Friday, June 27, 2014
The LATimes may not have liked SCOTUS's decision in McCullen v. Coakley, but renowned constitutional scholar Laurence Tribe finds the decision "unquestionably" correct. In his NYTimes op-ed, he writes:
Cases like McCullen force us to balance competing constitutional values: free speech against the safety and autonomy of women. Here the balance tips unquestionably toward speech. A woman’s right to choose whether or not to terminate her pregnancy under Roe v. Wade guarantees her protection from the state. This protection does not include a right to be shielded by the state from fellow citizens hoping to peacefully convince her that she’s making the wrong choice. In his opinion for the court, Chief Justice John G. Roberts Jr. affirmed the value of these personal conversations: “If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners’ message.”
He later adds:
In his quest to bring all his colleagues on board, Chief Justice Roberts wrote an opinion that implausibly described the Massachusetts statute as neutral as between anti-abortion speech and abortion rights speech — a neutrality that four conservative justices rightly dismissed as illusory, revealing a court sharply divided beneath its veneer of unanimity.
Justice Antonin Scalia, the most forceful of the conservatives, correctly criticized this sleight-of-hand in his concurrence with Chief Justice Roberts, arguing convincingly, as did Justice Samuel A. Alito Jr., that the law at issue was anything but neutral toward the content of the speech at issue but represented a form of censorship. Justice Scalia and the justices joining him, Anthony M. Kennedy and Clarence Thomas, worried that a spurious unanimity by the court would encourage other jurisdictions to attempt, and get away with, similar sorts of discrimination favoring some kinds of speech over others.
This is not to say that other rights can never outweigh free speech. In 1992, the court upheld a buffer zone limiting political speech around a polling place. Thursday’s opinion sensibly distinguished between voting booths and abortion clinics, focusing on the difficulty of detecting low-visibility voter intimidation as compared with the “anything but subtle” harassment of women seeking abortions.
It focused as well on the deliberate exclusion of police officers near polling places in order to avoid the reality or appearance of official pressure on voters, an issue absent with abortion clinics, where the police are free to protect women from being pressured by others. The state has many alternative measures available to protect patient safety and autonomy, and the court’s decision rightly insists that the state must exhaust those alternatives before resorting to a blanket restriction of free speech.
Thursday’s opinion in no way restricts the right to choose whether or not to terminate a pregnancy guaranteed by Roe v. Wade, in 1973, and reaffirmed, in 1992, in Planned Parenthood v. Casey. Nor does recognizing a duty to protect freedom of speech in this setting ask us to deny the genuine anguish suffered even by women who are confronted by quiet protesters rather than noisy agitators on their way to use reproductive health services. But neither empathy for their anguish, nor the need to protect the safety of women seeking such services, nor the clear need to guard against the rising tide of state laws designed to restrict access to abortions, can justify far-reaching measures that restrict peaceful conversation in public spaces.