In many respects, the U.S. Supreme Court’s decision in McCullen v. Coakley, invalidating a Massachusetts law that established 35-foot protest-free buffer zones around entrances to abortion clinics, seems to be a straightforward application of well-settled First Amendment principles protecting speech on public sidewalks.
But the decision is more remarkable for what it does not protect, or even deem worth balancing against the rights of those who wish to express opposition to abortion. Nowhere in the opinion does the court give credence to, or even seem to regard as worth protecting, the rights of patients or staff at abortion clinics to pursue their fundamental rights without intimidation, without in-your-face, unwanted harangues from so-called “counselors” who are nothing of the sort, or even the right simply to be let alone when trying to enter a clinic.
The rights of women seeking health care services from clinics seem irrelevant to the court. The court does acknowledge the importance of protecting public safety on streets and sidewalks. Even so, these important interests are given dismissive treatment. Massachusetts presented evidence that its prior efforts to keep the sidewalks and driveway entrances to clinics unobstructed had been ineffective and that the buffer zone worked far better. But the court dismissed this as a matter of “mere convenience.”
In contrast, when Eleanor McCullen complained that her preferred manner of protest — face-to-face leafletting and “sidewalk counseling” — was less effective than without the buffer zone, but still possible, the court did not similarly dismiss this as a “mere” desire for the most convenient or effective tool. Instead, it ruled that the curtailment of the “counselors’ ” ability to use the means they find most effective was the essence of the First Amendment violation.
The McCullen decision expands on disturbing trends from the court. It is yet another in a string of cases giving little or no regard to women’s privacy, agency or dignity in making reproductive health decisions or in accessing reproductive health services. The elevation of a protestor’s right to her most preferred and effective means of targeting individuals for unwanted harangues over an individuals’ right to be left alone or the public’s interest in the most effective means of protecting public safety should concern us all, no matter what one’s personal views on abortion.
Lucinda Finley is a professor at State University of New York at Buffalo Law School. She was counsel for clinics in Schenck v. Pro-Choice Network, a 1996 U.S. Supreme Court decision that upheld a buffer zone around reproductive health facilities.