The US Supreme Court will hear arguments today in McCullen v. Coakley, a case that could rule buffer zones surrounding reproductive health-care facilities in Massachusetts unconstitutional. The Massachusetts law at issue “created a thirty-five-foot buffer zone, which means that no one may protest or approach potential patients within that area” surrounding a clinic. Anti-abortion activists challenged the law, claiming that it infringes on their First Amendment right to free speech.
Like many progressives, I am immediately skeptical of any law attempting to limit speech in public spaces, even when that speech is abhorrent. The First Amendment was created to protect unpopular speech- carving out speech we find offensive could have the effect of chilling important contrarian ideas around the country, the kind of conversations that contribute to a vibrant democracy.
But, at its core, this case is not about free speech. It is about protecting women and reproductive health clinic doctors and staff from anti-abortion extremists who are willing to resort to violence and murder to get their point across. I welcome laws that will make access to reproductive health care safer for women. Massachusetts adopted buffer zone laws after an anti-abortion extremist shot and killed two women and injured five others at two women’s health care clinics in the state.
And the buffer zone is working. Martha Walz, president of the Planned Parenthood League of Massachusetts, noted that since buffer zones were enacted, and later strengthened to a 35-foot bubble, “The tension levels are down; the law is working for everyone.”
The Justices often take cases where access to fundamental rights may conflict. Luckily, the Supreme Court has already weighed the significant interests at stake in considering the constitutionality of buffer zone laws. In Hill v. Colorado, a 6-3 decision authored by Justice Stevens, the Supreme Court upheld a Colorado buffer zone law. Basically, Colorado’s law established that you can’t come within 8 feet of an unwilling person within a pre-established 100-foot bubble immediately outside of health care facilities.
When Massachusetts’ state legislators began writing the buffer zone law, Massachusetts had “experienced repeated incidents of violence outside of Reproductive Health Care Facilities (RHCF’s)”, forcing Massachusetts courts to issue numerous injunctions prohibiting individuals from “engaging in intimidating activity at RHCF’s”. The legislature created a 35-foot buffer zone as a response to a very real public safety problem surrounding health care facilities in the state. Two women had been shot and killed and five others injured as a result of anti-abortion extremists outside of RHCF’s and many more were harassed and intimidated by “overly aggressive demonstrators” daily. Women who were trying to obtain reproductive health services, including abortions, were being intimidated and violently harassed while trying to exercise their fundamental rights.
Reproductive Health Care Facilities have proven to be battle grounds where anti-abortion extremists resort to extreme measures to take the right to choose an abortion out of a woman’s hands. Creating a 35-foot buffer zone is a common sense response to a very real threat.
Women should not also have to undertake “Herculean efforts to escape the cacophony of political protests.” The yelling and signage displayed by anti-abortion activists at clinic doors are just visible representations of the culture of shame that’s associated with women exercising bodily autonomy. Anti-abortion extremists use this shame on many fronts; the vitriol they spew extends far beyond clinic entrances.
Since Roe v. Wade, there has been an all-out attack on abortion rights in state legislatures across the country. 26 states states have imposed at least a 24-hour waiting period in between the time she receives counseling and the abortion is preformed, 41 states have prohibited abortion after a specified point in a woman’s pregnancy, and 39 states require an abortion be preformed by a licensed physician (even though similarly safe surgeries don’t require this).
These restrictions are just some of the ways anti-abortion activists have been able to chip away at a woman’s fundamental right to control her reproduction. Their insistence that they be allowed to shout and pray within a close proximity to women in order to save them from themselves is just another way they continue to disrespect women. Their violent history and extreme tactics should only strengthen claims that a buffer zone around reproductive health care facilities is necessary to protect a woman’s fundamental right to choose.
Anti-abortion extremists claim that the buffer zone is an unfair infringement on their right free speech because it “eradicates the opportunity to communicate from ‘normal conversational distance,'” but it is not clear that engaging in this kind of conversation 35 feet away from the clinic entrance as opposed to at the clinic entrance has any “chilling” effect on the breadth of discourse. What is clear, however, is that anti-abortion activists have a displayed history of violence that ushered the genesis of this buffer zone. It’s worrisome, then, that the notoriously conservative Supreme Court has chosen to take this case given that they’ve already ruled on one similar.