The Supreme Court unaimously decided Thursday that Massachusetts violated the First Amendment by excluding speech from a 35-foot "buffer zone" around abortion clinic driveways and entrances. McCullen v. Coakley is a victory for pro-life speech rights, although just how broad a victory is uncertain. The majority opinion by Chief Justice Roberts ruled for the sidewalk-counselor plaintiffs but rejected their argument that the Massachusetts law in question discriminated against pro-life speech. Before I discuss the implications of those holdings, let me highlight a different, significant way in which McCullen may advance the pro-life cause.
1. The counselors’ “outstretched hand.” The state law was challenged by Eleanor McCullen and other pro-life counselors who sought to engage women entering abortion clinics in quiet, personal conversation and offer them information and help concerning financial support, adoption, and other alternatives to abortion. Roberts’s opinion (joined by Breyer, Ginsburg, Kagan, and Sotomayor) held that the law "burden[s] substantially more speech than necessary" to accomplish the state's asserted goals of protecting public safety and preventing harassment or obstruction of women entering clinics. It noted that the state had plenty of more narrowly tailored means to prevent these harms; it also rejected the state’s argument that the plaintiffs could exercise speech from outside the buffer zone.
On the last point, the majority noted that McCullen, like other sidewalk counselors, sought to engage women with "a caring demeanor, a calm tone of voice, and direct eye contact" but that the 35-foot zone "often reduced her to raising her voice at patients from outside the zone—a mode of communication sharply at odds with the compassionate message she wishes to convey." As the Court explained, "It is easier to ignore a strained voice or a waving hand than a direct greeting or an outstretched arm.... If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners’ message."
Apart from its legal effect, this recognition, it seems to me, could be helpful in the ongoing battle for hearts and minds concerning abortion. The majority opinion—joined by four pro-abortion-rights justices—has explicitly acknowledged that sidewalk counselors seek to engage women compassionately and offer them real choices besides abortion. In an amicus brief I filed for the Democrats for Life of America and Clergy for Better Choices (a group of largely African-American clergy), we supported the counselors in arguing that the buffer zone wrongly “forced [them] into … a stereotyped mold … of a shouting protester.” The majority opinion agrees with this and has memorialized a more accurate description of pro-life counselors in the pages of the U.S. Reports. To employ the phrases from the Court’s opinion: The pro-life movement frequently offers—and it must offer—“an outstretched hand” rather than “a strained voice.”
“An outstretched hand” include the compassionate provision of alternatives that Eleanor McCullen and other sidewalk counselors offer. It means the kind of assistance offered by crisis pregnancy centers. "An outstreched hand" also means more of the social supports for women, children, and families that reduce the perceived need for abortion: better family-leave policies, child-care options, nutrition and health benefits, and assistance with adoption. A package of these benefits, the Pregnancy Assistance Fund, pushed by the Democrats for Life, was included in the Affordable Care Act. We need to fight our way through the ideological barriers, right and left, to such programs.
2. Abortion-speech buffers after McCullen. Pro-lifers, although happy with the invalidation of the law, are likely disappointed that majority explicitly rejected the claim that Massachusetts had discriminated against speech with anti-abortion content, which would have put the law in the most suspect category under the Free Speech Clause. The majority’s narrower ground—that the 35-foot zone covered far more speech than necessary—could leave in place other laws and injunctions that are less restrictive but that still specifically aim at speech outside abortion clinics. By rejecting the broader attack on the neutrality of abortion-speech laws, the majority also reaffirmed one part of the reasoning of Hill v. Colorado, the Court’s 2000 decision that had upheld an 8-foot “floating” buffer zone around clinic patrons and staff as they moved near clinic property. The Court had been asked to overrule Hill in McCullen, and there was some prospect it might do so. The majority said nothing substantively about Hill, but it could be argued that the reaffirmation of one part of Hill’s rationale signals the Court will ultimately leave Hill undisturbed.
