that such a right to privacy extended to sexual and reproductive decisions. A year later, in one of its most famous decisions, Roe v. Wade, the Supreme Court ruled that abortion was a fundamental part of the right to privacy and that it was unconstitutional to ban the procedure. The Court stressed the importance of analyzing any restriction on abortion with the highest level of scrutiny, called strict scrutiny. Thus any state restriction on abortion must be based in a compelling state interest and be no more restrictive than absolutely necessary to achieve that interest.
This careful and heightened review of laws restricting abortion did not last long. In 1992, the Court heard Planned Parenthood of Southeastern Pennsylvania v. Casey and changed the standard of review. The new standard, invented by the Court solely for laws restricting abortion, was called “undue burden.” The undue burden standard was meant to fall somewhere below strict scrutiny and above intermediate scrutiny. It required only that state restrictions on abortion not create an undue burden for the woman seeking an abortion. This shifted the burden of proof, and now a person challenging the law must show such an undue burden, and the state need not show a compelling interest. This decision signaled a shift in the Court’s willingness to stringently protect abortion rights, emboldening legislators to pass further restrictive laws. Since 1992, anti-abortion legislation has risen steadily, with 950 bills proposed in 2010 alone. Of those 950, 89 passed, more than double what was passed in 2008. More anti-abortion legislation was passed in 2011-2013 than the entire decade previous.
“One of the most important elements of a democratic government is that it protects the fundamental rights of its people from those who wish to infringe upon them…”
One ramification of the Court’s unwillingness to protect abortion rights and the legislature’s willingness to infringe upon them is elevated levels of clinic harassment and violence. Nationally, almost one in four clinics reports being the victim of “severe” violence, most commonly “bomb threats, death threats, stalking, and blockades[.]” Clinic violence peaked in the late 1990’s, but as buffer zone laws began to pass in states and municipalities in the late 1990’s and early 2000’s, clinic violence declined.
Buffer zones are not unique to abortion clinics, and in fact surround many facilities of everyday life. Schools; funeral homes and cemeteries; polling places; adult entertainment stores; and federal government buildings, including the Supreme Court building itself, are all subject to wide buffer zone protections. In one of the rare challenges to such a buffer zone that made it to the Supreme Court, a Tennessee politician wanted to be free to approach voters at polling locations. The Court recognized and stressed the importance of buffer zones in those locations. It ruled that the importance of buffer zones lay in their ability to protect voters’ ability to cast their vote “in an environment which is free from intimidation, harassment, confusion, obstruction, and undue influence.”
It was just such an environment that Massachusetts was trying to create with the MHFRA. Massachusetts was far from the only state suffering from extreme anti-choice violence, and indeed most likely modeled its own buffer zone law after one upheld in the 1994 case Madsen v. Women’s Health Center, Inc. That case involved a 36-foot buffer zone that was upheld as a constitutional free speech restriction. A later case, Schenck v. Pro-Choice Network of New York, upheld a 15 foot buffer zone and cited concerns about safety. The Court in that case also ruled that preventing violence was a sufficient government interest and urged deference to the State in creating a workable buffer zone because the State was in the best position to balance State interests with individual rights. Hill v. Colorado was decided in 2000 and reiterated the need for such deference, and also recognized a legitimate state interest in protecting people from the “harassment, the nuisance, the persistent importuning, the following, the dogging, and the implied threat of physical touching that can accompany an unwelcome approach[.]”
The State of Massachusetts believed this harassment was occurring at its clinics, but in McCullen the Court declined to follow buffer zone precedent. Despite a long line of cases holding that the freedom of speech is subject to restrictions which traces all the way back to Robertson v. Baldwin in 1897 the Court ruled that the MRHFA did not fit the modern test for a constitutional free speech restriction. That test, best articulated in Ward v. Rock Against Racism, requires that restrictions on free speech be content neutral and narrowly tailored to restrict speech no more than necessary to achieve the state interest. But the restriction need not be the least restrictive means possible if the speech is merely being restricted with regard to time, place, or manner. Though the Court in McCullen agreed that the MRHFA was content neutral, it felt the law was not narrowly tailored because less restrictive options may have been available.
This decision does not represent an appropriate application of free speech analysis, nor does it represent a proper balance between free speech and the fundamental right to privacy. What it represents instead is the Court choosing to prioritize free speech over abortion rights, although both are fundamental rights. One of the most important elements of a democratic government is that it protects the fundamental rights of its people from those who wish to infringe upon them, but the Court has declined to do so. Instead it continues to slowly back away from protecting abortion rights. It has done so under the guise of free speech, even going so far as to call the interactions between clinic protestors and their unwilling victims “consensual conversations”. If consensual conversation was their goal, willing participants would come to the protestors, as one plaintiff in McCullen admitted happened about 5% of the time. As some have asked since the decision, “if there is only one participant, is it even a conversation?”
The Supreme Court has sanctioned harassment in free speech clothing, and by all accounts the state of Massachusetts introduced evidence enough to make the Court aware of this. The opinion failed to acknowledge that opposition to abortion has led to eight murders; 17 attempted murders; 550 incidents of stalking; plus harassment and other violations of individual privacy of pro-choice doctors, patients, staff and advocates. Indeed, the Court mentions only two instances of the violence abortion clinics faced, despite its paramount importance to the case. The Court also made little to no mention of the evidence that buffer zones do decrease violence in, and increase access to, reproductive healthcare clinics. In the week following the decision, a Planned Parenthood in the state reported more no-shows than usual. Martha Coakley, the Massachusetts attorney general who unsuccessfully defended the buffer zone regulation, stated that since the buffer zone was struck down, many women “have had their access denied as a practical matter” because they have been afraid to access the clinic.
Given the rise of anti-abortion violence that occurred around the 1990’s, a law like the MRHFA provided vital protection to individuals who wished to avail themselves of abortion services. The consequences of not protecting these people from threats of violence are clear: protestors are emboldened to harass and in extreme cases attack; patients become uncomfortable and frightened; and for many, access to abortion becomes difficult or unthinkable as a practical matter.
The Court has signaled on several occasions its unwillingness to protect abortion as a fundamental right, and it is now signaling its unwillingness to protect women who access the service. The Court emboldens legislators to infringe even further upon an already weakening right, while vindicating those citizens who shame, harass, threaten, or harm abortion clinic patients. This decision may have long-standing effects on free speech analysis as well as abortion jurisprudence, and the Court will need to reconsider its ruling unless it truly intends to entrench harassment as a form of speech and upend abortion as a fundamental right.