Questions Remain in the Wake of McCullen v. Coakley Argument

LLDF Legal Director, Katie Short

Last Wednesday, at the United States Supreme Court, I had the privilege of joining many of my colleagues in the fight for the rights of the unborn and their advocates as we listened to the oral argument in the case of McCullen v. Coakley,  challenging a Massachusetts law creating a 35-foot buffer zone around abortion clinic entrances.

[Read the transcript here]

As many commentators have noted, the law appears unlikely to survive. Chief Justice Roberts maintained an unnerving silence throughout the argument, but his past record on free speech issues strongly suggests that he will join with Justices Scalia, Thomas, Kennedy, and Alito in voting to strike the law down.

Two parts of the argument held particular significance for me. First, Mark Rienzi, the attorney for the pro-lifers, cited the Ninth Circuit decision in Hoye v. Oakland to support his point that the Massachusetts law was viewpoint discriminatory in allowing clinic employees in the buffer zone “in the scope of their employment,” meaning encouraging women to enter the clinic. In fact, Hoye was the only non-Supreme Court case mentioned during the argument. Second, I was pleased to hear Justice Kagan asking Mr. Rienzi the very questions I had posed to him during a preparatory session held a couple of days before the argument.

After the argument, I joined several other attorneys gathered at the offices of the American Center for Law and Justice, just a block from the Supreme Court. Not surprisingly, most of our conversation over lunch revolved around the oral argument and potential outcomes of the case. But we also shared our thoughts and concerns about the overall direction of the battle for free speech for pro-life advocates.

For example, what would it mean if the Court issued a very narrow ruling, striking down the Massachusetts 35-foot zone as overbroad, but leaving open the door to somewhat smaller zones?

What about the Hill v. Colorado decision, upholding 8-foot no-approach laws? Would the Supreme Court revisit that decision, or was the Massachusetts law so different in kind that it did not provide a vehicle for reconsidering Hill?

What about the fact that the Massachusetts law applied only around abortion clinics? Would the Court address whether such a loaded restriction could ever pass constitutional muster?

Massachusetts and others had argued that the buffer zone was constitutional because of the “unique” history of violence and obstruction of clinics in that state. If the Supreme Court accepted the idea that, as the Solicitor General argued, “History matters,” would that provide a road map to abortion advocates as to how to justify even more targeted laws through creating such a “history” in as many jurisdictions as possible?

The McCullen decision, which will come out before the end of June, will answer some of these questions. But whatever the outcome, three things are certain: abortion advocates will continue their efforts to stifle pro-life speech; pro-life advocates will refuse to stand by silently as babies are killed in their mothers’ wombs; and LLDF will fight for the dedicated men and women, like Eleanor McCullen, who pour themselves out for the innocent unborn and their parents.