The pithy, catch-phrase “abortion distortion” is frequently used to describe how rules of law, logic, and common sense go by the wayside whenever abortion is involved. The phenomenon is easily detected.

  • What invasive, medical procedure – besides an abortion – can a minor obtain without parental consent or knowledge?
  • What surgical center – besides an abortion clinic – can avoid regulatory standards for surgical centers?
  • What medical facility – besides an abortion clinic – can regularly present physicians who not have hospital admitting privileges?
  • What provider of medical services – besides an abortion provider – can prevent patients from discovering important information about the risks of the services?

Last week, in McCullen v. Oakley, the Supreme Court ruled on another form of abortion distortion, dealing with the propriety of 35-foot buffer zones placed around all of the abortion clinics in the state of Massachusetts. Is there any other context in which a 35-foot buffer zone, banning free expression on public sidewalks and ways, could possibly survive? Around a church? Around the Pentagon? Around the White House?

Nope, no way.

Except for the inclusion of abortion, this bright idea of setting up a 35-foot “no speech” zone in a public area where people are generally free to walk and talk never gets off the ground, much less does it become an issue suitable for Supreme Court consideration.

Thankfully, and appropriately, all nine justices agreed that such law is unconstitutional, striking down the buffer zone. But even in this obligatory ruling, the abortion distortion factor weighed in the analysis.

In an opinion authored by Chief Justice Roberts, the Supreme Court held the law to be too broad in scope. Though the State, in passing the law, specified concerns about congestion, obstruction of access to abortion clinics, and safety around the clinics, the Court rightly noted that the 35-foot buffer went far beyond any legitimate worries and burdened substantially more speech than necessary.

But, as a preface to this ruling, the Court curiously found the buffer zone law to be content-neutral. Given that the buffer zone was created by the State to specifically address activity outside of abortion clinics, the law can hardly be called neutral. The law deals directly and singularly with the topic of abortion, and in exempting abortion employees and pro-choice “escorts” from the ramifications of the law, the buffer zone only affected the pro-life viewpoint.

This part of the decision is not only troubling, but superfluous, since the Court held the law unconstitutional on other grounds. The Court seemingly goes out of its way to pay homage to the pro-abortion community, letting them and everyone else know that free speech jurisprudence doesn’t apply to abortion after all.

This oddity in the holding did not escape the ire of Justice Antonin Scalia, who, in an opinion concurring in judgment only, and joined by two other justices, slammed the decision for indicating “there is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.”

In another concurring opinion, Justice Samuel Alito pointed out how the law should have been condemned as unconstitutional for employing “blatant viewpoint discrimination.”

The lead plaintiff in the case is Eleanor McCullen, a 77-year-old Christian woman who has prayed outside clinics and offered help to women for many years. Along with others, she stood firm and persevered through years of legal battles before this grossly unconstitutional law was finally struck down.

When the decision was announced, McCullen released a statement saying, “I am delighted and thankful to God that the court has protected my right to engage in kind, hopeful discussions with women who feel they have nowhere else to turn.”

Let’s hope and pray protection for this meaningful expression endures. As implied by the Court, Massachusetts only messed up in limiting too much pro-life speech, not in targeting this perspective for exclusion.

Although this decision represents a true victory for free speech in general and pro-life speech in particular, the McCullen decision is a sober reminder that we need to be continually vigilant about our constitutional rights, especially, when they interact with the abortion issue. While the 35-foot buffer zone is no more, abortion distortion remains.

What method of extinguishing life – besides an abortion – is celebrated as a fundamental right?


Post by Nate Kellum, CRE Chief Counsel