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News :: Gender
Mass Abortion Clinic Protection Law Struck Down By US Supreme Court
27 Jun 2014
The Supreme Court ruled Thursday that a Massachusetts buffer zone law violates the First Amendment; the justices were unanimous in the ruling. In case you weren’t up to speed on the case, here are the basics: Fourteen years ago, the high court upheld a Colorado law that created an 8-foot “bubble zone” around patients entering or exiting clinics. But Massachusetts’ buffer zone law prohibited demonstrators from standing within 35 feet of the facility, a length the justices seemed dubious of from the start. Walking that length — the size of a school bus — takes approximately seven seconds.
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A lot can happen in those seven seconds. A lot can happen when protesters are allowed to enter clinics, physically confront patients or block doors. Massachusetts passed its law in response to aggressive and dangerous conduct from protesters stationed directly outside clinics, including an incident in 1994 where a gunman opened fire at two abortion clinics, killing two people and injuring five others. In its defense of the measure, the state argued before the justices that the buffer law is not a prohibition on speech, but a practical measure to keep access to these facilities “open and clear of all but essential foot traffic, in light of more than two decades of compromised facility access and public safety.”

Lawyers for lead plaintiff Eleanor McCullen argued that the law was an infringement on her First Amendment rights. “It’s America,” she said in an interview with NPR News. “I should be able to walk and talk gently, lovingly, anywhere with anybody.” (Clinic workers and patients may not agree about the gentle and loving nature of confrontations with protestors.)

The high court’s ruling was limited, and doesn’t necessarily mean that all restrictions on protestors outside of clinics violate the First Amendment. As Ian Millhiser from the Center for American Progress noted on Twitter, the ruling “means that some buffer zones can stay, even if this one can’t.” Salon spoke with doctors and clinic escorts about what these laws can do — and can’t do — to protect access to abortion services, their safety and the safety of their patients and colleagues.

I think that the harassment of patients is unacceptable. The antiabortion fanatics feel good by making other people feel bad. The patients who come to see me are carrying a tremendous emotional burden to start with, especially my patients who are coming there to end a desired pregnancy because of some fetal catastrophe or their own medical issues. For those women, they don’t want to be here and have an abortion; they want to have a baby. And they’re there in tremendous pain because of that. And so the antiabortion people come and harass these patients and their families, in spite of the fact that they are in tremendous pain and emotional anguish. It’s unsupportable, it’s indecent, it’s indefensible.

So the buffer zone ordinance that was passed in Boulder in 1986 was an attempt to help that. A problem with the buffer zone ordinance is that it requires an actuation, an activity by the patient. She has to object to this and she has to call the police, and she’s not always going to do that. And it does not require the antiabortion demonstrator to keep a certain long distance within a few feet. Well, that’s enough to cause tremendous anguish and pain for the patient.

I accept buffer zones as an important symbolic expression of community sentiment, which they are. Our law is totally supported by the people of Boulder. We all believe in free speech; nobody’s saying they can’t go to the city park and say what they want or stand across the street and picket. But really, I think the bubble zone should be the distance a rifle bullet can travel. Or even better, New Jersey. Make the Boulder buffer zone end somewhere in New Jersey.

I can’t use the front door of my office and I can’t drive out the front driveway with the protesters there. Because all of the doctors who have been assassinated have been assassinated by so-called protesters. All the other people have been killed in Boston and Alabama and so on have been killed by so-called peaceful protesters who “went over the edge.” This is the ultimate expression of what they’re saying. If they can’t use the coercive power of the state to get people to do what they want them to do, they will kill them! And the message from the antiabortion movement, which is the face of fascism in America, is, “Do what we tell you to do, or we will kill you.” So while I believe in its symbolic importance, the buffer zone ordinance is useless against that kind of mentality. These people do not accept basic premises of civilized society and the legal process.

Dr. Cheryl Chastine, a provider in Wichita, Kansas.

Buffer zones help providers feel that their safety is respected and protected. When I travel into my clinic, I know that I am mere feet from people who want to stop me by any means necessary. That’s very intimidating. We are lucky in that we have a gate and a private parking lot that patients can drive into; even still the patients are not able to get away.

