Street Politics in the Supreme Court: McCullen v. Coakley
Although the U.S. Supreme Court declined, just yesterday, to hear a case testing the recent battery of restrictive, state-imposed abortion laws, tomorrow it will hear oral arguments for McCullen v. Coakley—a case that may have far-reaching implications for both abortion seekers and anti-abortion activists. The case hails from Massachusetts and the outcome from the court will either affirm or deny the constitutionality of an existing law that establishes a 35-foot buffer zone around abortion clinic entryways, a law which in practice prohibits anti-abortion activists from coming into close contact with clinic employees or patients.
Political Science professor and author, Josh Wilson notes in The Street Politics of Abortion, that much of the decades-long tug-of-war between the highly galvanized “Pro-Life” and “Pro-Choice” factions has played out on the stoops and sidewalks of health care clinics providing abortion services. McCullen v. Coakley is, in fact, the fourth in a series of Supreme Court cases to address clinic-front activism in the last decade. Wilson’s recent book outlines and analyzes the key precursors to this case including Planned Parenthood Shasta-Diablo Inc. v. Christine Williams, Schenck v. Pro-Choice Network of Western New York, and—most importantly—Hill v. Colorado, the case that established the legal precedent for Massachusetts’ 35-foot buffer zone which is expected to either stand as precedent or be restricted as a result of this Supreme Court decision.
What follows is a brief exposition to the McCullen case—an overview of the rise and evolution of the clinic-front protest, excerpted from Wilson’s first chapter of The Street Politics of Abortion. You can read the chapter in full here.
The anti-abortion movement has taken many forms in the four decades since [Roe v. Wade]. In the 1980s and 90s one of its identifying hallmarks was clinic-front activism. These protests took various forms, but collectively they served to publicize the cause, gain more members, give participants the feeling of empowerment via direct action, impede clinic access, and tax clinic resources. A less desirable outcome, from the anti-abortion perspective, was that this activism also spurred abortion-rights advocates to organize to directly counter these street-level tactics. While those fighting for abortion rights may have believed that they had reached their goal with the Roe decision, it quickly became clear that the Supreme Court case was just one step in a protracted and ongoing movement-counter-movement struggle.
As clinic-front anti-abortion protests grew in frequency, magnitude, and intensity, abortion providers and their supporters sought ways to respond. Their search yielded its own direct action strategies, but it also returned abortion-rights proponents to the state and, in particular, to the judiciary. At times, abortion-rights advocates attempted to use state-based means to win dramatic gains against their adversaries. The National Organization for Women (NOW) tried to use federal anti-racketeering (or RICO) laws, which were created to fight organized crime, to criminalize specific anti-abortion tactics and organizations. More commonly, abortion-rights activists sought to obtain court orders and legislation that governed how anti-abortion protests could occur—for example, establishing specific distances that needed to be maintained between activists and clinic doorways.
When clinics and abortion-rights groups succeeded in securing injunctions and other legal measures against their opponents, anti-abortion activists did not cower. Instead, they fought back with a legal strategy of their own. Anti-abortion activists around the country began challenging the restrictions by arguing that such measures violated their constitutional right to free speech. The combination of pervasive clinic-front activism, available legal resources, and crosscutting First Amendment questions touched off a wave of cases that disproportionately occupied the United States Supreme Court’s docket.
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Taken together, these conflicts illustrate the rise and fall of the most visible, participatory, and overtly contentious period of abortion politics in America. The eventual subsidence of the street politics of abortion in response to clinics’ and abortion-rights advocates’ legal victories, however, did not mark the end of the anti-abortion movement or abortion politics. Like flowing water that hits an obstruction, efforts in the conflict were merely diverted to a different course. Activists from both sides of the conflict have thus—often literally—moved from the streets to continue the fight in state legislative halls and courtrooms around the country. Williams, Schenck, and Hill trace and explain this path, unpacking reasons for the resilience of abortion politics while also showing how these events matter for the institutionalization of the New Christian Right more broadly.
Through these cases we see how abortion-rights activists have largely taken a defensive stance that reacts to, rather than initiates action against, their opponents. In the decades since Roe, the abortion-rights movement has yet to find a way to take the offensive, control the political discussion, or sustain popular involvement. They have come to be both behind and significantly subject to the anti-abortion movement’s actions. As a result, they show no signs of being able to slow, let alone end, the ongoing movement-countermovement conflict over abortion. Rather, they can only perpetuate it.
While one side of these cases is illustrative of a movement that faces difficulty in spite of its successes, the other side provides examples of a movement that is in many ways successful in spite of its failures. These cases demonstrate the resilience of anti-abortion activists and show a movement that is both entrepreneurial and developing in ways that have significant ramifications for the broader Religious Right’s place in American politics.
For more details on McCullen v. Coakley, see summaries of the case from the SCOTUS blog, Cosmopolitan magazine, The New York Times, and The Wall Street Journal. Also, stay tuned for more news from Josh Wilson, who is developing a Stanford Brief that will build on his previous research and speak directly to the McCullen v. Coakley case.
UPDATE: After hearing the oral arguments presented on Wednesday (January 15), many commentators predict that the Supreme Court will ultimately rule to overturn Hill v. Colorado and strike down the Massachusetts law imposing a buffer zone around clinic entrances. See Josh Wilson's op-ed in The Washington Post for more on what this signifies for anti-abortion activists and their opponents.
