The
suit challenging the law was brought forth by 77 year-old grandmother
Eleanor McCullen and other pro-life advocates who offer sidewalk
counseling to women entering abortion clinics and was represented by the
Alliance Defending Freedom. Massachusetts' 2007 law on abortion clinic
protest had created 35 feet "no pro-life speech zones", so-called
"buffer zones" around abortion clinics, which extended onto public
sidewalks. The policy targeted any form of protest to abortion, verbally
or silently. Pro-life advocates wearing a pro-life t-shirt, holding a
sign, or distributing pamphlets while in the "no pro-life speech zone"
outside an abortion clinic could be arrested and convicted of criminal
charges. The law both censored and discriminated against anyone
expressing pro-life views while clinic employees could say whatever they
wanted within the restricted zone.
The
Court ruled unanimously that the Massachusetts law violates the First
Amendment, noting, "By its very terms, the Act restricts access to
'public way[s]' and 'sidewalk[s],' places that have traditionally been
open for speech activities and that the Court has accordingly labeled
'traditional public fora.'" However, Justices split on the reason why.
The majority opinion, backed by Justices Roberts, Ginsburg, Breyer,
Sotomayor, and Kagan, found the law unconstitutional because its limits
on speech were too broad. Meanwhile, the minority opinion, supported by
Justices Scalia, Kenney and Thomas, said the law unfairly restricted
pro-life speech but allowed abortion clinic employees to speak freely.
Justice Alito, concurring in judgment, called the Massachusetts law "blatant viewpoint discrimination" stating,
"Consider
this 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." The sidewalk counselor and the
clinic employee expressed opposing viewpoints, but only the first
violated the statute.
Or
suppose that the issue is not abortion but the safety of a particular
facility. Suppose that there was a recent report of a botched
abortion at the clinic. A non employee may not enter the buffer zone to
warn about the clinic's health record, but an employee may enter and
tell prospective clients that the clinic is safe.
It
is clear on the face of the Massachusetts law that it discriminates
based on viewpoint. Speech in favor of the clinic and its work by
employees and agents is permitted; speech criticizing the clinic and its
work is a crime. This is blatant viewpoint discrimination.
In
this case, I do not think that it is possible to reach a judgment about
the intent of the Massachusetts Legislature without taking into account
the fact that the law that the legislature enacted blatantly
discriminates based on viewpoint."
Lead counsel in McCullen v. Coakley, Mark Rienzi, professor of constitutional law at Catholic University of America's Columbus School of Law, commented
after the decision, "Americans have the freedom to talk to whomever
they please on public sidewalks. That includes peaceful pro-lifers like
Eleanor McCullen, who just wants to offer information and help to women
who would like it. The Supreme Court has affirmed a critical freedom
that has been an essential part of American life since the nation's
founding."
Pro-life
handouts were an important part of the case. A historian testified to
the Court on the use of pamphlets as an historic and important method of
communication, extending back to the American Revolution: "Then, as
now, it was seen that the pamphlet allowed one to do things that were
not possible in any other form."
Then, pamphlets including Thomas Paine's Common Sense (1776) and John Dickinson, Letters from a Farmer in Pennsylvania (1767), helped popularize arguments for freedom leading to the American Revolution and ultimately independence from tyranny.
Now,
the simple pamphlet lets a woman know that she does not need to face an
unexpected pregnancy alone and where she can go to receive emotional
and practical support. The pamphlet shows her pictures of the
development of a child in the womb and explains what milestones are
taking place with her son or daughter. The pamphlet helps her make the
decision to escape the 'tyranny' of abortion.
PNCI applauds the Supreme Court decision.