The Last Person a Woman Sees Before Getting an Abortion

The Supreme Court struck down a Massachusetts law creating a 35-foot buffer zone around abortion clinics. It's a narrow decision that says a lot about free speech.

In a unanimous decision on Thursday, the Supreme Court struck down a Massachusetts law that prevented anyone from standing within a 35-foot buffer zone outside of abortion clinics. The law was intended to prevent abortion opponents from blocking women's access to the facilities; local law-enforcement officials testified that significant clashes frequently occurred just outside clinics' doors.

Before this buffer zone was established in 2007, a slightly milder, fuzzier statute prohibited people from getting within six feet of someone “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling" within 18 feet of the driveways or doorways of clinics. But, as Boston Police Captain William B. Evans testified to the Massachusetts legislature in 2007, this wasn't enough: Some of these buffer zones got so crowded that they looked like "a goalie's crease." Fixed buffer zones, he said, would "make our job so much easier."

"Of course they would. But that is not enough to satisfy the First Amendment," wrote Chief Justice John Roberts for the Court. "A painted line on the sidewalk is easy to enforce, but the prime objective of the First Amendment is not efficiency." The Court suggested a number of alternative measures that could be used by towns that frequently have to deal with intense clashes, like specifically tailored court orders.

But really, Roberts wrote, it's not clear that these kinds of clashes are actually happening. He pointed to Evans's testimony that his officers had made “no more than five or so arrests” at Boston's Planned Parenthood; even in those cases, there were no successful prosecutions. "Far from being 'widespread,' the problem appears from the record to be limited principally to the Boston clinic on Saturday mornings," the chief justice observed.

Indeed, the facts of the case suggest that something more interesting than scream-filled protests was happening at these clinics: People have been trying to persuade others to change their minds about having an abortion.

The decision described interactions between women and protesters like Eleanor McCullen, for whom the case is named, like this:

[She] will typically initiate a conversation this way: "Good morning, may I give you my literature? Is there anything I can do for you? I’m available if you have any questions." If woman seems receptive, McCullen will provide additional information. McCullen and the other petitioners consider it essential to maintain a caring demeanor, a calm tone of voice, and direct eye contact during these exchanges. Such interactions, petitioners believe, are a much more effective means of dissuading women from having abortions than confrontational methods such as shouting or brandishing signs, which in petitioners’ view tend only to antagonize their intended audience.

Justice Antonin Scalia reflected on this in a concurrence. "Is it harassment, one wonders, for Eleanor McCullen to ask a woman, quietly and politely, two times, whether she will take literature or whether she has any questions?" he asked.

Even though these direct, personal interactions may make some women uncomfortable, Scalia wrote, that's what the First Amendment is all about: allowing people to speak their mind and try to persuade others to see things the same way. This is especially true in politically charged public spaces, like the streets outside abortion clinics (emphasis added):

It blinks reality to say, as the majority does, that a blanket prohibition on the use of streets and sidewalks where speech on only one politically controversial topic is likely to occurand where that speech can most effectively be communicated—is not content-based. Would the Court exempt from strict scrutiny a law banning access to the streets and sidewalks surrounding the site of the Republican National Convention? Or those used annually to commemorate the 1965 Selma-to-Montgomery civil rights marches? Or those outside the Internal Revenue Service? Surely not.

Of course, conversations outside of abortion clinics are very different from casual chats on any other street. Even if they're polite, these interactions may still feel coercive. Getting an abortion is a big choice, freighted with emotion; it's naïve to imagine this experience as a potential exercise in sterile, civil discourse. But that doesn't make free speech any less important, the justices ruled.

As Tom Goldstein writes at SCOTUSblog, the decision in McCullen is pretty narrow—don't expect widespread changes to protections for women who want to get abortions to follow from this ruling.
The upshot of today's ruling is that an abortion clinic buffer zone is presumptively unconstitutional. Instead, a state has to more narrowly target clinic obstructions. For example, the police can tell protesters to move aside to let a woman through to the clinic. But it cannot prohibit protesters from being on the sidewalks in the first instance.

As a defense of free speech, though, this ruling is remarkable, not least because it suggests that persuasion really can work. "In unrefuted testimony," the decision reads, "petitioners say they have collectively persuaded hundreds of women to forgo abortions."