Eleanor McCullen is a 77-year-old grandmother in Massachusetts who devotes much of her time to counsel mothers-to-be about alternatives to abortion. She distributes literature and offers advice, believing the effort is worth it if she can save the life of a child. She has never blocked access to a clinic nor has she been accused of improper behavior. She's simply exercising her First Amendment rights, which the state of Massachusetts considers a crime. The Supreme Court is considering whether she belongs in jail.
The state that was home to the original Tea Party and the Sons of Liberty now shackles the free speech it once championed. A law establishes an "anti-speech zone" around abortion clinics, making it against the law to "enter or remain on a public way or sidewalk" within 35 feet of an entrance, exit, or driveway of "a reproductive health care facility." The sole purpose of the law is to muzzle opponents of abortion, since the law exempts employees of abortion clinics, who are left free to say anything they want, wherever they want.
Mark L. Rienzi, the lawyer representing Mrs. McCullen, points out that the law has nothing to do with blocking access to clinics or harassment because the penalties apply whether abortion opponents come within 35 feet of an empty sidewalk near an abortion clinic at 3 o'clock in the morning, when the clinic is shut. This provision, Mr. Rienzi argues, "gives the state enormous power to interfere with the marketplace of ideas."
An employee of Planned Parenthood is allowed to step on the sidewalk and say, "Good morning, may I help you into the clinic?" but Mrs. McCullen will be arrested if she steps onto that sidewalk to say, "Good morning, may I offer you an alternative?" The language of the law is so vague that it even makes criminals of two friends walking near a clinic discussing abortion amongst themselves. This is clearly discrimination based on the content of speech.
Jennifer Grace Miller, on behalf of the Massachusetts attorney general, says such discrimination is OK. "Certainly, Ms. McCullen and others can have those conversations right in front of the abortion facility," she told the justices. "It's just that those conversations are moved back a few feet."
This isn't the first time the Supreme Court has taken on this issue. In 2000, the court sent shivers down the spine of First Amendment advocates with Hill v. Colorado, which upheld a free speech buffer zone in Colorado. Laurence Tribe, a professor of law at Harvard, said the case was "slam dunk simple," but the court got it "slam dunk wrong." The American Civil Liberties Union, strong proponents of abortion rights, says the case was not properly decided.
The Supreme Court decided to revisit the Hill decision when it took Mrs. McCullen's case for review, which gives the justices a chance to make things right. No government, state, federal or local, has the right to establish Constitution-free zones. Nor should any government advance a particular political agenda by imprisoning those who peacefully disagree. The trash can, it seems to us, is the proper place for this Massachusetts law.