They’re not able to prevent the protesters and picketers from approaching them and making personal contact with them. And so when patients come into my clinic, they’re very stressed about the fact that that contact was forced on them. I think that if they chose to make that contact, to seek those people out and talk to them, that would be one thing. But they come to the clinic knowing that they don’t want to speak to a picketer, and yet they have to go directly past them, and it makes them angry and upset and ashamed.

Katie Klabusich, a writer, media contributor and clinic escort in New York, New York.

Buffer zones don’t stop the harassment, they just make it easier to get people inside. And just because they haven’t been able to shut down the clinics in your community doesn’t mean that there isn’t a gauntlet that people have to to walk to get into their doctor’s office. No matter where you live, that should horrify all of us.

Even before I was standing between patients and people from [extreme antiabortion group] Abolish Human Abortion in New Jersey, I have always seen this as a nationwide fight. Particularly if they can overturn Roe v. Wade — and they have a plan to do this — this is national.

But at the smallest level, the right to be able to walk into a clinic must be protected. There is now a buffer zone in place at the clinic where I escort patients, but before that we had a patient flee in the street — with traffic coming — paralyzed with fear because they were all screaming at her. She started to cry in the middle of the street. You can hear the protesters in the waiting room, in the counseling room. You can hear them blocks away. It’s terrifying.

And I have been targeted for this work. These protesters take images of the people entering and exiting clinics. It is aggressive. They film patients. They film escorts. They are there to be intimidating. The woman who wrote the blog post sharing my photo and name said, “This is a war.” They are using violent rhetoric. They knew anti-choice outlets would pick it up and circulate this violent rhetoric. The idea behind these threats is about “the greater good.” By sharing my name and face and the names and faces of others in this movement online, the message is, “If something happened to those people, it would be OK.”

If this isn’t the intent, then why put our names? Our faces? Our cities? It’s an escalation. That’s the part that I feel. The visceral feeling is that it’s not OK that they target providers, but they have a history of doing that. They publish their addresses. In a sad way, we somehow almost expect that. Now they are targeting the media and activists, too. This should worry people. We should all be worried.

Katie McDonough is Salon's politics writer, focusing on gender, sexuality and reproductive justice. Follow her on Twitter @kmcdonovgh or email her at kmcdonough (at)
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Mass Abortion Clinic Protection Law Struck Down
27 Jun 2014
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Buffer zones around abortion clinics that restrict access to public sidewalks are an unconstitutional restriction on speech, the Supreme Court ruled unanimously Thursday. The zones were designed to keep protesters at bay.

The 2007 amendment to a Massachusetts law stated that protesters had to remain at least 35 feet from the entrances of any reproductive health care facility to prevent confrontations. The legislature increased the zone from an 18-foot buffer created in 2000 because protesters still blocked entrances and intimidated patients. The legislation stemmed from public safety concerns after John Salvi III killed two people during a shooting rampage at abortion clinics in the Boston suburbs in 1994, as well as violent demonstrations and protests outside entrances of clinics, the Boston Globe reported.

Eleanor McCullen, a grandmother who stands outside a Boston-area Planned Parenthood clinic twice a week, sued the commonwealth over the buffer, saying she and other opponents of abortion sought “not merely to express their opposition to abor­tion, but to inform women of various alternatives and to provide help in pursuing them,” court documents said.

The buffer zones “definitely impeded our message,” she said to the Globe. “If someone isn’t interested, that’s fine. But I’d like to be there to help.” Many clinic visitors are hesitant about the decision and are therefore receptive to her viewpoint, she added.

The nine high court justices agreed with McCullen, saying the law burdened free speech more than necessary to achieve Massachusetts’ desired effect.

“Petitioners are individuals who approach and talk to women outside such facilities, attempting to dissuade them from having abortions. The statute prevents petitioners from doing so near the facilities’ entrances,” the court wrote. “By its very terms, the Massachusetts Act regulates access to ‘public ways’ and ‘sidewalks.’ Such areas occupy a ‘special position in terms of First Amendment protection’ because of their historic role as sites for discussion and debate.”

