Quickies

Quickies: Abortion clinic buffer zones struck down, boys’ emotional toolboxes, and lightning strikes

Amanda

Amanda is a science grad student in Boston whose favorite pastimes are having friendly debates and running amok.

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  1. I knew that they would strike down the buffer zone I am however surprised it was unanimous. I don’t understand how it is a matter of free speech. Do people really have a right to march about yelling with signs anywhere they like?

    Good luck to Ashanti Branch he is making a real difference with very little support I’d imagine. I hope he manages to bring Ever Forward Club to more high schools as well.

    1. “Do people really have a right to march about yelling with signs anywhere they like?”

      From p. 22 of the decision: “Respondents also emphasize that the Act does not prevent petitioners from engaging in various forms of “protest”—such as chanting slogans and displaying signs—outside the buffer zones. That misses the point. Petitioners are not protestors. They seek not merely to express their opposition to abortion, but to inform women of various alternatives and to provide help in pursuing them. Petitioners believe that they can accomplish this objective only through personal, caring, consensual conversations. And for good reason: It is easier to ignore a strained voice or a waving hand than a direct greeting or an outstretched arm. While the record indicates that petitioners have been able to have a number of quiet conversations outside the buffer zones, respondents have not refuted petitioners’ testimony that the conversations have been far less frequent and far less successful since the buffer zones were instituted. It is thus no answer to say that petitioners can still be “seen and heard” by women within the buffer zones. If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners’ message.”

      Also, on p. 23: “The Commonwealth’s interests include ensuring public safety outside abortion clinics,preventing harassment and intimidation of patients and clinic staff, and combating deliberate obstruction of clinic entrances. The Act itself contains a separate provision,subsection (e)—unchallenged by petitioners—that prohibits much of this conduct.”

    2. I’m not surprised, but keep in mind this doesn’t strike down ALL buffer zones, just those infringing upon public areas. Buffer zones are still legal in general.

      Where this is a problem is in clinics that abut public sidewalks with no alternatives. We need to come up with an alternative solution for those.

  2. So does this then give Scientologists the right to stand outside mental health clinics to “counsel” patients going in of the various options and provide them help in pursuing non-psychiatric solutions to their problems? Can we skeptics block the entrances to chiropractic offices in an attempt to shut them down? Does this allow us to block access to Brzezinski’s clinic and make sure that people going in hear our views about the health care they have chosen, however desperate and uninformed their choice may be?

  3. I meant to say what constitutes harassment in the eyes of the law because from my own vantage point even them standing there holding up signs is very intimidating even for a 6ft 300 pound man.

  4. As a clinic escort, here’s a couple of things that clearly show the Supreme Court, regardless of political leanings, is ensconced in a bubble…their definition of ‘petitioner’ and ‘protester’ is laughable since most of them come from the same place and will change up those duties, sometimes multiple times in a given protest. Petitioners should be getting consent before getting personal, doncha think? And the fact that they state that it’s not a big deal because if they do not follow a patient, the so-called “counselors” aren’t harassing a patient…except, if, I don’t know, there’s a gauntlet of like 20 of them in a row all parroting the same thing. Add to that the insult of citing New York state law as a remedy for something other than a buffer…the state I escort in and found NO such remedy in the police or judiciary at our clinic.

    And no, Paul, currently the 8ft buffer in Englewood, NJ stands until challenged, and there’s a better chance of that staying up because 8ft. =/= 35ft. after all. The solution is to have more escorts and to continue to tailor buffer zones despite the Court’s restrictions, because antichoicers will not heed loitering, anti-harassment or abuse laws, since only hippie kids calling out financiers get the full-measure of that prosecution…or anyone trying to protest within 100 feet of the Supreme Court entrance.

    1. “And no, Paul, currently the 8ft buffer in Englewood, NJ stands until challenged, and there’s a better chance of that staying up because 8ft. =/= 35ft. after all.”

      I’m pretty sure that actually agrees with my statement rather than not, unless you’re differing on a more narrow point. Do you mean the one in Englewood is also infringing upon public property?

    2. It’s a public sidewalk yes. And the antis cannot stand within 8 ft of the structure, which leaves them some space on the sidewalk. And I would say they were the ones infringing with their behavior.

      1. Well, scribe, here’s the thing, it’s a bit like the Stokeley Neo-Nazi marches or the Westboro Baptist Church funeral protests – just because speech is odious and emotionally disruptive doesn’t necessarily mean it should be prohibited.

