Does a 35-foot, protest-free ‘buffer zone’ around the entrances of reproductive healthcare facilities violate First Amendment guarantees of free speech?
That was the hard question before the US Supreme Court on 15 January, in McCullen v Coakley, challenging a 2007 Massachusetts law. It is not a new question for the court, which upheld a Colorado buffer-zone law over a decade ago. But violence against abortion clinics has abated since the 1990s (while state laws sharply restricting abortions have increased), and the make-up of the court has changed. It is now markedly more hostile to abortion rights, which makes it more sympathetic to free-speech claims by anti-abortion activists.
Ideally, neither support nor opposition to abortion should matter in a First Amendment challenge to a buffer zone; but, of course, they do. Anti-abortion activists become fierce defenders of free speech when anti-abortion speech is at issue. Pro-choice advocates become fiercely protective of speech regulation - especially when they consider the frightening history of violence against abortion clinics.
So when I characterise support for the Massachusetts buffer zone as essentially emotional, I mean no disrespect. For the pro-choice community, the buffer zone will always be linked to the fatal 1994 assault on Boston-area Planned Parenthood clinics that inspired it. Two clinic workers were murdered; five workers and volunteers were wounded. The memory of that attack - the horror and fear it evoked - remains, especially for clinic workers and volunteer patient escorts, who dread running a gamut of protesters if, or when, the 35-foot buffer is eliminated.
Still, I have persistently opposed the buffer zone, from the beginning, even in the near aftermath of the clinic murders. I plead guilty to hard-heartedness. In opposing the buffer zone, I’m demanding that patients and clinic workers tolerate anti-abortion activists who are bound to engage in some unruly, uncivil, and not necessarily arms-length protests. I’m arguing that a woman’s right to choose and obtain abortions, and other reproductive-health services, doesn’t diminish her obligation to tolerate extremely irritating, occasionally hysterical, and potentially invasive protesters.