Chief Justice John Roberts wrote the opinion for the court, which called the closing of sidewalks an “extreme step” that didn’t “seriously [address] the problem through alternatives that leave the forum open for its time-honored purposes.”

Reproductive rights advocates panned the ruling, who cited the National Abortion Federation (NAF), which closely tracks threats and violence against abortion providers across the country. The NAF has found that buffer zones have a measurable impact, decreasing criminal activity and increasing patients’ and staff members’ access to the facilities.

“Buffer zones make a huge difference,” Ashley Hartman, who holds a master’s in public health from Ohio State University and has volunteered as a clinic escort in the Cleveland area, said in an interview with ThinkProgress. “The reality is, if you’ve ever been outside a clinic, it’s not about exchanging ideas… Protesting is about creating the feeling of intimidation, so the more distance you can have from them, the less powerful that intimidation is.”

“The fact that we even have clinic escorts is a good signifier that we need things like buffer zones,” she pointed out. “We wouldn’t need escorts if walking into a clinic didn’t involve that type of harassment.”

Planned Parenthood, which offers health services like gynecological check-ups, testing for sexually transmitted diseases, access to birth control and emergency contraception, and assistance for women wishing to terminate pregnancies, as well as prenatal care for those who don’t plan to abort, also spoke out against the ruling.

“This decision shows a troubling level of disregard for American women, who should be able to make carefully considered, private medical decisions without running a gauntlet of harassing and threatening protesters,” Cecile Richards, president of Planned Parenthood Federation of America, said in a statement.

Massachusetts Attorney General Martha Coakley, who defended the law in front of the high court, vowed that the fight to protect women in front of abortion clinics was not over.

“With today’s decision, our work begins again. We are not going to give up our fight to make sure women have safe access to reproductive health care. We will utilize all of the tools we have available to protect everyone from harassment, threats, and physical obstruction,” Coakley said in a statement. “I will work with the Governor, Legislature and advocates to explore additional legislative tools that also meet the court’s requirements.”

Coakley also noted at an afternoon press conference that the justices did not strike down a provision of the law that prohibits the “intentional blocking” of abortion clinics. She said her office’s civil rights division was prepared to issue injunctions against “those who would threaten or harass.”

Massachusetts may be able to rework their legislation to create a moving “no-approach zone” as people approach an abortion clinic. In 2000, the Supreme Court upheld a Colorado law that created a 100-foot buffer zone outside all health-care facilities. Within that zone, the law bans people from approaching patients within eight feet without their consent. The Baystate previously had a floating buffer, but found that it was too difficult for police to enforce.

The Supreme Court noted in its ruling that difficulty enforcing moving buffers was not reason enough to do away with them. “A painted line on the sidewalk is easy to enforce, but the prime objective of the First Amendment is not efficiency,” the court said.

Justices Antonin Scalia and Samuel Alito, in their concurring opinions, also noted that the buffer zones discriminated against abortion opponents.

“Speech-free zones ... add nothing to safety and access; what they achieve, and they were obviously designed to achieve, is the suppression of speech opposing abortion,” Scalia wrote.

“It is clear on the face of the Massachusetts law that it discriminates based on viewpoint,” Alito wrote. “Speech in favor of the clinic and its work by employees and agents is permitted; speech criticizing the clinic and its work is a crime. This is blatant viewpoint discrimination.”
Abortion Clinic Protection
28 Jun 2014
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1 November 2013

As Legal Attacks Mount

Film Honors Heroic Abortion Providers

“We’ve been at war since Roe v. Wade was passed, except there’s only been one side that’s been fighting this war.” That defiant statement was made by Dr. LeRoy Carhart in the recently released documentary film After Tiller. A former lieutenant colonel in the Air Force, Dr. Carhart is one of only four doctors left in this country who openly provide late-term (third-trimester) abortions. After Tiller, by filmmakers Martha Shane and Lana Wilson, introduces us as well to Drs. Warren Hern, Susan Robinson and Shelley Sella. They all knew and worked with pre-eminent abortion provider Dr. George Tiller, who was assassinated in his church on a Sunday morning in 2009. The film portrays the doctors’ compassion for their patients and steely determination to stand up to the anti-abortion bigots who hound them and threaten their lives.

