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Big Win for Free Speech and Pro-Life Efforts

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McCullen v. Coakley

The pro-abortion, political class received a significant blow to its efforts to silence those who have not surrendered at the altar of abortion.  In 2007 Massachusetts officials enacted a law that made it a crime to “knowingly stand on a ‘public way or sidewalk’ within 35 feet of an entrance or driveway to any ‘reproductive health care facility.’”  This is known as a “buffer zone” law.  The act only exempted “employees or agents of such facility acting within the scope of their employment.”

Eleanor McCullen was a sidewalk counselor who attempted to reach women considering abortion with a pro-life message, presenting other alternatives available for their consideration.  The “buffer zone” law would have prevented her from doing that by requiring her to abandon the usual spot where she would stand to engage in conversations with women, greatly stifling her message.  Therefore, she and others similarly situated sued to enjoin the law as a violation of their First Amendment rights.

The District Court and the First Circuit denied her claim, affirming the state law.  The First Circuit reasoned the law was a reasonable “time, place, and manner” regulation.

But the Supreme Court issued a decisive rebuke of their interpretation in a unanimous reversal of their decisions.  Chief Justice John Roberts, writing for the majority, said that although the law was not a form of viewpoint discrimination, but was content neutral, “it is not ‘narrowly tailored’ because it ‘burden[s] substantially more speech than is necessary to further the government’s legitimate interests.’”

The government alleged to be protecting “public safety, patient access to healthcare, and unobstructed use of public sidewalks and streets,” but the Court rightfully pointed out that the law already prohibited the deliberate obstruction of clinics.

On the other hand, it notices that the law does, in fact, “impose serious burdens on petitioners’ speech, depriving them of their two primary methods of communicating with arriving patients: close, personal conversations and distribution of literature.”

The Court also showed a proper understanding of the pro-life efforts relevant to the case.  The other side always tries to paint pro-life advocates as “domestic terrorists” wanting to blow up abortion clinics.  But that exploitative caricature bears no resemblance to the reality we see every day from committed, peaceful, caring individuals who volunteer their time to help women in distress.  The Court said:

While the Act may allow petitioners to “protest” outside the buffer zones, petitioners are not protestors; they seek not merely to express their opposition to abortion, but to engage in personal, caring, consensual conversations with women about various alternatives. It is thus no answer to say that petitioners can still be seen and heard by women within the buffer zones. If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners’ message.

The Court rejected the Commonwealth’s unrealistic assertion that the problem was “widespread,” noticing the evidenced suggested just the opposite.  It also rejected the almost comical assertion that this law would just make it easier for law enforcement.

“To meet the narrow tailoring requirement … the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier,” wrote the Chief Justice.

Leave it to radical elites to think that government ease should be the priority when looking at such delicate matters as life, death, women’s health, and our constitutional rights.