Sav­ing the Con­sti­tu­tion in Mas­sachusetts

The Washington Times Weekly - - Editorials -

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.

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