On Wednesday, the Supreme Court heard oral arguments for its first case on abortion clinic "buffer zones" since 2000. The case challenges a 2007 Massachusetts law imposing a 35-foot buffer zone around abortion-providing women's clinics in the state. And although the law was put in place as a response to aggressive harassment of patients and staff at some clinics, the representative protester for those challenging the law is Eleanor McCullen, a polite, "grandmotherly," 77-year-old activist. Who could be mad at her?
"Buffer zone" laws — which provide a "bubble" or buffer around clinic entrances or patients — are not unique to Massachusetts, nor are they unique to abortion-providing clinics. They're meant to balance the constitutionally-protected right to free speech with other constitutionally-protected rights, the right to conduct your daily business. Polling places are generally subject to their own versions of protester buffer zones. And some state laws provide buffer zones around funeral services. Even the Supreme Court building has a protester buffer zone.
But a handful of Massachusetts anti-abortion protesters say that the state law is too broad, and that it violates their First Amendment rights. McCullen's legal team is asking the court to strike down all buffer zones as unconstitutional, and throw out an earlier ruling from the high court protecting those zones. Colorado and Montana also have state-wide clinic buffer zones, as do a handful of municipalities.
The Supreme Court upheld the Colorado law in 2000 even though that measure is more complicated that Massachusetts's law: it gives patients an 18-foot "bubble" once they were within 100 feet of a clinic. Because the Massachusetts law contains an exception for clinic employees, McCullen and others are hoping the Supreme Court will find that the state law favors pro-choice speech over anti-abortion speech.
The court's recent record on First Amendment cases indicates that the current Supreme Court could be sympathetic to that argument to some extent. As MSNBC's Irin Carmon explains, it's less likely — but not impossible! — that the court would do as McCullen asks, and find all clinic buffer zone laws unconstitutional. But the Massachusetts law could very well be in some jeopardy. During today's oral arguments, Justices Kennedy, Scalia, and Alito all expressed skepticism towards the Massachusetts law. Chief Justice Roberts asked no questions (Justice Clarence Thomas, who dissented in the 2000 case, pretty much never asks questions.)
McCullen has done her best to counter the stereotypical image of angry, aggressive protesters hounding scared young women, possibly hoping to de-emphasize the public safety issues at risk by providing a counter-narrative. With two constitutionally-protected rights competing against each other here, McCullen's legal team pits the gentle image of the grandmother against the law's patient protections. And for some, it works. For example, here is how The New York Times described McCullen's regular protests outside of a Boston Planned Parenthood clinic:
On Wednesday morning, Ms. McCullen said the law frustrated her attempts to talk to women entering the clinic. She said she had just moments to try to make contact before she had to pull up short.
She is 77, and she said she posed no threat. “I am 5 feet 1 inch tall,” she said in a sworn statement filed in the case. “My body type can be described as ‘plump.’ I am a mother and grandmother.”
But Massachusetts's own history of abortion protests is a little more complicated. Before the 2007 law was in place, Carmon notes, protesters used umbrellas to try and push volunteer "escorts" away from patients. Protesters also physically prevented patients from entering the clinic. The ACLU's friend-of-the-court brief for the buffer zone case details other examples:
The Brookline Murders: In 1994, John C. Salvi III opened fire at a Brookline Planned Parenthood clinic. He killed Shannon Elizabeth Lowney, who was working there at the time. Three others were wounded. Salvi then moved on to a second abortion-providing clinic in Brookline. He killed the receptionist there, Leanne Nichols, and wounded two others.
Gail Kaplan, Massachusetts Planned Parenthood Clinic Escort: "I have often been spit upon while escorting a patient into the clinic since they got so close to me while shouting their protests." Kaplan also describes
"Vanessa B.," From a 1998 incident report: "One person was carrying a fake baby doll and was yelling, "It's alive. You see what you're doing!" Another person had a tape recorder and was playing a tape with a child crying, "Mommy, Mommy"…Bad enough I was scared coming here, afraid I might get shot"
Planned Parenthood's Massachusetts Head of Security, Michael T. Baniukiewicz described protesters near the parking garage for a Planned Parenthood clinic "wearing Brookline Police hats and jerseys while standing near the entrance to the parking lot in front of Women's Health Services. They carried clipboards and had patients write on clipboards. These patients appeared to be frightened and upset when they learned that [they] were not police. Patients informed me that they had provided their names, addresses, and telephone numbers."
And that doesn't even get into this collection of stories shared by Erin Matson, who has worked as a clinic escort and has seen all manner of things that would belie the image presented by McCullen. She put together this list as a specific response to this case.
Trucks w images of Dr. Tiller, who was murdered, next to images of doctor in that clinic. Image of blood dripping around names. Subtle, no.— Erin Matson (@erintothemax) January 15, 2014
Have you ever seen someone from Army of God on a bullhorn before? I have. The body language is all violence could begin at any moment.— Erin Matson (@erintothemax) January 15, 2014
Mother Jones flagged even more examples of patient and employee harassment before the 2007 law. According to Massachusetts state officials, the 2007 law works to prevent the sort of harassment detailed above. Now, a somewhat skeptical Supreme Court will decide whether the law's protection of the constitutionally-protected right to abortion access weighs less than the First Amendment.