The Supreme Court just handed down its decision in McCullen v. Coakely. It’s not pretty, but it could be worse. For now the concept of the buffer zone survives, although the 35 foot buffer zone adopted by the state of Massachusetts has been struck down. It’s not a total loss, and it is at least encouraging that the unanimous opinion speaks favorably of various other approaches states can take to address congestion and violence in front of abortion clinics.
Of course, it’s less than encouraging how little the court seems to hear states when they say “these things don’t work, though.” And that’s if you’ve got a state that gives a damn in the first place. That’s not what I want to talk about, though. I’m too angry. I’m angry that the opinion is unquestioningly and simperingly sympathetic to the protestors.
You can read the entirety of the opinion if you wish; I can’t recommend that
you do. For now, go ahead and skip ahead to page 19 of the opinion.* Beneath the “A” is where the court addresses the real meat of the matter: has the buffer zone placed a burden on the free speech activities of these sweet little grandmotherly types?
Yes, indeed it has! And the examples cited in the opinion all come from the protesters themselves. Who would know better, and report more accurately? “The burdens on petitioners’ speech have clearly taken their toll. Although McCullen claims that she has persuaded about 8o women not to terminate their pregnancies since the 2007 amendment… she also says that she reaches “far fewer people” than she did before the amendment.” So, the amendment has resulted in far fewer women being “reached,” has it? And “reached” by what definition? We know that the antis sometimes scare clients off, sometimes cause them to reschedule, sometimes even get them into the CPC – hell, maybe they actually have convinced some clients not to get the procedure. But I’m not sure that’s “reaching” people as a strictly factual matter, you know? And I’m also not sure self-reporting from the antis is all that great.
The court is, though. They cite another anti: “She estimated having about 100 successful interactions over the years before the 2007 amendment, but not a single one since.” Again, I think most escorts know that antis have a pretty wonky sense of “success,” and I’m still pretty skeptical of… well, of anything that comes out of an anti’s mouth, quite frankly. But hey, here’s another anti quoted in the court’s opinion: “…[O]nly one woman out of 100 will make the effort to walk across [the street] to speak with [her].” So we’re clear: the court says the buffer zone has placed a substantial burden on protesters, because they are having a “lower success” rate. We’re all clear on that? OK!
The court goes on to describe the difficulty of placing literature “near their hands,” an issue on which McCullen is quoted earlier in the opinion: “For example, in uncontradicted testimony, McCullen explained that she often cannot distinguish patients from passerby outside the Boston clinic.” The buffer zone, you see, reduces the length that a client must walk while subject to these interactions, dramatically lessening that precious window of time in which antis must decide whether a given woman walking down the street is headed to the book store, the taco stand, or the abortion clinic.
In the days to come, there will be plenty of in-depth, intelligent legal analysis, which I look forward to reading. But clients trying to get in the abortion clinic do not have the luxury of considering only the legal complexities at play. Clients trying to access abortion are doing so in a world where, overwhelmingly, men believes themselves to be utterly entitled to the time, personal space, and bodies of women as a class. And within that cultural milieu, seeing the same thing spelled out by the court, this unanimous opinion that the First Amendment rights of the antis are violated when they don’t get to know precisely what a woman walking down the street is up to, when they are obliged to “raise their voices,” when good gawd, maybe women do not want to walk across the street to talk to them… well, that’s not a message that really needed repeating, now was it?
This decision handed down today does not exist in a legal vacuum; the law of the land is not supportive of women’s bodily autonomy in general. And it does not exist in a social vacuum: the message of this vulgar opinion is one women are used to hearing every damn day: you belong not to yourself, but to others. When you walk down the sidewalk on Market between 1st and 2nd while female, the antis swarm you. They assume you are there for an abortion. They do not take no for an answer from passerby any more than they do from clients. They will shove literature in clients’ faces no matter how many times they are told no.
And now they have a unanimous ruling from the highest court in the land that does not merely strike down buffer zones, but does so in language that glowingly affirms every last ugly bit of entitlement and lack of respect for consent that I have seen out on the sidewalk. Nice.
* (I’m using the PDF of the slip opinion available on the court’s website.)