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Reading the Supreme Court’s opinion in its unanimous decision striking down a Massachusetts law requiring a thirty-five foot buffer around abortion clinics is like entering another universe. In Chief Justice John Roberts’s rendering, the streets outside Planned Parenthood brim with tender, caring pamphleteers who just want women to know their options.
This is not to suggest that the holding is wrong. The opinion makes a strong case that the law, which prevents anyone from entering the buffer zone in order to speak with or distribute literature to women entering a clinic, violates constitutionally protected free speech. The issue is not that by legislating the buffer the Commonwealth of Massachusetts sought to elevate one political position over another—so-called viewpoint discrimination—but that it restricted more speech than it had to in order to achieve its allowable goal of protecting women entering clinics.
The justices do provide guidance for the Massachusetts legislature in crafting a new law that might reach the same ends without running afoul of the Constitution. Whatever legislation replaces the now-defunct buffer will be more challenging to enforce, but it seems possible for the state to thread this needle. Police will just have to work harder to provide the protection that they, with the aid of the buffer, were previously able to.
So the lesson here is not that it is impossible for states to safeguard women seeking abortions. But there are a few takeaways to consider.
First, the case is an object lesson in choosing the right plaintiff. Eleanor McCullen, the lead plaintiff, is a prototypical little old lady. Avowedly non-confrontational, she would rather hand out a leaflet than shout down a woman entering an abortion clinic. That McCullen does not stand for all the anti-abortion activists who array themselves around clinics is obvious to anyone who has witnessed or experienced those gauntlets of harassment. The choice of the sympathetic McCullen was no accident. For a detailed treatment of how lawyers select plaintiffs for maximum emotional impact, have a look at Adam Winkler’s Gunfight (2011), on D.C. v. Heller, the landmark gun-rights case. Winkler’s book is shallow on law but revealing on litigation strategy.
Second, Massachusetts’s particularly grim history with abortion had no influence on the justices. In 1994 a man named John Salvi murdered two people and injured five others in separate clinic shootings in Brookline, a town neighboring Boston. The buffer was in some respects a prophylactic measure against future violence of this kind. Obviously murder is already illegal and no new law was required to criminalize violence against women seeking abortions. But here the Court adamantly opposed prophylactics, instead favoring injunctive relief. This is in keeping with the Court’s general hostility to prior restraint. Typically liberals—and not only liberals—favor that position, but context changes everything.
Finally, the ruling could affect state politics. On the other side of McCullen v. Coakley is the Massachusetts attorney general, Martha Coakley, who is running for governor. She is best known nationally as the surefire winner in the state’s 2010 senatorial special election, who went on to lose a shocking upset to Scott Brown.
This is the second major case in the past week that has seen Coakley on the losing end. The other was at the Massachusetts Supreme Judicial Court, where Coakley argued that an attempt to repeal casino gambling in the state by means of a ballot initiative was illegal. The attorney general claimed that by inviting casino companies to apply for licenses—and pay related fees—the state had created an implied contract with the companies, which the voters could not break. The SJC, also unanimously, rejected this argument, setting up a battle that could overshadow even the governor’s race, so tightly and passionately contested is the casino issue here.
It would be unfair for voters to take the buffer zone loss out on Coakley; it is her job to defend the laws the state’s legislature passes. But op-eds are already calling her out for the casino case, and the buffer zone rebuke won’t do anything to enhance public perception of her judgment. Though Coakley is way ahead in polls for the Democratic nomination, bad press is mounting.
We could have seen this coming; on the basis of January’s oral arguments, there was never doubt as to the outcome of McCullen. The justices were obviously skeptical about the tailoring of the law, prepared to strike it down thanks to the extent of speech prohibited and the range of other protective measures available. The only question was in what terms the result would be handed down. As is so often the case, those terms are wonderfully logical but also divorced from real experience. The Court speaks of “‘sidewalk counseling,’ which involves offering information about alternatives to abortion and help pursuing those options.” In fact what these “counselors” offer is frequently nothing but terror. Now Massachusetts will have to devise a new way to allow the former while preventing the latter.
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