Justice Anthony Kennedy is widely perceived as a swing vote on abortion, thanks to his decision to retain the “essential holding of Roe v. Wade” in the 1992 case Planned Parenthood v. Casey. But this perception of Kennedy is misplaced. Since becoming a justice, Kennedy voted to strike just one of the 21 abortion restrictions that have come before the Supreme Court, and that one restriction was in Casey itself. Thus, Kennedy has not voted to block a law limiting access to abortion for the last 21 years.
On Wednesday, the justices will hear a case brought by abortion protesters seeking greater access to women approaching abortion clinics — and if Justice Kennedy gets his way, those protesters may soon have unlimited ability to “counsel” or even harass patients approaching women’s health clinics.
McCullen v. Coakley concerns a Massachusetts law that creates a buffer zone around clinics that women can freely travel through without being confronted by protesters, leafleters or so-called “sidewalk counselors.” Under the Massachusetts law, entrances to abortion clinics are surrounded by a 35 foot buffer zone that no one may enter unless they have legitimate business within the clinic or are simply passing through the buffer zone in order to reach another destination.
McCullen hinges on two distinctions at the heart of First Amendment law. Laws that are “content-based” — that is, laws that single out speech about a particular topic for inferior treatment — and laws that engage in “viewpoint discrimination” — that is, laws that treat people who hold one set of views differently than people who hold opposing views — are both treated with great skepticism under the First Amendment. Thus, the First Amendment allows a state to prohibit someone from loudly protesting outside their neighbor’s bedroom while that neighbor is trying to sleep, so long as it bans all protests on any subject whatsoever. But a law that prohibits only protests about abortion — or only prohibits protests opposing abortion — while permitting protests on all other topics, is likely to be struck down.
The plaintiffs in McCullen try to characterize the Massachusetts law as one that engages in viewpoint discrimination because it permits clinic workers and their patients to enter and exit the buffer zones (and thus to enter and exit the clinic itself), without permitting abortion protesters to do so. It’s a neat trick. Essentially, the plaintiffs argue that clinic workers are themselves pro-choice, so allowing them inside the buffer zone without also allowing anti-abortion protesters is a form of viewpoint discrimination. Should the Supreme Court accept this argument, the only way for Massachusetts to enforce its buffer zone law would be for it to also forbid clinic workers from entering and exiting the clinic where they work. Clearly, this is not a workable way for a health clinic to operate.
It’s likely, however, that the Court will hand an even more expansive victory to abortion protesters. Dissenting in a 2000 case called Hill v. Colorado, Justice Kennedy suggested that any law that prevents protests around health clinics by its very nature engages in content discrimination, no matter how the law is written or how broadly it sweeps. “We would close our eyes to reality,” Kennedy claimed in Hill, “were we to deny that ‘oral protest, education, or counseling’ outside the entrances to medical facilities concern a narrow range of topics—indeed, one topic in particular. By confining the law’s application to the specific locations where the prohibited discourse occurs, the State has made a content-based determination.”
In essence, Kennedy argued that the only reason anyone ever protests outside of a health clinic is because they oppose abortion, so any restriction on protests outside of clinics should be treated as an impermissible content restriction. Should Kennedy’s view carry the day in McCullen, the result will be a constitutional right to protest outside of health clinics that does not exist at any other location or apply to protesters focused on any other topic.
In fairness, the plaintiffs in this case claim that they do not berate the women they target for so-called counseling — according to their brief, they “try to engage women who may be seeking abortions in close, kind, personal communication, with calm voices, caring demeanor, and eye contact.” That may very well be true, but if the Supreme Court gives them a constitutional right to engage in this kind of subtle protest, Massachusetts will hardly be able to permit this kind of activity while banning more aggressive protesters — permitting speech that is outwardly kind to women seeking abortions while banning speech that is overtly nasty to them would itself be a form of content-based regulation.
In other words, the likely outcome of a decision writing Justice Kennedy’s preferences into the law would be open season for everything from the kind of activity these plaintiffs say they engage in to angry men dressed up as grim reapers yelling at women approaching clinics.