Pro-life Sidewalk Counselors Challenge Massachusetts Buffer Zone Statute


Walter M. Weber

September 27, 2013

4 min read

Free Speech



The free speech rights of pro-life sidewalk counselors are back before the U.S. Supreme Court this Term, and the ACLJ has weighed in with an amicus brief supporting the pro-lifers in McCullen v. Coakley.

Abortion businesses typically desire an unfettered ability to abort babies free of any government oversight, and so such businesses often challenge laws and regulations limiting abortions. But laws that protect mothers and their babies are not the only targets for abortionists’ wrath. Private individuals, who stand outside abortion facilities and speak to abortion-bound women on their way inside – so-called “sidewalk counselors” -- can be effective in convincing those women to consider alternatives to abortion. But every woman who chooses life for her baby cuts into the profits of the abortion businesses. After all, you don’t need to pay an abortionist to keep your baby, and abortion facilities rarely handle obstetrics and delivery. Thus, every woman who turns away from abortion represents lost income for abortion providers.

It may be no surprise, then, that as long as there have been sidewalk counselors, there have been pro-abortion efforts to shut those pro-lifers down. Abortionists have turned to courts to get injunctions, have lodged accusations with police in efforts to harass pro-lifers, and have lobbied friendly legislators to adopt laws restricting pro-life speech outside abortion mills.

The Massachusetts legislature has been especially willing to appease abortion businesses. That state enacted a law creating speech-free bubbles around women going in for abortion. And when that wasn’t good enough for the abortionists, the legislature enacted a new buffer zone law making it a crime to stand within 35 feet of an abortion facility “during a facility’s business hours” (with exceptions for abortion clients and staff, naturally, as well as passersby).

Elderly grandmothers Eleanor McCullen and Jean Zarrella and their companions, who peacefully offer information and assistance to women considering abortion, challenged the Massachusetts statute as a violation of their First Amendment right to free speech. When the federal district court and court of appeals rebuffed their challenge, McCullen et al. petitioned the Supreme Court to hear their case. This past June the High Court agreed to review the matter.

The last time the Supreme Court heard a case about the free speech rights of sidewalk counselors was in Hill v. Colorado, a case the ACLJ handled. In the Court’s decision in Hill in2000, a 6-3 majority upheld an anti-speech bubble zone law that essentially made it a crime to approach another person with intent to communicate.

Stop and absorb that for a second: the Colorado law made it a crime to approach someone with intent to offer a leaflet, display a sign, or communicate a message regarded as “protest, education, or counseling.” The law made free speech itself a crime. Such a law blatantly violated the First Amendment, as the three dissenting Justices vigorously pointed out. Moreover, the Hill decision contradicted several important and well-settled First Amendment principles, such as the presumption that the audience for a message is open to speech unless and until they indicate otherwise. (For example, petition proponents can come to your door unless you post a “No Soliciting” sign.)

Hill was a terrible decision, and constitutional scholars – regardless of their position on abortion – have recognized it as such. Sadly, the Hilldecision has given rise to anti-speech rulings in the lower courts as well. One such case was the McCullen v. Coakley, the Massachusetts case the Supreme Court has now agreed to hear.

At the ACLJ, we decided that the Supreme Court should be reminded how anomalous and destructive the Hill decision was. Our friend of the court brief explains, point-by-point, how Hill created internal contradictions in the law by adopting rules diametrically opposed to long-standing First Amendment precedent. (The ACLJ amicus brief, filed Sept. 13, 2013, is available here.) The hope is that, faced with the choice of repudiating Hill or drastically restructuring First Amendment law, the Court will choose to disavow Hill. In which case, it won’t be a day too soon!

The Court is likely to hear oral argument in the case early in 2014 and to issue a decision by the end of next June.