Most abortions take place in the first trimester when the procedure is relatively simple and can often be achieved with medication alone. Less than 1 percent of abortions in the U.S. take place in the third trimester, when the procedure is much more complicated. But this is not the reason why so few doctors are trained or willing to perform this procedure. Third-trimester abortion is prohibited in all but nine states, and late-term abortion providers have been vilified, terrorized and murdered. Dr. Tiller faced massive legal and extralegal harassment for over 35 years for the abortion services he provided women, including late in pregnancy.

Dr. Tiller was the eighth person killed in murderous attacks on abortion providers since the 1973 Roe v. Wade Supreme Court ruling struck down anti-abortion laws. After Tiller makes it abundantly evident that Tiller’s four colleagues, who have likewise faced years of harassment and threats, are well aware that they, too, could be picked off at any moment. Carhart and his wife recall the arson attack on their property that was carried out in the early 1990s, not long after Carhart had started performing abortions in Bellevue, Nebraska. His daughter was hounded out of her home, and for years Carhart fought anti-abortionists seeking the eviction of his general surgery practice.

The Roe v. Wade ruling represented a precious gain for women’s political and social rights, but from the beginning it was limited and partial. After Tiller underlines the fact that the 1973 Supreme Court ruling specifically granted states the right to outlaw abortions in the third trimester of pregnancy—“after viability,” in the words of the court. The majority decision written by Judge Harry Blackmun upheld the states’ right to interfere in the personal decisions of women, stating that some “argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree.”

To make crystal clear what the court meant, the ruling referenced the case Buck v. Bell. That 1927 decision endorsed the racist, anti-poor eugenics theories that states used to justify sterilization of men and women. Tens of thousands were sterilized across the country in the 20th century, often on the specious grounds of “imbecility.” California, which sterilized more people than any other state, has overturned its eugenics laws, like other states. Yet it has been exposed for having recently sterilized female prisoners.

The majority ruling in Roe v. Wade specified measures that could be taken by states to regulate abortions after the first trimester, among them:

“Requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.”

That list has become, in the hands of the anti-abortionists, a veritable “How To” Guide for restricting women’s right to abortion.

The legislative assault on abortion rights by Republican-controlled state governments in recent years has been even more effective in rolling back abortion rights than the bombings and assassinations carried out by anti-abortion terrorists in the 1990s. Over the past three years, abortion providers have been forced to shut down at the fastest rate since the time of Roe v. Wade. According to a survey by the Huffington Post, since 2010 at least 54 clinics have closed down or stopped providing abortion services. Today, fully 97 percent of rural counties in the country have no abortion services whatsoever.

In the face of this reactionary offensive, it is not difficult for Democrats to be viewed as defenders of abortion rights. Texas state senator Wendy Davis became a nationwide sensation by mounting a filibuster that delayed passage of an omnibus anti-abortion bill. The bill contains almost every one of the attacks on abortion rights that have been adopted by various states in recent years. It bans abortion after 20 weeks due to supposed “fetal pain”; requires abortion doctors to have hospital admitting privileges; prohibits doctors from phoning prescriptions to pharmacies, thus making women visit a clinic for medication doses in early-term abortions; requires clinics to upgrade their buildings to meet the standards for ambulatory care centers (i.e., they must make medically irrelevant but expensive changes that will put some clinics out of business). On October 28, a federal judge ruled the part of the Texas law concerning admitting privileges to be unconstitutional. Part of the anti-abortionist strategy is to get a test case before the Supreme Court in hopes of overturning the Roe ruling.

While opposing such laws like the one in Texas, the Democratic Party does not even pretend to fight for anything beyond preserving Roe v. Wade, which legalized abortion but did not make it generally available. Like all aspects of health care, access to abortion reflects the class divisions and racial discrimination that are inherent in U.S. capitalist society. Over two-thirds of the women who have abortions are poor, and black and Hispanic women are more than twice as likely as white women to experience unwanted pregnancies and to have abortions. What was and is needed is mass struggle to ensure that poor and working women have unrestricted access to abortion. For the rights to abortion and contraception to mean anything, the services must be free.

