Buffer Zones and Comfort Zones

EDITORIAL on Supreme Court Hearing of McCullen v. Coakley

In his blueprint for the New Evangelization, Evangelii Gaudium (The Joy of the Gospel), Pope Francis offered a striking challenge for 21st-century Catholics: “I prefer a Church which is bruised, hurting and dirty because it has been out on the streets, rather than a Church which is unhealthy from being confined and from clinging to its own security.”

In 2000, Eleanor McCullen of Boston heard a very similar message from God while she was attending Mass, and she sought further advice from a priest. As Live Action News tells it, the priest said McCullen was being asked “to go out of her comfort zone to build up the Kingdom of God. He told her she’d have to stretch herself.”

Back then, she was 64, the age when many seniors start to prepare for their retirement. But McCullen ultimately decided to join a group of pro-lifers engaged in prayer and counseling at a local abortion business. On Tuesdays and Wednesdays, she took her post at the facility, scanning the sidewalk for abortion-minded women and their families, in order to ask how she could “help.” Before long, she was sharing ultrasound images of an unborn child in its mother’s womb and coordinating practical assistance for struggling women and young couples.

Fourteen years later, McCullen is the lead plaintiff in a closely watched case before the U.S. Supreme Court, McCullen v. Coakley. She has challenged a 2007 Massachusetts state law that requires a 35-foot “buffer zone” separating pro-life counselors from women walking to the entrance of state abortion businesses.

While the lead defendant, Massachusetts Attorney General Martha Coakley, backs the law as the safest way to protect women’s access to these facilities, McCullen argues that it unlawfully suppresses her free-speech rights. Though she has helped save the lives of more than 80 unborn children, she contends that the buffer zone has prevented her from reaching even more women.

The justices will scrutinize a lower-court decision that upheld the Massachusetts law. The high court will also consider whether a 2000 Supreme Court case, Hill v. Colorado, which upheld a more limited buffer-zone law in Colorado, applies to the Massachusetts law. Some experts predict that the justices could overturn Hill as well.

On Jan. 15, during oral arguments before the high court, justices on both sides of the ideological divide expressed concern about the law’s impact on constitutionally protected speech. And legal experts now predict that the three justices who dissented from the 2000 majority opinion on Hill — Anthony Kennedy, Antonin Scalia and Clarence Thomas — will be joined by Samuel Alito, though Chief Justice John Roberts Jr. did not reveal his views during oral arguments. A decision is expected by June.

In his 2000 dissent on Hill, Kennedy wrote that Colorado’s buffer-zone law “bars a private citizen from passing a message, in a peaceful manner and on a profound moral issue, to a fellow citizen on a public sidewalk.” And during an exchange in oral arguments addressing the Massachusetts law, Kennedy showed that he had not changed his mind about the constitutional problems posed by buffer zones. “In speech cases, when you address one problem, you have a duty to protect speech that’s lawful,” said Kennedy.

Mark Rienzi, an associate professor at The Catholic University of America School of Law and the lead attorney for McCullen, noted that abortion-facility personnel in Massachusetts could pass through the buffer zone, giving the appearance that the state endorsed the speech of facility staff and escorts, while creating impediments to the free expression of ideas by pro-life counselors.

In recent weeks, as the national media prepared for the oral arguments before the Supreme Court and thus gave attention to McCullen’s personal story, Americans have been introduced to what has been presented as the “new face” of pro-life activism: a 77-year-old woman who identifies herself as “5-feet-1-inch tall,” with a “body type [that] can be described as ‘plump.’” Along the way, Americans have also learned that she has shared her home with mothers in trouble and is a part-time prison chaplain.

Contrary to the stereotypes perpetrated by abortion-rights groups and their allies in the media and in Hollywood who say that pro-lifers only want to save babies but don’t care about women, McCullen represents the majority of activists in the field who offer emotional, spiritual and practical support for mothers.

Still, some abortion-rights supporters argue that it would be a mistake to allow McCullen’s disarming presence to justify efforts to overturn buffer zones. They point to a small number of violent and deadly attacks at abortion facilities and contend that the buffer zones are needed to protect women and their constitutional right to an abortion.

Pro-life leaders in this country have strongly repudiated the use of violence to protest legal abortion, including the murder of abortionists and their staff. In his statements before the court, Rienzi noted that the state had yet to prosecute one violation of the buffer-zone law, and he continued to insist that the real issue before the court wasn’t the prevention of violence, but a concerted attempt to violate the free-speech rights of those who seek to counsel and comfort women in desperate straits.

Justice Scalia, in an exchange during the oral arguments, emphasized that McCullen and other plaintiffs challenging the law were not angry protesters. “These people don’t want to protest abortion,” said Scalia. “They want to talk to women who are about to get abortions and try to talk them out of it.”

The court should overturn both the Massachusetts and the Colorado buffer-zone laws.

U.S. women already have free access to abortion. Now they deserve free access to life-changing words of truth and consolation from people like Eleanor McCullen.