by Debra Braun
Education Director

(July 2, 2014) – In a victory for sidewalk counselors across the country, the U.S. Supreme Court, in a 9-0 decision, has struck down an anti-sidewalk counseling law enacted in Massachusetts in 2007. In the McCullen v. Coakley decision, issued June 26, the justices declared that the law prohibiting most people from being within 35 feet of the entrances to abortion centers violates the First Amendment. “By its very terms, the (Massachusetts) Act restricts access to ‘public way[s]’ and ‘sidewalk[s],’ places that have traditionally been open for speech activities,” wrote Chief Justice John Roberts in the opinion. “The government’s ability to regulate speech in such locations is ‘very limited.’”

Significantly, for the first time the concept of sidewalk counseling has been recognized and positively described by the highest court in our land! Roberts wrote, “While the Act may allow petitioners to ‘protest’ outside the buffer zones, petitioners are not protestors; they seek not merely to express their opposition to abortion, but to engage in personal, caring, consensual conversations with women about various alternatives. . . .They attempt to engage women approaching the clinics in what they call ‘sidewalk counseling,’ which involves offering information about alternatives to abortion and help pursuing those options. . . . Such interactions, petitioners believe, are a much more effective means of dissuading women from having abortions than confrontational methods such as shouting or brandishing signs. . . . In unrefuted testimony, petitioners say they have collectively persuaded hundreds of women to forgo abortions. . . . They claim that the 35-foot buffer zones have displaced them from their previous positions outside the clinics, considerably hampering their counseling efforts.”

The opinion continues, “The buffer zones have also made it substantially more difficult for petitioners to distribute literature to arriving patients. . . . (T)he Act operates to deprive petitioners of their two primary methods of communicating with patients. . . . While the First Amendment does not guarantee a speaker the right to any particular form of expression, some forms—such as normal conversation and leafletting on a public sidewalk—have historically been more closely associated with the transmission of ideas than others. . . . While the record indicates that petitioners have been able to have a number of quiet conversations outside the buffer zones, respondents have not refuted petitioners’ testimony that the conversations have been far less frequent and far less successful since the buffer zones were instituted.”

Mark Rienzi, professor of constitutional law at Catholic University of America, and lead counsel for sidewalk counselor Eleanor McCullen and the other plaintiffs, said, “Americans have the freedom to talk to whomever they please on public sidewalks. . . . The Supreme Court has affirmed a critical freedom that has been an essential part of American life since the nation’s founding.” Of course, this is not primarily a victory for sidewalk counselors; this is ultimately a victory for the unborn children threatened by abortion and for their families. Many lives will be saved through sidewalk counseling because of this decision!

(The opinion was not perfect. While striking down the Massachusetts law for unduly burdening free speech rights, Chief Justice Roberts and the four liberal justices viewed the law as “content-neutral,” even though it allowed pro-abortion escorts to be in the zones where others were prohibited. Justices Scalia, Kennedy, Thomas and Alito strongly disagreed that it was “content-neutral.” Scalia would have also overruled a 2000 decision by the Court [Hill v. Colorado] that upheld a different type of zone which restricted pro-life speech. “Protecting people from speech they do not want to hear,” he wrote, “is not a function that the First Amendment allows the government to undertake in public streets and sidewalks.”)

Not surprisingly, Planned Parenthood condemned the McCullen decision and the National Abortion Federation (a trade association of abortionists) called it an “incredibly disappointing ruling.” We can assume that they will continue to look for ways to interfere with sidewalk counseling in an effort to protect their income from the loss incurred when an abortion client changes her mind. But the McCullen decision makes it clear that restrictive laws may be written only if other laws are not working—something that the state of Massachusetts failed to prove.

The Obama administration had argued in support of the restrictive Massachusetts law.

To read the McCullen v. Coakley decision, click here.

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