Bourgeois feminists have never intended to launch such a struggle because their framework is limited to seeking legal reforms through the agency of the Democrats. Despite their pro-choice rhetoric, Democrats have in fact helped restrict access to abortion for working and poor women. Soon after the Roe decision, it came under attack by Democratic president Jimmy Carter, who signed the Hyde Amendment eliminating abortion coverage under Medicaid, which all but deprived poor women of the service. The Hyde Amendment has been renewed every year since, regardless of which party sits in the White House.

We say the state has no right to interfere in the reproductive or sexual lives of women and call for free abortion on demand. The fight for abortion rights must be part of a broader struggle for free, quality health care for all. Decent health care is a burning need for all working people, with employers in recent years gutting the health plans that unionized workers had won in the struggles of earlier decades. But the fealty of the labor bureaucrats to the parties of capital, especially the Democrats, undermines this and every other necessary struggle.

Religious Bigots Target Women’s Rights

Directly after Tiller’s murder, a “fetal pain” law was crafted specifically to drive Dr. Carhart out of business and out of the state of Nebraska. Such laws are based on a cynical hoax. The idea that pain can be felt by a fetus at 20 weeks after gestation has been dismissed by every reputable medical association that has commented on the issue. The passage of that 2010 bill was a watershed victory for the anti-abortionists. Twelve more states have since passed similar legislation.

After Tiller shows the lead-up to the passage of the Nebraska bill and the travails of the Carharts as they tried to relocate afterward. They moved to Maryland, where the law allows late-term abortions under certain conditions, but the anti-abortionists there protested Dr. Carhart’s arrival. They even organized a picket of the middle school attended by the clinic landlord’s daughter.

A similar “fetal pain” measure is on a November municipal ballot in Albuquerque, New Mexico. That city has been specifically targeted in an attempt to close down the clinic where Dr. Robinson and Dr. Sella work, as seen in the film. The push for its passage has been accompanied by an increase in intimidation. On the weekend of August 10, “Survivors of the Abortion Holocaust” held a “training camp” in Albuquerque during which an abortion doctor’s house was besieged, trapping his family inside.

Another prong of the anti-abortionists’ pitchfork is the campaign for “fetal rights” laws. These have been adopted by some states as a means to persecute pregnant women for activities that are often harmless to the woman and the fetus, e.g., smoking marijuana. In recent years, hundreds of women across the country have been detained, arrested or forced to accept medical procedures in the name of “fetal protection.” The president of the anti-abortion outfit Operation Rescue has gloated: “We win every time we establish the precedent that the unborn child in the womb is a unique human individual.”

As Marxist materialists, we reject the idealist notion—ultimately derived from religion—that a fetus is a human with a “soul.” Since a fetus and the mother are biologically united during pregnancy, all attempts to endow the fetus with rights come at the expense of those of the mother.

The religious reaction and family-values bigotry that have come to dominate the general social climate in this country make it much harder, especially for teenagers, to avoid pregnancy and to obtain an abortion. Sex education is either woeful or a pack of lies. Parental notification rules for teen abortions are another hurdle. Teen access to contraception is often restricted. Two years ago, the Obama administration blocked easy access by young women under the age of 17 to the morning-after pill, subsequently reversing itself under pressure. The net result is that the U.S. teen pregnancy rate is one of the highest in the developed world, more than twice as high as that in Canada and five times that in Sweden.

After Tiller compellingly relates the stories of individual women who sought late-term abortions. Some had wanted to be pregnant until they learned of severe fetal abnormalities. Others could not find the time or money to make arrangements for abortions before the deadline in their states. One woman had to wait for her tax rebate. One teenager was terrified of telling her religious parents. An older woman had light periods and a negative pregnancy test and so did not know that she was pregnant. In the film, Dr. Robinson rejects the idea that a woman has to have a good story to justify her abortion. She notes that her only criterion is medical safety because women “are the world’s expert on their own lives.”