        The problem is that protesters are infringing the law (and our rights) in ways unrelated to free speech – for instance, by physically barring people’s paths, by touching them without their permission, by forcing pamphlets onto them, etc.

        Nothing, however, protects us from hearing unpleasant things. That is not an infringement.

        What we’re looking at here is: does persistent infringement of basic rights justify the creation of a large buffer zone that more generally infringes the right of free speech?
        We generally accept in this country that the right of free speech as a pure concept supersedes concerns about its abuse with some very rare exceptions (fire in a crowded theater, etc.)

        The ultimate question here, is whether or not the law meets the test created by the Supreme Court which states that “government may regulate the time, place, and manner of speech, as long as the regulation is neutral as to the content of the expression, is narrowly crafted so that it does not regulate too much speech, and leaves open alternate means of communication.”

        From a constitutional perspective, those are the only important questions.

        Now, the First Circuit in Massachusetts ruled that it did meet all the criteria of the test. They stated that the law did not create viewpoint discrimination (ie, there weren’t pro-choice people being allowed free reign to counter-protest in the protected area, which would violate neutrality), that the law was narrowly crafted (pointed at a specific kind of speech, pro/anti-abortion, leaves open freedom of movement, etc.), and that it left open alternative means of communication (such as loudspeakers, flyers, signs, etc.)

        Do you agree that the law meets those requirements? If so, you agree with the First Circuit.
        Looking at the law in detail, I see it covers such things as people entering/leaving the building, or people walking to destinations other than the building. Seems pretty fine so far. I’m inclined to agree with the First Circuit Court, but let’s continue on…

        Let’s review the opinions given by SCOTUS, then.
        Majority Opinion (authored by Chief Roberts and concurred by Ginsburg, Breyer, Sotomayor, and Kagan): They make a distinguishment between “petitioners” and “protesters” which is a bit odd, I’ll admit.

        I agree in general with their general point that public streets have been and should be a place where it’s acceptable to confront others with uncomfortable speech, but let’s keep reading on. They use this to inform the notion that the government’s ability to restrict speech in these areas should be “very limited”, which is a logical application of the prior statement. They point out that even in such public fora, the government may restrict speech so long as they are neutral to its content (the first criteria mentioned above). The petitioners argue that it is not neutral, but the majority of the SCOTUS court disagrees (and for good reason, you’d have to read it); they also agree that anyone being allowed to protest/counter-protest at these sites creates a problem which the state may rule to act against. So it passes part 1 of the test.

        They don’t really believe part 2 is in doubt at all, so they give that a pass as well.

        (As an aside, I like how they keep taking moments to snipe at Justice Scalia’s opinion. I don’t think I’ll enjoy reading his.)

        Here we go. So in the next section, they believe that the fact that the two primary modes of peaceful communication (handing out literature and initiating a close conversation) is sufficient reason to believe that their modes of communication have been unnecessarily restricted, and disagree with the First Circuit:
        “The Court of Appeals and respondents are wrong to downplay these burdens on petitioners’ speech. As the Court of Appeals saw it, the Constitution does not accord “special protection” to close conversations or “handbilling.” 571 F. 3d, at 180 . But while the First Amendment does not guarantee a speaker the right to any particular form of expression, some forms-such as normal conversation and leafletting on a public sidewalk-have historically been more closely associated with the transmission of ideas than others.”

        “(“Leafletting and commenting on matters of public concern are classic forms of speech that lie at the heart of the First Amendment “). When the government makes it more difficult to engage in these modes of communication, it imposes an especially significant First Amendment burden. 5”

        And here is where I take substantial umbrage with their opinion:
        “Respondents also emphasize that the Act does not prevent petitioners from engaging in various forms of “protest”-such as chanting slogans and displaying signs-outside the buffer zones. Brief for Respondents 50-54. That misses the point. Petitioners are not protestors. They seek not merely to express their opposition to abortion, but to inform women of various alternatives and to provide help in pursuing them. Petitioners believe that they can accomplish this objective only through personal, caring, consensual conversations. And for good reason: It is easier to ignore a strained voice or a waving hand than a direct greeting or an outstretched arm.”
        I see a big (legal) problem with deciding that one group of protesters are “petitioners” and the other group are “protesters”.

        So in their mind, this fails part 3, the alternative communication test, which I do disagree with on the grounds that “petitioners” are another form of “protester” and their division is arbitrary.

