McCullen v. Coakley: Abortion Is Heading to the Supreme Court Again

On Monday, the Supreme Court agreed to hear out a challenge from anti-abortion activists. This time, it is not about the mothers or their wombs, but about the freedom of speech.

The challenge from seven anti-abortion petitioners is directed at the Massachusetts abortion clinic buffer law that was enacted in 2000, which bans demonstrations within 35 feet of entrances and driveways of abortion clinics. The petitioners claim that the Massachusetts law discriminately violates their First and Fourteenth Amendments; in their petition to the Supreme Court, they write that "The law restricts the speech of only those who wish to use public areas near abortion clinics to speak about abortion from a different point of view."

The petitioners are backed by anti-abortion activists, many of whom offer "sidewalk counseling" to women on their way to the clinics. They claim that the law unfairly keeps them from engaging patients in conversation at a closer distance. Similarly, Philip Moran, the petitioners' lawyers, said, "You can't stand outside 35 feet and communicate with people ... You have to have eye contact."

The Massachusetts buffer zone laws were established after a tragic attack was carried out in 1994 outside an abortion clinic in Brookline, Massachusetts, when abortion opponent John C. Salvi III shot two clinic workers to death and wounded five others.

Many legal challenges had been rejected prior to this case, but they were revived in 2007 when Governor Deval Patrick signed a bill extending the buffer zone from 18 to 35 feet.

In 2008, the First Circuit Court of Appeals upheld the law in its ruling in McCullen v. Coakley, stating that the law upholds both free speech and abortion patients' rights. The First Circuit acknowledged, "The nation is sharply divided about the morality of the practice and its place in a caring society ... But the right of the state to take reasonable steps to ensure the safe passage of persons wishing to enter health care facilities cannot seriously be questioned."

Speaking since the Supreme Court's grant of a writ of certiorari on Monday, Massachusetts Attorney General Martha Coakley reiterated her belief that the law "ensure[s] a women's right to safe access to health care facilities while preserving First Amendment rights... We look forward to defending this vitally important legislation before the Supreme Court."

Equally hopeful are the anti-abortion activists, who believe that the buffer zone laws are a "clear case of viewpoint discrimination." Executive director of the Life Legal Defense Foundation Dana Cody also expressed her optimism that the Supreme Court will not only overturn the law, "but also revisit some of its own prior precedents that led lower courts to believe that, as a matter of law, pro-life speech is less deserving of protection." Moran also mentioned that he and his clients were "delighted" that SCOTUS agreed to hear their case. "We think we have a good shot," he said on Monday.

In the past, SCOTUS has rejected a number of cases, most notably from Indiana and Colorado, which would have effectively reopened the debate on abortion, so their reason for reopening McCullen would be interesting to explore. Given the optimism from both sides of the case, SCOTUS's decision is not going to be easily predictable.

On one hand, given SCOTUS's sympathetic stance towards abortion-seekers, this hearing may serve as a once-and-for-all ruling that upholds McCullen, thereby setting a precedent for lower courts to allow buffer zones protecting women who seek abortion. On the other hand, SCOTUS may strengthen the scope of the First and Fourteenth Amendments, allowing anti-abortion activists to exercise their freedom of speech anytime, anywhere.

So, watch this space. Given the fine line between protecting abortion seekers' rights and the fundamental freedoms provided by the First and Fourteenth Amendments, this is definitely another SCOTUS judgment for which we should keep our eyes peeled.