The Family: Key Institution of Women’s Oppression

The Roe ruling took place against the backdrop of broad social struggles in the U.S. From the civil rights movement to the anti-Vietnam war movement, wide sections of the population were demanding significant social and political changes. The capitalist rulers felt pressure to grant some reforms. The apex of the gains for women won in this period was the Roe ruling, which has been under legislative attack ever since.

In the 1980s, Ronald Reagan packed the Supreme Court with conservatives in order to reverse the gains of the social struggles of the 1960s and early ’70s. A 1992 court decision left Roe in place but granted extra rights to states to extend waiting periods for abortions and enforce parental consent for teenagers. In the words of the chief justice at the time, that ruling made Roe “a sort of judicial Potemkin Village.” These assaults have continued to this day under both Republican and Democratic administrations.

The deep-seated oppression of women is rooted in the institution of the family, which arose with the advent of private property as a mechanism for passing property from one generation to the next—the monogamous wife ensures the paternity of the heirs. A major role of the family is to instill respect for authority and act as a conservatizing force. Together with religion, the family serves to instill a morality that proscribes anything that deviates from the ideal of one man on top of one woman for life.

The war on abortion rights, a battering ram for general social and political reaction, has gone along with a broader offensive against democratic rights and workers gains. With its hands on the wheels of production, the working class objectively has the social power to mobilize the struggle needed to defend its own interests and those of all the oppressed, including women. But given the high level of religiosity in this country, anti-abortion prejudices strongly influence much of the working class. With the dearth of social struggle today and its impact on political consciousness, it is even more difficult to win workers to the understanding that abortion must be defended not only as a “women’s issue” but also an essential democratic right, the loss of which would redound against all working people.

We seek to forge a revolutionary party that will fight for all the oppressed layers in society and render the proletariat conscious of its role as gravedigger of the capitalist system. Such a party will be modeled on the Bolshevik Party of V.I. Lenin and Leon Trotsky, who led the October 1917 Revolution in Russia. Only through a victorious workers revolution can society be liberated from the profit system and private property and be reconstructed on socialist foundations. This will lay the basis for the full equality of women and the replacement of the family with socialized care of children and household duties. That is the meaning of our call: For women’s liberation through socialist revolution!
Re: Mass Abortion Clinic Protection Law Struck Down By US Supreme Court
30 Jun 2014
Modified: 07:51:28 AM
The US Supreme Court last Thursday unanimously struck down a Massachusetts law that barred anyone other than patients, medical staff, police and passers-by from coming within a 35-foot radius of entrances to abortion clinics.

The case, McCullen v. Coakley, was brought by various antiabortion activists who challenged the constitutionality of the law. The plaintiffs named Massachusetts Attorney General Martha Coakley in their suit and requested a court order preventing the state from enforcing the law in question.

In the United States, health facilities that provide access to abortion are frequently targeted by far-right religious activists. It is a settled practice among certain religious fundamentalist groups—encouraged by sections of the Republican Party and the political establishment—to set up shop outside abortion clinics to harass, degrade and intimidate patients as they attempt to use the facilities. It is a vile operation that not infrequently turns violent.

Many states enacted laws to protect abortion clinics and their patients following a wave of shootings and bombings throughout the 1990s, including the 1994 shooting of two clinic workers in Brookline, Massachusetts. Since 1993, four doctors who performed abortions have been shot and killed, the most recent being Dr. George Tiller of Wichita, Kansas in 2009.

Notwithstanding the reactionary and obscurantist character of the protests at abortion clinics, the Massachusetts law that is the subject of the McCullen case presents significant concerns from the standpoint of freedom of speech. While it ostensibly addresses harassment and intimidation at places where violent protest is not unusual, the blanket “buffer zone” aspect of the law essentially creates a legal “no free speech zone” outside of abortion clinics.

If such zones were upheld, it would set a precedent for the establishment of similar “no free speech zones” at other public venues. From the standpoint of a principled defense of democratic rights, measures such as Massachusetts’s “buffer zones” cannot be supported.

