Yesterday the Supreme Court issued its opinion in McCullen v Coakley, about a Massachusetts law that creates a 35 foot buffer zone around abortion clinics. The Court unanimously struck down that law as an impermissible violation of one's speech rights. Apparently in yesterday's decision, the Court left intact their finding in Hill v CO that Colorados's law that persons cannot "knowingly approach" a person without that person's consent within 100 feet of an abortion clinic to talk to the person, hand them a leaflet, display a sign, or engage in conversation or protest. The issue seems to be the manner in which the MA law restricted speech. The Court apparently believed that the persons whose free speech rights were being infringed upon were not "protesters" (who are allowed outside buffer zones) but, persons who are sidewalk "counselors" who "seek to engage in personal, caring, consensual conversations with women about alternatives." Egregiously the Court has privileged the zealots speech rights over one's fundamental right to privacy.
How is the Massachusetts law a restriction of speech? It just restricts the place that speech can take place. There is no unqualified, unrestricted right to speech. Through many cases, except this one, the Court has said that one's free speech rights is relational to the public welfare and public safety also. Speech never was an absolute right. The Court noted there was not enough evidence for the MA law. Huh? Indeed, Massachusetts had passed the law to address not just the harassment and intimidation women face upon entering the clinics, but also outright violence as evidence by the shooting rampage at two clinics in 1994. So the Massachusetts law restricts speech within a space roughly half the distance from a pitcher's mound and home plate, and only in that space.
This case is not about free speech being balanced against the autonomy of women. What happened to a women's right to privacy, which the Court has said is a fundamental right? I don't mean the privacy that underwrites the Roe v Wade case that grants a right to an abortion. I mean more practical immediate privacy. Planned Parenthood and other women's health clinics typically provide not just abortion services but mammograms and pap smears. Does every women have to explain herself to the sidewalk "counselors" as she enters a clinic about what actual health services she is about to receive? Or more likely, are the "counselors" simply going to assume that any and every woman walking into a clinic is going to get an abortion and therefore bestow their "counseling" on all entering women anyway. What happened to the privacy rights of women granted in Griswold v CT of a woman to choose to discuss her health concerns only with her doctor and medical staff? Or to paraphrase former Justice Louis Brandeis, the right to be left the fuck alone?
The opinion really raises more questions than it answers. When does "quiet conversation" cross the line into intimidation and harassment? I don't have to raise my voice or swear to be intimidating. Questioning/badgering/asking for moral justification of someone about their private life choices, even in the most "polite" way, can be intimidating and harassing. Why does some religious zealot with no actual psychological or social work counseling get elevated to "counselor" who is entitled to offer their uninformed and unwanted ideological opinion to women? And are such laws really neutral in application? How many "counselors" outside of these clinics are abortion supporters affirming the woman's right to choice?
So much for one's fundamental right to privacy.