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John A. Sparks / February 24, 2014

Abortion and Free Speech: The Granny Who Will Not Be Silenced

Editor’s note: In this four-part series, Dr. John Sparks, a constitutional law professor at Grove City College, reviews and analyzes key upcoming U.S. Supreme Court cases that will have an impact on American life and liberty.

A grandmother’s strong stand against abortion and Massachusetts’ attorney general’s resolve to enforce a buffer zone law, have brought both of them before the Supreme Court. Oral arguments have been heard in the case of McCullen v. Coakley.

McCullen is Eleanor McCullen, a 77-year-old grandmother who has devoted herself to trying to convince women entering abortion clinics to consider other alternatives. Coakley is Martha Coakley, the attorney general of Massachusetts charged with enforcing the buffer zone law, which makes it a crime to peacefully present a viewpoint within 35 feet of an abortion clinic.

Massachusetts argues that the legislature enacted the buffer zone law in 2007 to further public safety at what the law euphemistically calls “reproductive healthcare facilities.” The 35-foot zone is marked off with a visible yellow line. Entering that area to peacefully talk to a client is a criminal act.

Eleanor McCullen, and other pro-life supporters, argue that their quiet, friendly presentations to women who are entering or exiting these facilities are intended to persuade them that there are better alternatives to abortion. However, the appellants claim that their efforts are being thwarted by the buffer zone. In sworn deposition testimony given by McCullen in 2011, she said that the buffer zone had caused her to lose five to six opportunities per day to persuade those visiting the clinic to reject abortion. In the lawsuit filed against Massachusetts, McCullen’s lawyers say that the effect of the buffer is to deny McCullen and her pro-life volunteers their freedom of speech under the First Amendment as applied to the state of Massachusetts under the Fourteenth Amendment.

The case law on freedom of speech is well developed and clear. Citizens have a right to speech and expression free from governmental interference. However, speech is not an absolute right. It may be restricted in some instances. When a court judicially reviews regulations of speech, it will only allow it if the restraints on speech are: content and viewpoint neutral; designed or tailored so to serve the government’s interest, but no more; and allow the parties whose speech is restricted an alternative channel for expression and communication.

Attorney General Coakley asserts that the buffer zone law meets all of these requirements and should be allowed to stand constitutionally. McCullen points out, by contrast, that the law is not neutral on its face because it singles out abortion clinics for shielding and because it allows clinic employees into the zone as well as pro-choice “escorts” from organizations like Planned Parenthood. By doing so it gives special access to pro-choice proponents, but restrains pro-life counselors behind the yellow line.

McCullen’s further objection to the law is that it bans citizens like herself from public sidewalks and makes their conversation with clients illegal, even if the client has agreed to receive the message. If the law forbade harassment, it would be narrowly tailored to achieve public safety, but this law goes too far.

Thirdly, McCullen says the buffer in many cases means that she can only call out to them from a distance concerning the help that is available to them. She maintains that the kind of message she is conveying and the kind of conversation that she is seeking to have with willing hearers who are clinic clients cannot be accomplished through a megaphone or by shouting across the buffer barrier. In other words, there are no real alternatives available to pro-life advocates under the buffer zone statute.

What should be the outcome?

Court watchers note that three justices who dissented in an earlier case which upheld a similar Colorado statute are still on the court: Justices Anthony Kennedy, Antonin Scalia, and Clarence Thomas. They could easily be joined by Chief Justice John Roberts and Justice Samuel Alito in an opinion striking down the Massachusetts law as unconstitutional (Roberts and Alito were not on the court in 2000, when the Colorado case was ruled upon). That would give free-speech advocates new faith in the Supreme Court. More importantly, it would allow dedicated volunteers like Eleanor McCullen to continue to try to convince pregnant women to choose life. After all, in testimony given in 2011, McCullen stated that she had “persuaded more than 80 women not to have abortions.” That means that it is likely that well over 100 children owe their lives to the persistent granny who offers a real choice to women whose circumstances are often desperate and bleak.

Dr. John A. Sparks is the retired dean of the Calderwood School of Arts & Letters, Grove City College, Grove City, Pa., and teaches constitutional history and business Law on a part-time basis. He is a member of the State Bars of Michigan and Pennsylvania and is a fellow for educational policy for The Center for Vision & Values at Grove City College.

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