The Massachusetts legislature passed the original version of the law in 2000, amending it in 2007 to include the provision establishing the buffer zones around clinic entrances. In legislative hearings prior to the amendment’s approval, Attorney General Coakley and various law enforcement officials testified that policing the entrances to abortion clinics was unworkable and that the buffer zones were needed to protect women’s safe entry and exit from the clinics.

The 2007 amendment’s 35-foot buffer zone was unprecedented from a legal standpoint. Previous Supreme Court decisions on the subject had upheld some limitations on protests and leafleting near clinic entrances, but legislation had not been attempted that simply proscribed being within a certain distance of entrances.

For example, a Colorado law upheld by the Supreme Court in 2000 makes it a crime for someone leafleting—or “sidewalk counseling” as its practitioners euphemistically call it—to come within six feet of someone entering or exiting a clinic without their consent. This six-foot “bubble” component of the Colorado law applies within 100 feet of any hospital or health care facility in the state. New York state has a “bubble” rule similar to Colorado’s.

Chief Justice John Roberts delivered the majority opinion in the McCullen case, joined by the so-called “liberal” justices Stephen Breyer, Ruth Bader Ginsburg, Sonya Sotomayor and Elena Kagan. The majority opinion found that the Massachusetts law’s buffer zone infringed free speech, which is protected by the First Amendment (part of the Bill of Rights). The decision is available here .

According to the Supreme Court’s longstanding First Amendment jurisprudence, a government entity can set certain limitations on speech and expression, known as “time, place and manner restrictions.” For example, a city can enact an ordinance prohibiting the use of loudspeakers after a certain time in the evening. The Supreme Court has upheld time, place and manner restrictions where they are neutral as to the content and viewpoint of the speech or expression.

The Supreme Court in McCullen found that the buffer zone measure was content and viewpoint neutral—i.e., it prohibited prochoice and antiabortion speech alike within the buffer zones. However, the court found that the buffer zones were too restrictive as a means of protecting ingress and egress from clinics, and thus were unconstitutional. The opinion suggested that the aim of securing the clinic entrances might be attained by different means, including by prosecuting protesters as trespassers.

The arch-reactionary Antonin Scalia wrote a concurring opinion that was joined by justices Clarence Thomas and the supposedly “swing” justice, Anthony Kennedy. Justice Samuel Alito wrote a brief additional concurrence along the lines of Scalia’s.

Scalia’s concurring opinion is remarkable—even by Scalia’s standards—for its unhinged, raving style. Much more a sermon or diatribe than a legal opinion, Scalia went out of his way to paint the antiabortion movement as a righteous, persecuted tendency.

The majority opinion, according to Scalia, “carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents.” This is a bizarre statement, given the fact that the majority’s decision actually strikes down the Massachusetts buffer zone law.

“There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion,” Scalia writes, declaring that the majority opinion “continues the onward march of abortion-speech-only jurisprudence.”

The case was previously heard by a federal district court and the First Circuit Court of Appeals, both of which upheld the Massachusetts law. The First Circuit found that the buffer zones were justified given difficulties in enforcing any of the alternatives.

The majority opinion goes out of its way to placate and defer to religious obscurantism. Unlike the First Circuit’s opinion, the Supreme Court’s decision accepts as good coin the contention that the antiabortion protesters are engaged in “sidewalk counseling” of women seeking abortions.

The Supreme Court noted that the “success rate” of the activists (i.e., turning women away from the clinics) had fallen since the 2007 law went into effect, and that the buffer zones had thus “taken their toll.”

“Although [one protester] claims that she persuaded about 80 women not to terminate their pregnancies since the 2007 amendment, she also says that she reaches ‘far fewer people’ than she did before the amendment. [Another protester] reports an even more precipitous decline in her success rate…”

There is certainly a strong element of hypocrisy in the McCullen decision. In a period of a massive rollback of basic democratic rights, the Supreme Court upheld the democratic rights of antiabortion fanatics. Meanwhile, torture, mass surveillance, assassination, incommunicado detention, police brutality, infiltration, corporate criminality and blanket official secrecy persist unaddressed.