        ~

        Of course, this DOES mean that laws specifically targeting so-called “protesters” are still legal, by the court’s own admission.
        Sure, okay, we can’t stop “petitioners” like McCullen from approaching, speaking, and handing out leaflets, but if someone is shouting, waving signs, barring way, or otherwise being excessive and impeding, then we can still have the buffer zones for that.

        1. TL;DR on my post:
          They make a distinction between two types of protestors
          1) Protesters who speak gently and hand out material cannot be barred from nearing a clinic
          2) Protesters who shout, wave signs, impede progress, or otherwise make a large nuisance CAN be buffered against.

          1. Solutions?
            A) Narrowly craft laws meant to keep out the second type of protester
            B) Have escorts ready to help avoid the first type
            C) As this is content neutral, pro-choice people like us are allowed to quietly counter-protest in the same way as the first people, say by engaging said anti-choice protesters.

          2. Additionally, from ThinkProgress:
            “The opinion in the case acknowledges that states have a legitimate interest in passing laws to preserve access to reproductive health facilities. They’ll just have to figure out how to do it with different policies that “burden substantially less speech.” The justices write that Massachusetts hadn’t tried out enough alternatives before enacting a 35-foot zone, and could have proposed narrower solutions like passing local traffic ordinances to prevent the obstruction of clinic driveways.”

            It’s a bit of a pain, yes, but this decision was very narrowly ruled and provides a lot of freedom in crafting laws against these protests. Don’t give up hope yet.

          3. Protesters who speak gently and hand out material cannot be barred from nearing a clinic
            I presume the Court is also fine with unicorns near the clinic, because I just don’t see those “quiet consensual conversations.” I had to pass a clinic on my regular way to work: I wasn’t going in, just passing by, and I’m also a big male, and they made me afraid to pass by on the sidewalk. Got a LOT better once they expanded the buffer zones.

            That gets to another aspect of the ruling, related to the Supreme Court having a much more stringent buffer. They’re really big on “being on the sidewalk means you’re volunteering to be stopped and have opinions shoved in your face,” but I don’t think they’d support the right to jump in front of somebody’s car while waving a sign and screaming. People who don’t drive for transportation have less right not to be harassed. One set of rules for me, another for you.

          4. I’m not arguing there aren’t flaws with their approach, but it will remain the law of the land for the time being. It does, however, leave room open for interpretation and alternative means of creating protective laws.

        2. Thanks for the summary, Paul. I feel like I have a much better understanding of the Court’s reasoning for what initially seemed like a flagrantly terrible decision. I still don’t like it, and their characterization of “petitioners” engaging in “personal, caring, consensual conversations” is hilariously naive, but at least I understand the legal basis of it. Hopefully there’s still enough room for municipalities to enact other laws protecting access to clinics. It worries me, though, that keeping harassers away from women seeking medical care is going to become more a problem of policing.

          1. It’s worth noting that, even though we feel that this is an important law, it’s clear that they’re looking beyond this case to other things. The Supreme Court always has to think ahead to future problems that are seemingly unrelated to the case at hand – and while I don’t necessarily think some of the Judges are sufficiently competent to do that (COUGH COUGH ALITO THOMAS COUGH) I do understand why this was a unanimous decision and am not really bothered by it, since it’s a short-term setback.

            One of the big problems we have is the lack of enforcement by local authorities, definitely.

          2. Enforcement, as I have been telling people repeatedly lately, is useless, unless you create inordinately outsized penalties for definitions that have to remain vague in order to combat the problem. Here’s why the solutions you propose don’t work, btw:

            A) Narrowly craft laws meant to keep out the second type of protester
            Unfortunately, these protesters AREN’T distinct. For one thing, many of them come as part of the same group/church. Secondly, they often switch up these duties during the time they protest. Finally, even quietly handing out literature, one protester after another in a long line, and badgering a patient, however quietly, repeatedly, is still harassment. I recently did a segment on HuffPost Live with another clinic escort who explained this quite succinctly: http://www.huffingtonpost.com/2014/07/02/male-escorts-abortion-clinics_n_5552281.html?utm_hp_ref=tw

            B) Have escorts ready to help avoid the first type
            This is repugnant to suggest that people such as myself are required to volunteer our time in order for patients to access healthcare safely. Yes, even with a buffer zone, a few would be needed, but not nearly to the extent that our current needs require.

