A zone that should be left alone
AS I WALKED toward the entrance of the Planned Parenthood health center on Commonwealth Avenue this week, a small group of protesters lightly pounced. One woman offered me a rose. Another gave me some literature with Bible verses and pictures of a fetus at various stages of development. "There's good reading in there," she said. Another prayed with rosary beads. It wasn't exactly comfortable, but everyone was polite. And everyone stayed outside a bright yellow half-circle painted on the ground.
I was struck by the contrast to the common scene outside the health center in past decades, when antiabortion zealots screamed, chanted, blocked the doors, grabbed at women trying to enter, and photographed license plates. It was a time when women's health centers offering abortions were routinely bombed, burned, or doused with butyric acid. When staffers received letters purporting to contain anthrax. When John Salvi shot and killed two women and injured five others at two women's health centers in Brookline.
What's changed, according to many advocates, is the adoption of the Massachusetts buffer zone law, which creates a protected area for patients and employees a fixed 35 feet from the entrances to health centers. The law achieves a delicate balance between the free speech rights of abortion protesters and the rights of women to safely access the center. "It's a very peaceful coexistence," said Martha Walz, president of the Planned Parenthood League of Massachusetts and a coauthor of the 2007 law. "We no longer have that in-your-face harassment. The tension levels are way down. The law is working for everybody."
Now the US Supreme Court has announced it will hear a challenge to the Massachusetts buffer zone law in its current session, which began this week. In McCullen v. Coakley, several "sidewalk counselors" claim their views against abortion are being singled out, and that the buffer zone prevents them from the "close personal contact" they seek with patients, making their message ineffective. Attorney General Martha Coakley will be defending the law before the court.
Most constitutional challenges involve a clash of competing rights, and the buffer zone is no different. The First Amendment isn't absolute; the high court already has said that government can place reasonable restrictions on the "time, place, and manner" of speech. The question is whether the buffer zone restrictions are narrow enough to pass constitutional muster, and the Massachusetts law has been upheld twice by the federal district court and twice by an appeals court on those grounds. As for the "effectiveness'' of the protesters' message, the courts have agreed that the right to speak does not imply an obligation to listen.
It's hard to see how even this conservative Supreme Court could take issue with the Massachusetts buffer zone. It does nothing to stifle free speech or prayerful protest, it only moves it 35 feet from the clinic door. It's hardly different from the familiar laws that prohibit political candidates from distributing campaign literature within 150 feet of a polling place — or from the Supreme Court's own rules, reissued just this June, which establish a no-protest zone on the courthouse grounds, including the marble plaza before it.
Indeed, in 2000, the Supreme Court upheld the constitutionality of a similar buffer zone law by a 6-3 margin. In Hill v. Colorado, the court ruled that the law was narrowly written to serve the government's interest in public health and safety, and that it was the protesters' intrusive conduct, not the content of their message, that was being regulated.
Still, advocates for safe access to abortion and other women's health services have reason to be concerned. The court's willingness to hear the plaintiffs' challenge in the first place is worrisome, because this is not a case where two lower courts have made incompatible rulings. And this court has shown that its interpretation of the First Amendment can be quite sweeping, as with the Citizens United decision that lifted restrictions on political speech (i.e. campaign contributions) from corporations.
The decision to terminate a pregnancy is wrenching enough without women having to run into an unprotected gantlet. Even people who are deeply ambivalent about abortion shouldn't condone women being terrorized. The Constitution rightly protects free expression. It needn't make room for bullying.
Renée Loth's column appears regularly in the Globe.