On June 26 the United States Supreme Court ruled unanimously in McCullen vs Coakley that pro-life advocates are entitled to stand on taxpayer-funded sidewalks outside abortion clinics to give women the pro-life perspective. This will ensure that pregnant women know pro-life help is available and give them the opportunity to hear the choice not presented by abortion clinics—to keep the baby.
For years, pro-life men and women have stood outside abortion clinics throughout the US and peacefully prayed and counselled women, informing them of options other than the termination of innocent life. In 2007, however, the State of Massachusetts passed a law that created a 35-foot buffer zone outside abortion facilities to prevent “harassment and violence”. This meant pro-life advocates committed a criminal act even if they simply stood on the sidewalk and did any act whatsoever even as peaceful as praying. On the other hand, an employee or volunteer at an abortion centre was allowed to talk to women in this same area and ultimately counsel them to abort their baby, a violent act of itself.
Without a challenge to the 2007 law, Massachusetts lawmakers were able to hide behind the veil of patients’ and clinic workers’ protection. The law allegedly aimed to keep out anybody intending to commit violence, but it also kept out pro-life witnesses as peaceful as the plaintiff Eleanor McCullen. The conservative Justices on the Supreme Court, with the exception of the Chief Justice, argued that this policy looked like a legislative stamp of approval for the pro-abortion industry. According to Justice Antonin Scalia, it was naïve to think that this law was something other than a political move. Justice Samuel Alito noted the discriminatory nature of the law whereby, “Critics of the clinic are silenced, while the clinic may authorise its employees to express speech in support of the clinic and its work.” These justices took on board the full impact of the Massachusetts law.
It is most welcome but perhaps no surprise that this was a 9-0 US Supreme Court decision. The First Amendment allows for the freedom of nearly all speech, even if the message delivered may be difficult to hear. McCullen was a 77-year-old woman who talked to women about the other options they had besides abortion. As McCullen stated, “Many women have abortions because they feel they have no other option or because they are pressured … Today’s ruling means I can offer loving help to a woman who wants it, and neither of us will go to jail for the discussion.”
Chief Justice John Roberts wrote in the majority opinion that while the state has “undeniably significant interests in maintaining public safety”, this particular violation of her right to free speech went too far. Traditionally, people have always been allowed to protest or partake in demonstrations on public sidewalks.
The State of Massachusetts was unable to argue why this type of zone was necessary for public safety. The Court wrote, “It identifies not a single prosecution or injunction against individuals outside abortion clinics since the 1990s.” A 1983 ruling on demonstrations in front of the Supreme Court supported this decision, stating public forums such as these have always been used as venues for people to express their opinions. Pro-life advocates had just as much right to share their thoughts on the abortion issue as anyone else in the area.
Unfortunately, the opinion did not go far enough in securing fully pro-life activists’ First Amendment rights. This is a victory for the pro-life movement, but it must proceed with caution. This decision leaves intact a similar 2000 Supreme Court ruling Hill vs Colorado. There, a law established a 100-foot buffer zone at all health care facilities and banned people from approaching anyone within eight feet of the building for counseling and education without the individual’s consent. It created a moving bubble that was hard to measure and even harder to enforce. Only three of the current justices supported overturning that ruling.
The Supreme Court decision should nevertheless cause great celebration in the pro-life movement. This is a very significant win in affirming a person’s right to free speech, which liberty-minded groups like the pro-choice American Civil Liberties Union ought to applaud, though they likely will not. If pro-choice advocates are truly in favour of choice, then this decision should not disturb them. It gives the US pro-life movement a freer opportunity to support women and give women real options in choosing to keep rather than abort their babies.
Sadly, of course, the pro-choice option enshrined in the Supreme Court decision Roe vs Wade remains in place, but this latest decision at least prevents obstruction to pro-lifers delivering the message of saving unborn life and where to find help.
The legal battle will rage on, as more cases will no doubt be introduced to challenge the minute loopholes that arise from any such court decisions. Both pro-life and pro-choice activists will likely bring new lawsuits pushing to answer the unanswered questions left from this decision.
But this victory, in its endorsement of the right to provide information and counselling in front of abortion clinics, is a significant victory to be celebrated certainly by the pro-life movement in the United States but also across the world.
Rachel Jankowski is a second-year law student at the University of Michigan Law School in the United States. This summer she is working as an intern for the ProLife Alliance in London for the US-based Alliance Defending Freedom’s Blackstone Legal Fellowship. Alliance Defending Freedom is a Christian organisation which serves to protect the right of people to practice their faith freely throughout the world.
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