            C) As this is content neutral, pro-choice people like us are allowed to quietly counter-protest in the same way as the first people, say by engaging said anti-choice protesters.
            Funny, it hasn’t happened, but these issues have been going on for quite some time. Just as well, what we do not need in non-buffer zone locales is more people “engaging” each other in a massive, nearly indistinct mob to patients. There is a critical mass in how many escorts we can even provide before the chaos of the setting is just as offputting as giving the antichoicers free reign. Considering that such chaos is what these zones are designed to deflect, and such chaos is what the protesters desire, it’s no wonder that the Supreme Court itself as well as the Pentagon and other government buildings have such zones or designated protest areas…for themselves.

            35 feet is small enough to hear unpleasant speech. If that stills seems too much, 8-feet is the zone in Englewood, NJ because of layout and being cognizant of allowing antichoicers the right to be heard by, but not near, patients. However, these will ALL be challenged thanks to SCOTUS, creating an expense for already overburdened clinics and municipalities. As for the Stokely Neo-Nazi march or the Westboro Baptist Church, just like the Catholic protesters who show up at my clinic, they actually apply for permits and coordinate with law enforcement, and they do not REMAIN ensconced in front of the venue every single day. This is a poor comparison.

  5. I know this sounds insane, but a less than one in a million chance of getting struck by lightning this year makes me really relatively unafraid of lightning. I feel more afraid of falling down stairs, or breaking an arm during a fight, or getting hit by a car, or being an asshole to the wrong people.

  6. Clinic escorts and security need to photograph and record the behavior of ‘protesters.’ Such that attempts by right-wing law-enforcement to avoid enforcement are countered.

    AND: When the churches organizing these festivals of hatred are identified, freezepeach should demand that THEIR sidewalks be blocked, their congregations harassed, lurid images of the dead victims of illegal abortions paraded across their entrances, accusations of perversion and sexual crimes be hurled at their clergymen etc. etc. etc.

    1. Do you really don’t think we do that? I’ll give a good example why this is not necessarily a great solution…how many times do people think instant replay calls by officials in sports are wrong?

    2. Furthermore, I don’t think it’s ethical to retaliate with their methodology. It only escalates things, which is something they desire, and only adds to their persecution complex anyway.

  7. It seems like several people are saying this, so I want to put it here and not as a response to any one person:

    The word “petitioners” in the SCOTUS opinion is not used to define a category of protester. It’s used to refer to the group who brought the suit to the Court. McCullen et. al. are the petitioners because they petitioned the court for redress of their grievance. The AG et. al. are the respondents.

    Don’t make any hay out of this group being called “petitioners.” In the very next opinion given, the SCOTUS referred to the NLRB as a petitioner. In the prior one, ABC et. al. are petitioners.

  8. A couple of additional notes about abortion clinics. The clinic I volunteer at serves a larger number of lower income patients of color. Adding constant calls to ‘law enforcement’ to the mix, especially with its history in New York City, is not necessarily a good thing. Especially when we talk about requiring police officers to de facto adjudicate what constitutes ‘harassment’ on a direct, individual level. They aren’t trained to make that call, and the courts aren’t sufficient to take up the burden of processing an influx of what would be considered a minor offense anyway. Besides, an individual cited for harassment would likely get help from his org or church in fighting/paying for it and would shortly be free to continue to do it again…since there IS this religious zealotry about the whole mess.

    These suggestions and responses people make in order to protect “free speech” tend to be in the abstract, much like the harassers that continually excoriate Skepchick itself for preventing them from inflicting their speech upon the bloggers here. I urge you to attend a few problem clinics as a volunteer or an observer and see how specific behavior constitutes specific regulation. I’m am very well aware of the knife’s edge of protecting First Amendment rights, but these patients have rights too…and it’s not just avoiding ‘unpleasant speech’. That’s like saying a veiled threat from the mob is merely tense conversation. (See: Clinic bombings, George Tiller).

    1. Interesting points, scribe999. For what it’s worth, when I said upthread “It worries me [that this will] become more a problem of policing,” I meant that quite literally. It is very worrisome that in the absence of targeted regulations designed to prevent the harassment of people seeking health services at clinics that provide abortions, the only legal recourse for dealing with harassers is via police responses to actual in-progress harassment, which has all the problems you said. My comment, at least, was not intended to be a “call to ‘law enforcement’,” but a recognition that this ruling will almost certainly lead to increased police involvement due to the elimination of boundaries preventing a situation from escalating to the point of requiring police involvement. Which is really a bad thing for everyone, patients, practitioners, harasser-protesters, and police.

      Also, thanks for your service as a volunteer.

      1. Oh yeah, I suppose my response on the policing issue is sort of a general one to those who keep stating that such a thing is desirable. And thanks for spelling out the problem with increased police presence so clearly.

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