Yesterday, my colleague, Professor O’Brien, wrote a moving piece on the practical impact of the Supreme Court’s decision in McCullen v. Coakley, the buffer zone case.
The response is illuminating.
Her piece noted that we essentially have two types of health care for women: the privileged kind where some women can access services without denigration and the “‘shameful and silencing’ kind” for others. Well off people don’t have to be harassed, threatened and mocked by protestors for accessing care at clinics like those run by Planned Parenthood.
Harassment is what happens at clinics that provide the full gamut of health care services to women and “The point is Planned Parenthood provides all these services and the buffer zone law made it easier for women to access their full reproductive rights.”
Her critique of the Court’s ruling is that it “said okay to shame, yes to fear, and affirmative to making women’s reproductive health contingent upon these threats. And it said absolutely for women’s healthcare where protesters only greet women who receive healthcare at “those” clinics.”
I assume that the reality of what women have to endure is why Republican gubernatorial candidate Charlie Baker said, after the ruling, that he “hopes all interested parties will work together in quickly crafting new legislation that legally protects everyone’s rights.”
The Executive Director of the Massachusetts Federation of Young Republicans, Jeff Semon, took issue with the post. Writing in the comments section of our blog, he claimed:
This is just hyper partisan non-sense at its worst.
A 9-0 decision against and SCOTUS got it wrong??!!
NINE to ZERO.
Time for some self reflection Professor.
Buffer zones don’t prevent murder by the way.
A few responses to the response are in order.
First of all, it’s hard to imagine how Professor O’Brien’s post could be labelled hyper partisan. Charlie Baker’s campaign said before the decision that “Charlie hopes the current law is upheld.”
The Republican candidate for lieutenant governor, Karyn Polito, voted for the buffer zone law when she was in the Legislature. Baker’s 2010 LG nominee, Richard Tisei, co-sponsored the 2007 bill. That bill, signed into law by Governor Deval Patrick, expanded an existing buffer and bubble zone signed by Republican Governor Paul Cellucci.
In response to the ruling, former U.S. Senator Scott Brown, arguably the most well-known Republican in the region, issued a statement saying
“I supported the Massachusetts law that created buffer zones around abortion clinics. Despite the Supreme Court’s decision striking down that law, I do not regret my vote.
No matter how you feel about abortion, women should feel safe when they seek out and obtain medical services for themselves.”
Professor O’Brien’s analysis is, like all of our posts, worthy of debate. But it is simply demagogic to suggest hyper partisanship for a post criticizing the Court’s decision overturning a law that was supported by the GOP’s 2014 and 2010 ticket as well as the most prominent Republican in the area.
Second, a unanimous ruling by the Court should give us all pause before offering a critique. But the Court is not above reproach because its nine members agree.
Unanimity raises the threshold of our critique but shouldn’t be used to deny our ability to take the Court to task. Justice Robert Jackson’s observation about the Court is particularly apt: “We are not final because we are infallible, but we are infallible only because we are final.”
Further, unanimity is also not always what it seems. In the buffer zone case, the court split 5-4 on an important underlying issue, with a minority willing to strike down all laws restricting abortion protestors. The majority, including the Chief Justice, is willing to allow other legal remedies to prevent protestors from obstructing access to clinics. Garrett Epps, writing in the Atlantic, called it “skin-deep unanimity.”
And even if one agrees with the first amendment implications of this case, a unanimous court finding in favor of free speech can still inflict significant harm on the many women who must use the services provided by Planned Parenthood. They run a gauntlet of protestors, potential for violence, security, and disparagement in the process of accessing health care. Men, and many well off women, do not have to encounter this type of threatening environment for accessing care, reproductive or otherwise.
The Court noted that the buffer zones “compromise petitioners’ ability to initiate the close, personal conversations that they view as essential to ‘sidewalk counseling.'” Professor O’Brien’s piece helps pull back the layer of what this means to real women in real situations. And noting that a man walking into a clinic to have a vasectomy or a pharmacy to buy condoms or fill a prescription of Viagra does not have to endure the shaming of “sidewalk counselors” is another way of pointing out the disparity in access to health care as well as the real life implications of this ruling.
It’s exactly the point Joanna Weiss made in the Globe when she noted that “what’s missing from Thursday’s ruling: a sense of how these protests play out on the ground.”
Finally, Semon’s succinct response is exactly the kind of language that Republicans do not need as they attempt to reach out to women voters and create a more inclusive party. It acknowledges no practical implications for real women.
Consider also this part of his response: “Time for some self reflection Professor.” This after a piece of analysis detailing a personal experience accessing health care services at the very clinic at the center of the Court case. It was through her public analysis of her personal self-reflection that Professor O’Brien, a scholar of women, politics, and public policy, detailed the negative impact the Court’s ruling will have on vulnerable women seeking basic health care.
It’s a step above Mark Fisher’s response to the ruling. In an email to MassLive.com he makes some truly bizarre claims:
“The majority of women who have an abortion believe that they did have a choice,” Fisher wrote. “Rather, their boyfriend, husband, employer, parent or relative forced them to have an abortion. This ruling means that women will have a better chance to receive the information they need to make informed decisions.” Fisher said the ruling means women “will now be able to make more informed choices.”
See the theme?
“Time for some self reflection . . . ”
Women “will now be able to make more informed choices ”
The common denominator in both Semon’s pithy comment and Fisher’s more lengthy one is condescension.
No serious Republican nominee here could summon Semon’s tone or repeat Fisher’s twisted account of abortion and retain any hope of putting together a winning coalition this fall. This is exactly why Baker and Brown chose appropriately measured responses to what most reasonable people view as a complex constitutional thicket. For this unanimous first amendment “victory” has been achieved at the expense of women who might expect that, like men, they should be able to walk into a health care provider without being “counseled” against their will or made in any way to feel disparaged