Encouraging Oral Arguments in McCullen v Coakley Sidewalk Counseling Case

Eleanor McCullen

Eleanor McCullen outside the bubble zone at Planned Parenthood in Boston

Yesterday, the United States Supreme Court heard oral arguments in the case of McCullen v. Coakley, the Massachusetts “bubble zone” case. In 2007, the state enacted a law prohibiting speech within 35 feet of the entrance to an abortion facility, making sidewalk counseling at these facilities far more difficult.

Sidewalk counselor Eleanor McCullen, a 77-year old grandmother who has saved hundreds of babies with her peaceful outreach to women entering Massachusetts abortion clinics, challenged the law, saying it unfairly restricts her freedom of speech.

Justices Challenge Assistant A.G. Miller

The transcript [PDF] from yesterday’s hearing suggests that the Court is inclined to agree with her. Justices Kennedy, Scalia and Alito, in particular, challenged Massachusetts assistant attorney general Jennifer Miller on her claim that the law does not discriminate based on one’s viewpoint.

Here’s Justice Alito, addressing Miller:

Now, let me give you this — this example. A woman is approaching the door of a clinic, and she enters the zone. Two other women approach her. One is an employee of the facility, the other is not. The first who is an employee of the facility says, good morning. This is a safe facility. The other one who’s not an employee says, good morning, this is not a safe facility.

Now, under this statute, the first one has not committed a crime; the second one has committed a crime. And the only difference between the two is that they’ve expressed a different viewpoint. One says it’s safe; one says it’s not safe. Now, how can a statute like that be considered viewpoint-neutral?

Miller tried to claim that it’s not the speech that’s relevant, but only the “conduct”—that is, the fact that the employee is escorting the woman into the abortion facility makes her conduct legal. Alito responded, “What she’s doing is what she’s saying.”

Justice Scalia Insists the Case is about Counseling

I was particularly encouraged by Justice Scalia’s insistence that this case is not about protest—as Miller repeatedly suggested—but about peaceful conversation. Moments into Miller’s statements he interrupted her:

This is not a protest case. These people don’t want to protest abortion. They want to talk to the women who are about to get abortions and try to talk them out of it. I — I think it — it distorts it to say that what they want to do is protest abortion.

If it was a protest, keeping them back 35 feet might not be so bad. They can scream and yell and hold up signs from 35 feet. But what they can’t do is try to talk the woman out of the abortion. It’s a counseling case, not a — not a protest case.

It’s heartening to know there’s a justice on the Supreme Court who understands sidewalk counseling. Too few even within the pro-life movement itself really understand this ministry.

In response to Justice Scalia, Miller tried to claim it’s a “congestion” case. But the justices didn’t seem to be buying it, peppering her with questions about what other remedies the state could have tried, short of the 35-foot buffer. Even Justice Elena Kagan, an Obama appointee, mentioned the statute has “problems” for her.

Massachusetts Bubble Zone Likely to Pop

The consensus among court watchers is that the court will strike down the Massachusetts law.

Less clear is whether they will go so far as to overturn their 2000 ruling in Hill v. Colorado , which upheld a less restrictive “bubble zone,” which has become the model for most such zones across the country, including the one the League has to deal with in Chicago.

Please pray that the court will rule justly, striking down the Massachusetts law and all the restrictive zones across the country that make it harder to help women and save babies from abortion.

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