McCullen v Coakley, which was argued in January, was an attack by anti-abortion activists on a Massachusetts law that permitted speech and assembly outside women’s health facilities, but imposed a buffer zone between demonstrators and clinic patients and staff. In response to years of anti-choice violence, harassment and interference with patient access, the Massachusetts legislature established a buffer zone of 35 feet. The law was intended to address the state’s multiple failed attempts to protect people entering and exiting abortion clinics from the protesters outside by keeping people who had no business at clinics a safe distance from their doors.
But the anti-choice demonstrators who showed up on a regular basis at Planned Parenthood and similar facilities in the state convinced the Court that the law violated the constitutional rights of those who simply wanted get up close and personal to patients—to talk, as in, talk women out of having abortions.
The 2007 statute was challenged by 77-year-old Petitioner Eleanor McCullen of the anti-choice group Operation Rescue, and other anti-choice activists. Their federal lawsuit argued that the buffer zone impeded their ability to speak to women to try to convince them to have babies, not abortions. At oral argument and in the opinion, the justices repeatedly painted the petitioners not as protestors, but as individuals who simply wanted to chat with other individuals—who, as it happened, did not wish to have that chat. The law, they claimed, interfered with their access not only to their chosen audience, but also to public streets, for the purpose of communicating their message. Bingo. Therein is the crux of the Court’s majority opinion: Access to the public square. “A virtue,” some justices called it, “not a vice.” Location, location, location.
After oral argument, most court observers and pro-choice activists predicted that there weren’t enough votes to uphold the law. But the fact that the decision was unanimous came as a big surprise. Although there were three separate opinions, each with different theories, they all found the law unconstitutional.
The Court’s majority Opinion, written by the ultra conservative Chief Justice John Roberts, was joined by the Court’s four-person liberal wing: Stephen Breyer, Ruth Bader Ginsberg, Sonia Sotomayor, and Elena Kagan. It finds the law unconstitutional not because it involves abortion, but because it interferes with soapbox speech, or what you might think of as sidewalk proselytizing. They found that the law was not specifically designed to muzzle these petitioners or their points or view, or keep only those who oppose abortion 35 feet from clinic doorways.
The somewhat tortured majority opinion—surely reached after intense negotiation and compromise—found that the statute in fact did not address the content of speech or the subject of abortion itself. Ironically, many supporters of the law have always said that this case was not really about free speech, because it didn’t ban speech or silence anti-choice evangelists, but merely structured the location of speech. (And that location was not even a significant distance away, as it sometimes has been at political conventions). But in the end the majority opinion did decide that even though the content of the speech was not targeted, limiting access to an open street forum was not permissible.