The following is a guest post from political scientist Joshua C. Wilson of the University of Denver. He is the author of The Street Politics of Abortion: Speech, Violence, and America’s Culture Wars.
While many expected that the U.S. Supreme Court would strike down the Massachusetts law regulating activism in front of abortion clinics, few expected their decision in McCullen v. Coakley to be unanimous in doing so. Anyone who stopped reading at this headline could not be faulted for thinking that the Court had deviated from its over 20-year long history of largely upholding the regulation of clinic-front activism, and that it had just handed a major victory to those who oppose abortion. A further reading, however, shows that while things have changed, the degree to which they have is not nearly as dramatic as the initial evidence suggests.
Going into and following McCullen,a primary fear of clinics in Massachusetts and across the country was that the ruling could undermine the network of legal protections that clinics have erected in front of their doors, creating the conditions for reinvigorating groups like Operation Rescue and the highly contentious street clashes between competing abortion activists that were seen in the 1980s and ‘90s. Justice Alito’s concurring opinion in McCullen is not explicit about where he stands in relation to the greater history of upheld clinic-front regulations, but there is no doubt about Justices Scalia, Thomas, and Kennedy, all of whom regularly dissented from the line of Supreme Court cases upholding related regulations. These three justices again take the opportunity now to call for the greater undoing of Court precedent and laws governing activism in front of clinics. It is important to note, however, that this concurrence largely reads like a dissent. That is because the 9-0 vote to strike down the Massachusetts law hides the 5-3 decision to largely uphold the network of clinic access protections, including some forms of buffer zones.
The majority opinion in McCullen, written by Chief Justice Roberts and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, is careful about specifying why Massachusetts went too far. Framing the petitioners who challenged the Massachusetts law as unaggressive concerned citizens who look to calmly impart information on the public sidewalk, and generally discrediting the claims of clinic-front chaos, the Court majority is writing from the perspective that the dominant politics of abortion have changed. They see the era of organized clinic blockades and violence as having passed, and thus the Massachusetts law that banned all but a few specifically excepted types of people from coming within 35 feet of clinic entrances and driveways was seen as excessive and unwarranted. In the Court’s words, the State’s “buffer zones burden substantially more speech than necessary” and “the Act operates to deprive petitioners of their two primary methods of communicating with patients.”
In making this argument, though, these five justices go out of their way to also note that the injunctions and other existing local, state, and federal laws that regulate clinic-front are activism are still valid and are in fact recommended means for clinics to control what happens in front of their doors.
This added point should give some degree of comfort to clinics—they have lost a battle, and the ability to regulate anti-abortion activists will be both more costly and difficult, but they still stand atop a collection of legal victories. The opinion, as well as the greater history of the McCullen case, however, also suggests reasons that clinics and pro-abortion rights legislators in Massachusetts and elsewhere should proceed with some caution.
When one looks at the broader history of the McCullen case, one sees how abortion-rights advocates created the grounds for this greater threat to their ability to legally regulate anti-abortion activists. McCullen was allowed to happen because the Massachusetts legislature decided to modify its existing law regulating activism in front of abortion clinics. Modeled after a Colorado law upheld by the Supreme Court in 2000, Massachusetts’ first regulation withstood constitutional challenges made by many of the same lawyers who were able to come back to successfully strike down the modified version of the law in McCullen.
In looking ahead to how the abortion-rights movement can respond to the Court’s ruling, they must be aware of again inviting challenges to what they have already won. The path forward for clinics is all the more difficult given that the Court majority sees the contemporary state of abortion politics to have so significantly changed. It would only take a little movement on the Court for clinics’ legal protections to begin to actually unravel.