Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Saturday, June 28, 2014

McCullen v. Coakley and Pro-Life Speech: "An Outstretched Hand," Not a "Strained Voice"

The Supreme Court unaimously decided Thursday that Massachusetts violated the First Amendment by excluding speech from a 35-foot "buffer zone" around abortion clinic driveways and entrances.  McCullen v. Coakley is a victory for pro-life speech rights, although just how broad a victory is uncertain.  The majority opinion by Chief Justice Roberts ruled for the sidewalk-counselor plaintiffs but rejected their argument that the Massachusetts law in question discriminated against pro-life speech.  Before I discuss the implications of those holdings, let me highlight a different, significant way in which McCullen may advance the pro-life cause.

1. The counselors’ “outstretched hand.”  The state law was challenged by Eleanor McCullen and other pro-life counselors who sought to engage women entering abortion clinics in quiet, personal conversation and offer them information and help concerning financial support, adoption, and other alternatives to abortion.  Roberts’s opinion (joined by Breyer, Ginsburg, Kagan, and Sotomayor) held that the law "burden[s] substantially more speech than necessary" to accomplish the state's asserted goals of protecting public safety and preventing harassment or obstruction of women entering clinics.  It noted that the state had plenty of more narrowly tailored means to prevent these harms; it also rejected the state’s argument that the plaintiffs could exercise speech from outside the buffer zone.

On the last point, the majority noted that McCullen, like other sidewalk counselors, sought to engage women with "a caring demeanor, a calm tone of voice, and direct eye contact" but that the 35-foot zone "often reduced her to raising her voice at patients from outside the zone—a mode of communica­tion sharply at odds with the compassionate message she wishes to convey."  As the Court explained, "It is easier to ignore a strained voice or a waving hand than a direct greeting or an outstretched arm....  If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners’ message."

Apart from its legal effect, this recognition, it seems to me, could be helpful in the ongoing battle for hearts and minds concerning abortion.  The majority opinion—joined by four pro-abortion-rights justices—has explicitly acknowledged that sidewalk counselors seek to engage women compassionately and offer them real choices besides abortion.  In an amicus brief I filed for the Democrats for Life of America and Clergy for Better Choices (a group of largely African-American clergy), we supported the counselors in arguing that the buffer zone wrongly “forced [them] into … a stereotyped mold … of a shouting protester.”  The majority opinion agrees with this and has memorialized a more accurate description of pro-life counselors in the pages of the U.S. Reports.  To employ the phrases from the Court’s opinion: The pro-life movement frequently offers—and it must offer—“an outstretched hand” rather than “a strained voice.”

“An outstretched hand” include the compassionate provision of alternatives that Eleanor McCullen and other sidewalk counselors offer.  It means the kind of assistance offered by crisis pregnancy centers. "An outstreched hand" also means more of the social supports for women, children, and families that reduce the perceived need for abortion: better family-leave policies, child-care options, nutrition and health benefits, and assistance with adoption.  A package of these benefits, the Pregnancy Assistance Fund, pushed by the Democrats for Life, was included in the Affordable Care Act.  We need to fight our way through the ideological barriers, right and left, to such programs. 

2. Abortion-speech buffers after McCullenPro-lifers, although happy with the invalidation of the law, are likely disappointed that majority explicitly rejected the claim that Massachusetts had discriminated against speech with anti-abortion content, which would have put the law in the most suspect category under the Free Speech Clause.  The majority’s narrower ground—that the 35-foot zone covered far more speech than necessary—could leave in place other laws and injunctions that are less restrictive but that still specifically aim at speech outside abortion clinics.  By rejecting the broader attack on the neutrality of abortion-speech laws, the majority also reaffirmed one part of the reasoning of Hill v. Colorado, the Court’s 2000 decision that had upheld an 8-foot “floating” buffer zone around clinic patrons and staff as they moved near clinic property.  The Court had been asked to overrule Hill in McCullen, and there was some prospect it might do so.  The majority said nothing substantively about Hill, but it could be argued that the reaffirmation of one part of Hill’s rationale signals the Court will ultimately leave Hill undisturbed.

This possibility angered Justices Scalia, Thomas, and Kennedy enough that they refused to join any of the majority opinion even though they surely agreed with its holding that the 35-foot zone was too burdensome.  Scalia said in his concurrence that he “refuse[d] to take part in the assembling of an apparent but specious unanimity.”  Scalia had a point: since the majority held the law invalid based on one challenge, it was gratuitous to validate the law against the separate challenge that it discriminated against anti-abortion speech.  Moreover, the law is discriminatory in important ways: while setting up a very broad no-speech zone around clinic property, it allowed clinic employees to enter that space, where pretty clearly they could say favorable things about the clinic's work while pro-life critics were barred from entering.

On the other hand, parts of McCullen’s reasoning may still give grounds for challenging Hill.  As Kevin Russell has pointed out at the SCOTUS Blog, the alternative regulations that Roberts mentioned as available to the state all had to do with directly preventing intimidation, obstruction, and harassment: the majority never said that these concerns would justify a set buffer around individual patrons and staff, and it is at least possible to argue that they do not.  In any event, Roberts’s opinion signals—and he at least, among the five, will probably adhere to this—that any restriction will have to leave reasonable room for pro-life speakers to offer calm conversation (“the outstretched hand”), and not just distant shouting.

(Cross-posted, with minor differences, at The Whole Life Democrat)


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