By Dante Atkins / Daily Kos
This past Thursday, the U.S. Supreme Court issued a ruling in the case of McCullen v. Coakley. The decision came down in favor of the plaintiff, an anti-abortion grandmother who challenged a Massachusetts law requiring a 35-foot protest-free buffer zone around abortion-providing medical facilities. The plaintiff successfully contended that such a buffer zone violated her free speech rights as they applied to the concept of peaceful “sidewalk counseling”—a somewhat Orwellian turn of phrase for the often-abusive methods anti-abortion activists use in their attempts to dissuade women from seeking the medical care to which they have a legal right.
Lawyers for the commonwealth argued unsuccessfully that the buffer zone law was necessary to protect patients and staff from violence and intimidation, while plaintiffs argued (and the court agreed) that there were already laws in place to deal with the more aggressive forms of “counseling” that these protesters might offer. And in an ideal world, one in which every act of intimidation and violence was prosecuted to its fullest extent, the court’s unanimous decision might be the correct one.
But, this isn’t the world we live in.
According to Michelle Kinsey Bruns, an abortion access activist based in Virginia, there have been 4,700 incidents of violence at clinics since 1995. The Massachusetts law whose constitutionality was decided this week was passed in no small part owing to a multiple-casualty shooting in 1994 that impacted two clinics in the Boston area. And while the most severe acts of violence against life and property—the murders, the firebombings, the acid attacks—may often be prosecuted, the lesser evils of harassment, verbal abuse, stalking and implications of future violence that are such a frequent staple of anti-abortion protesters rarely are.
But even if, as the Supreme Court suggests in its ruling, that it is within the purview of law enforcement and the legislature to find the line between legitimate “sidewalk counseling” and the type of threatening activities that should be legitimately proscribed in the interests of the safety of patients, doctors and staff, it would not matter.
The entire idea of buffer zone legislation is not to protect against grandmothers like McCullen, but rather against the aspect of the anti-abortion movement that uses the tactics of domestic terrorism to achieve its ends. The entire point of public postings of photos of both patients and doctors, of taking down license plate numbers, of the vitriolic verbal abuse, and yes, the bombings and the murders, is to convince patients, doctors and staff that their physical safety is on the line should they take advantage of the services and employment that the constitution guarantees them. This is a movement, after all, that publicly celebrated the murder of a man who was providing a legal service to women with little other recourse.
Now the court has not eliminated the possibility of buffer zones entirely; as Tom Goldstein of SCOTUSblog notes, a buffer zone could theoretically be constitutional if the commonwealth could prove that existing remedies to guarantee access are not adequate. The problem? That would be adequate reasoning if the theoretical possibility of violence at clinics were only considered from this point forward, but the long pre-existing history of extreme clinic violence cannot be ignored, and it is simply a matter of time before the next incident. In the interim, anti-abortion activists will continue to push every possible button and skirt the fringes of legality in their efforts to make women feel unsafe in exercising their constitutional rights.
But wanting to make people feel unsafe is a hallmark of right-wing activism these days, whether it’s harassment at abortion clinics or a planned event by open carry activists to parade with assault rifles down the streets of a black neighborhood. And given that, maybe the Rude Pundit is right about his assessment of where to go from here:
Shit, let’s plaster the telephone poles with photos of the priests and church leaders, their addresses, their phone numbers. Let’s tell them as they pass, “We know where you live.” Let’s film everyone going into the church and post those on a website. Hey, it’s a public fuckin’ sidewalk, man. Let’s scream at them about how they’re terrible people, how they support raping children, how they have given money to help silence victims…”
Who knows? Maybe in states where it’s legal to open carry, these “sidewalk counselors” can show off their Second Amendment rights while exercising protected First Amendment speech on a public sidewalk. But restricting this sort of open-carry counseling to sidewalks in front of public churches. Perhaps conservatives should be counseled everywhere they might congregate: the CPAC convention perhaps, or public appearances of the stars of Duck Dynasty. One wonders how long it would take conservatives, and perhaps the Supreme Court, to reconsider the merits of the First Amendment right to counseling people on a public sidewalk.