Eleanor McCullen’s Day at the Court

In the middle of January, when the fall classes have ended at Amherst, I take a contingent of students down to Washington for a morning of oral arguments at the Supreme Court, followed by a meeting with one of the Justices. This year Justice Alito was kind enough to carve out the time for my students, and he is indeed a luminous teacher.

What the students heard that day was the appeal for the sainted Eleanor McCullen. She has worked for years, standing outside of abortion clinics, drawing young women into a conversation, and gently persuading them to let their babies live. But she was blocked now by a statute in Massachusetts that forbade anyone from “knowingly” entering an area “within a radius of 35 feet” of a “reproductive health care facility” – which is to say, a facility designed to block reproduction.

In other words, an abortion clinic, and the statute was aimed clearly, conspicuously – and solely – at people like Eleanor McCullen, trying to make an appeal at the last moment to avert an abortion. And those appeals have been remarkably successful. Eleanor McCullen, in her seventies, has been credited with saving hundreds of children in this way.  

The case for McCullen was argued ably that morning by Mark Rienzi of the law school of the Catholic University of America, and it looks as though he will win this case. Apart from the clarity of his own argument, he is aided by the fact that the Court has changed in composition since it upheld a comparable statute from Colorado mandating a zone of eight feet away from abortion clinics.

         Eleanor McCullen

That was Hill v. Colorado in 2000. As it happened, I was in the courtroom that day to hear Justice Scalia read his forceful dissent. And thinking back to that case, those words I heard him speak that morning applied quite as precisely to the case now before the Court.

What was engaged there, as Scalia saw it, was an appeal offered gently in conversation, and this kind of conversation could not be done, he observed,  “at a distance and at a high-decibel level”:

The availability of a powerful amplification system will be of little help to the woman who hopes to forge, in the last moments before another of her sex is to have an abortion, a bond of concern and intimacy that might enable her to persuade the woman to change her mind and heart. The counselor may wish to walk alongside and to say, sympathetically and as softly as the circumstances allow, something like: “My dear, I know what you are going through. Ive been through it myself. Youre not alone and you do not have to do this. There are other alternatives. Will you let me help you? May I show you a picture of what your child looks like at this stage of her human development?” The Court would have us believe that this can be done effectively – yea, perhaps even more effectively – by  shouting through a bullhorn at a distance of eight feet.
It made the most profound difference, then, when Ms. Jennifer Miller rose to defend the law in Massachusetts now in McCullen v. Coakley and say that “petitioners can and do protest abortion in Massachusetts. . .in the public spaces right outside abortion facilities.”  Justice Scalia sprang instantly: “This is not a protest case,” he insisted.  “These people dont want to protest abortion. They want to talk to the women who are about to get abortions and talk them out of it. [I]t distorts it to say that what they want to do is protest abortion.”

   Justice Scalia

Justice Alito pointed out that employees of the clinic were free to talk to people entering the clinic and assure them that the clinic was quite safe.  And yet, another person was not free to say to the same woman that what was going on in that clinic was not at all safe, for her or her child. The judges would readily recognize that state of affairs as a ban on certain kinds of speech solely because of their “content” or their moral “viewpoint.”

Justice Breyer argued, nevertheless, that a statute grossly barring activity within thirty-five feet might well be warranted by the concern that the clash of demonstrators often led to disruptions outside the clinic. But Justice Kennedy asked, with an edge of disbelief, whether the state really could not frame a statute that barred disruptions without barring the kind of civil speech that has a claim to constitutional protection.

Fourteen years earlier, in Hill v Colorado, Justice Stevens upheld the ban on pro-lifers by invoking a constitutional “right to be left alone.” But that was a right invoked in the past to ward off intrusions into the private home, as through wire taps. And yet for years the Court had protected the right of political and religious hawkers to press their views on strangers in the street, who found the overtures unwelcome and offensive. But here, as elsewhere, there would a zone cut out, removing the pro-lifers from the constitutional protections afforded to everyone else.

The statute in Massachusetts will probably be struck down, but the question is: will the Court simply quibble over the difference between thirty-five feet and eight feet, or will it strike closer to the core of the problem by overruling that precedent in Hill v. Colorado?

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.