It's Not Just Speech Anymore

In an old and tired cliche- repeated here at your home of old and tired cliches- we hear "you can't yell fire in a crowded theater."

Tell that to Emily Bazelon, Slate senior editor and Truman Capote fellow at Yale Law School... and also to the Supreme Court. The latter, having heard McCullen v. Coakley, is expected to overturn a Massachusetts law which requires abortion protestors to remain outside the "buffer zone" of 35 feet from a clinic's front entrance.mandates 35-foot buffer zones around abortion clinics.

Bazelon explains

The purpose of the 35-foot buffer zone is to keep clinic entrances “open and clear of all but essential foot traffic, in light of more than two decades of compromised facility access and public safety,” Massachusetts Attorney General Martha Coakley argued in her brief defending the law. The state and the abortion providers say they still need the 35-foot buffer zone for the safety of patients. Otherwise the strip of sidewalk outside a clinic turns into a kind of “1-yard line,” with one group pushing its way through the crowd to get in the end zone, and the other trying to prevent them from doing so. Massachusetts has a history of violent demonstrations to back up its lawmakers’ 2007 decision to create the buffer zone, including multiple shootings at two abortion facilities in 1994.

She argues, however

The problem with the state’s argument is that peaceful demonstrators like Eleanor McCullen are not rushing linebackers. They’re using their voices, not their bodies. Maybe the state could draft a narrower statute that only applied to more belligerent protesters, but it’s not clear how that would work, since we already have laws that protect patients and clinic staff from physical harassment and intimidation, and make it a crime to obstruct entry. No abortion protesters in Massachusetts have been prosecuted under those laws, according to the argument Wednesday.

Except that sometimes they are using their bodies.  In an amici curiae brief filed to describe life before buffer zones at a Boston abortion clinic, Planned Parenthood wrote (p. 13)

Protesters attempted to force literature into the hands of unwilling recipients. Other protesters at the Boston Facility wore Boston Police Department hats and shirts and stationed themselves, carrying clipboards, at the garage entrance. They demanded contact information from people trying to get into the building. These protesters persisted in this intimidating and deceptive conduct despite several arrests. When it rained, “umbrella wars” erupted, with protesters using umbrellas to “knock [volunteer patient] escorts out of the way.” Protesters spit at escorts while they were assisting patients to the Facility entrance. The area in front of the pedestrian entrance of the Boston Facility was still a free-for-all...

For Jackson, Mississippi clinic (photo, below) escort/defender Lori Gregory-Garrott as for others, it's not about being called "baby killer' or "murderer" or "the devil" or even of photographs taken of clinic employees and patients.  It's about physical intimidation and, similar to crying fire in that metaphorical theatre, the safety and security of individuals.  In July, Gregory-Garrott wrote on her blog, The Last Abortion Clinic

In the beginning of the day I’m a parking attendant. We have precious few spaces at the clinic and they all must be used exactly correctly or the antis will call in a report to the Health Department stating the clinic is breaking standards. So, I usher cars into spaces as tightly as I can—despite the fact that the women driving them are usually not in their best mental state. When the parking at the clinic gets full, we have no choice but to lead them to another public lot down the hill from the clinic. When this happens, usually one or two escorts run down the hill and walk the patient into the clinic. I affectionately call this “Running the Gauntlet,” because once we step off clinic property, we are fair game. The antis chase us to the woman’s car and try to get in between her and us. They will stand outside the car so she cannot open her door. And we cannot do a thing. We are taught to “not engage.” And we keep this rule regularly. But there are days when “not engaging” isn’t something I can do.

Bazelon, a noted pro-choice advocate and critic of so-called "pregnancy crisis centers," sees a free speech issue. But as Amanda Marcotte notes and the photo from Brendan Smialowski below demonstrates, 35 feet isn't really far away. As a liberal/progressive (one very familiar with abortion controversies), Bazelon- graduate of a Quaker high school in Philadelphia- may believe all pro-life protestors play nice, not unlike the pro-choice crowd.  But it just isn't so.They are convinced (notwithstanding the evidence) that abortion is murder- and murder is condemned, most famously, in the best-seller of all best-sellers, which they believe justifies almost any tactic.

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