By process of elimination, we now know that the Supreme Court will deliver its decision in the Hobby Lobby reproductive-health coverage case on Monday. It's hard not to look at today's decision in McCullen v. Coakley, overturning buffer zones around clinics, for a gauge of the Court's temperature on the reality of abortion rights in America. The answer appears to be: warm on the good intentions of anti-abortion activists.
The Massachusetts law in McCullen is (or rather, was) pretty simple: It forbade people from entering or remaining "on a public way or sidewalk" within a 35-foot radius around an abortion clinic. There were exceptions tailored for people entering or leaving the facility, its employees, law enforcement, and people who were passing through the zone to get somewhere else. But the law barred people from entering the zone for other purposes. Violating the statute brought a $500 fine or up to 3 months in prison.
The Court held today that the law was unconstitutional as a restriction under the First Amendment. They did so unanimously, though there were three opinions issued: Chief Justice John Roberts, writing on behalf of the majority of the court, and then two additional opinions which concurred in the result but not the reasoning, one by Antonin Scalia (joined by Anthony Kennedy and, as ever, Clarence Thomas the Mute) and and one by Samuel Alito.
There are, in these three opinions, slightly differing reasons for declaring the law unconstitutional. The majority thinks the problem is that the law wasn't narrowly tailored enough, so that it excluded a much broader range of behavior than harassment. Scalia's small band of brothers and Alito, meanwhile, argue that the law isn't "content-neutral" enough to survive the First Amendment—that despite the ostensibly neutral text of the law, its effect was to discriminate against one viewpoint.
But it is pretty remarkable, considering how all the talk is about how divided the court is, and how contentious abortion issues are, that the justices all agree that buffer zones just don't work under the First Amendment.
That free speech is such an easy trump card here is almost the problem. The constitutional legalities of the situation may be relatively clear, minus quibbles over the doctrinal issue. But for the human being who has to run a gauntlet of protestors to get to the medical help she requires, the situation outside an abortion clinic isn't quite the affirmation of her country's values the Court seems to imagine it to be.
It can't be an accident that so much of the opinion seems to rely on an alternate-reality version of the pro-life protestor. Quoth Chief Justice Roberts, for example:
Some of the individuals who stand outside Massachusetts abortion clinics are fairly described as protestors, who express their moral or religious opposition to abortion through signs and chants or, in some cases, more aggressive methods such as face-to-face confrontation. Petitioners take a different tack. They attempt to engage women approaching the clinics in what they call "sidewalk counseling," which involves offering information about alternatives to abortion and help pursuing those options. Petitioner Eleanor McCullen, for instance, 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."
That does sound awfully grandma-ish and nice, doesn't it? I don't know that I really want to be offered "literature" on my way to an invasive medical procedure as a rule, even if it's say having my appendix out. But she only wants to help, he says! Later on he reaffirms this, continuing:
Petitioners are not protestors. They seek not merely to express their opposition to abortion, but to inform women of various alternatives and to provide help in pursuing them. Petitioners believe that they can accomplish this objective only through personal, caring, consensual conversations.
There are a few problems here. One is "caring" is kind of in the eye of the beholder, but the court seems to think the only thing that matters is whether these counselors intend to be caring. Another is that even if these are indeed "personal, caring, consensual conversations," they are fairly obviously a form of protest. These counselors are seeking to coerce women into reconsidering their decision to abort. Passive aggression is still aggression.
Then there is the fact that if the buffer zone is open even to the nicest of nice pro-life grandmas, it's also open to the screamers and the harassers. Not just the nice grandmas are going to get by now that buffer zones have been declared unconstitutional; it'll be everyone with something to say right up to and including your Westboro Baptist Church types. Roberts suggests that laws forbidding the harassment of clinic clients should be enough to protect everyone. But harassment's in the eye of the beholder too, and you know that these people will push every boundary they can to its limit to try and terrify the people entering the clinic.
Against that, Roberts posits the notion that public sidewalks are he calls, "venues for the exchange of ideas." Which sounds beautifully civic-minded on a first read, yes. It's classic First Amendment talk to pretend that public conversations on highly emotional topics proceed calmly and cautiously. It's also not at all what happens in the real world, as the comments section of just about any website will tell you. Not to mention that there have always been exceptions, including the Court's own buffer against the display of protest signs.
But then we have a Supreme Court filled with the likes of Justice Alito, who believes the following is an "entirely realistic situation":
A woman enters a buffer zone and heads haltingly toward the entrance. A sidewalk counselor, such as petitioners, enters the buffer zone, approaches the woman and says, "If you have doubts about an abortion, let me try to answer any questions you may have. The clinic will not give you good information." At the same time, a clinic employee, as instructed by the management, approaches the same woman and says, "Come inside and we will give you honest answers to all your questions."
Alito offers that example to demonstrate what he feels is the law's discrimination between the clinic worker's perspective, and the sidewalk counselor's. But all it shows is that he has no idea what actually happens outside a clinic. And that he's never even so much as watched YouTube videos, which suggest something much more complicated is going on.
[Photo via AP.]