This possibility angered Justices Scalia, Thomas, and Kennedy enough that they refused to join any of the majority opinion even though they surely agreed with its holding that the 35-foot zone was too burdensome. Scalia said in his concurrence that he “refuse[d] to take part in the assembling of an apparent but specious unanimity.” Scalia had a point: since the majority held the law invalid based on one challenge, it was gratuitous to validate the law against the separate challenge that it discriminated against anti-abortion speech. Moreover, the law is discriminatory in important ways: while setting up a very broad no-speech zone around clinic property, it allowed clinic employees to enter that space, where pretty clearly they could say favorable things about the clinic's work while pro-life critics were barred from entering.
On the other hand, parts of McCullen’s reasoning may still give grounds for challenging Hill. As Kevin Russell has pointed out at the SCOTUS Blog, the alternative regulations that Roberts mentioned as available to the state all had to do with directly preventing intimidation, obstruction, and harassment: the majority never said that these concerns would justify a set buffer around individual patrons and staff, and it is at least possible to argue that they do not. In any event, Roberts’s opinion signals—and he at least, among the five, will probably adhere to this—that any restriction will have to leave reasonable room for pro-life speakers to offer calm conversation (“the outstretched hand”), and not just distant shouting.
(Cross-posted, with minor differences, at The Whole Life Democrat)
Monday, June 23, 2014
For several years Marc and I have had occasional discussions about whether the conflicts in religious liberty—and perhaps in many other areas of constitutional law or public policy—are best perceived through the lens of a “tragic vision.” Marc’s excellent book argues that judges should have a sense of tragedy in that they recognize that state-religion disputes involve incommensurable values all of some worth, meaning that decisions in many cases unavoidably require the sacrifice of some goods. Continuing the analogy to dramatic genres, he contrasts the tragic sense with the comic sense, in which there is one metric of good by which outcomes and resolutions can be judged (and in a comedy things come out harmoniously in the end). Marc reacts, rightly I think, against the tendency of many church-state analysis to make tough questions seem simple, which inevitably involves giving short shrift to valid interests and claims on the other side.
Let me suggest, as I have to Marc over the years, that the sense of irony is as important as, or maybe more important than, the sense of tragedy. I don’t mean “irony” in the current sense of smirk, snark, detachment, or hipness. I loved David Letterman from the beginning, but this is more serious business. I mean it in the sense developed by Reinhold Niebuhr in The Irony of American History (1952), in which he argued that America, although in the moral right overall in fighting against Communism, would fall (indeed, had already fallen) into some of the same vices at its foes, because it did not practice humility and self-examination. Niebuhr described the biblical vision in which human “pretensions [to goodness] are the source of the ironic contrasts of strength leading to weakness, of wisdom issuing in foolishness,” and “virtue turning into vice”:
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Jonathan Cohn (almost the only serious/nuanced regular analyst at the New Republic these days) has a piece on the state of parental-leave laws, child-care support, and other work-family initiatives. Apparently the White House is hosting a meeting of academics, policy sorts, and business leaders on these issues next Monday.
Policies that allow parents to spend more time with young children and get better day care have clear, quantifiable costs. They also have clear, quantifiable benefits—not just in the form of better child and maternal health, but also in the form of better retention and possibly higher productivity. As a matter of fact, there’s reason to think that America’s retrograde treatment of working families doesn’t help the economy at all. It might actually be hurting it....
The case for more generous parental leave laws begins with the cost—and the fact it's one that most of the rest of world happily bears. Among developed nations, the U.S. is now the only one that doesn’t guarantee some kind of paid employee leave available for new parents. In these countries, firms don’t typically bear the costs directly. Instead, governments set up funds that work the way unemployment and disability insurance do—workers and employers pay into the funds, through some kind of payroll contribution, and then take money out of it when they become parents.
Whatever is the right amount of government encouragement on this question, isn't it substantially more than our country is doing? Would love to hear Lisa Schiltz's latest thoughts (following on these), and the thoughts of others.