As an editorial in the Des Moines Register pointed out, the Supreme Court building itself sits in a plaza where it is illegal to “parade, stand or move in processions or assemblages… or to display in the building and grounds a flag, banner or device designed or adapted to bring into public notice a party, organization or movement.”
Protection Law Struck Down By US Supreme Court
30 Jun 2014
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The Supreme Court ruled on Monday that the government cannot require “closely held” corporations to provide contraception coverage to its employees under the Affordable Care Act.

In a divided 5-4 ruling that carves out a piece of President Obama’s healthcare law, the court reasoned that under the 1993 Religious Freedom Restoration Act (RFRA), for-profit companies that are primarily controlled by a single family or a few individuals do not have to provide birth control coverage.

According to the Internal Revenue Service, a closely held corporation is one “that has more than 50% of the value of its outstanding stock owned (directly or indirectly) by 5 or fewer individuals at any time during the last half of the tax year; and is not a personal service corporation.”

Written by Justice Samuel Alito, the majority opinion found that with the contraception mandate, the government was unable to prove the mandate was “the least restrictive means of furthering” its interest in providing women cost-free access and availability to birth control, something that is required under the RFRA.

As noted by SCOTUSblog, the high court decided this case simply on statutory grounds, and did not reach for the First Amendment claims invoked by Hobby Lobby.

Hobby Lobby was one of the 49 for-profit corporations that sued the Obama administration over its decision to mandate employers cover birth control under the preventative care services outlined by the ACA. Under the ruling, women working for companies that deny contraception coverage will have to find it elsewhere.

"Any suggestion that for-profit corporations are incapable of exercising religion because their purpose is simply to make money flies in the face of modern corporate law," Alito wrote, according to the Huffington Post, adding that in making companies cover contraception, "the [Health and Human Services] mandate demands that they engage in conduct that seriously violates their religious beliefs."

“There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, to all FDA-approved contraceptives,” he added.

Although the Supreme Court ruled against the administration in this instance, it also said the government itself could pay for contraception coverage in order to ensure women have access to it. This pushed SCOTUSblog to suggest, “it is extremely likely that the Obama administration will by regulation provide for the government to pay for the coverage. So it is unlikely that there will be a substantial gap in coverage.”

The court emphasized that its decision was written narrowly to apply only to the contraception mandate and only to closely held corporations. Therefore, it does not mean that companies who object to services like blood transfusions and vaccinations on religious grounds will be able to avoid providing such coverage to its employees.
Additionally, the court ruled that its decision would not leave room for companies to justify discriminatory practices under the guise of religious belief.

In a dissent written by Justice Ruth Bader Ginsburg and joined by Justice Sonia Sotomayor – Justices Elena Kagan and Stephen Breyer joined in part but also filed their own dissent – Ginsburg called the majority opinion “a decision of startling breadth.” She stated the ruling means, “commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”

According to the Wall Street Journal, Ginsburg argued that the RFRA was never meant to apply to for-profit corporations, and reasoned that the decision paved the way for future cases in which companies deny other types of coverage. She also criticized the majority’s suggestion of allowing the government to pay for birth control, asking, "Where is the stopping point to the 'let the government pay' solution?"

Justice Anthony Kennedy, meanwhile, also offered his thoughts on Ginsburg’s criticism in a concurring opinion to Alito’s. As reported by the Huffington Post, he noted the Obama administration had already offered some institutions – churches, religiously affiliated hospitals and non-profits – an exemption from the birth control mandate. Since that was the case, he argued that exempting another class of organizations would be feasible, and that the ruling “does not have the breadth and sweep ascribed to it by the respectful and powerful dissent."
Female justices issue searing dissent over new contraceptive case
04 Jul 2014
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The fierce disagreements dividing the Supreme Court over this week’s Hobby Lobby decision were laid bare Thursday in a searing dissent from Justice Sonia Sotomayor, who said the justices’ decision in a separate contraceptive case “undermines confidence in this institution.” The dissent was signed by all three female justices.

“Those who are bound by our decisions usually believe they can take us at our word,” wrote Sotomayor. “Not so today.”

The dissent was in an order to grant an emergency request from Wheaton College, an evangelical college in Illinois, on a temporary basis until its appeal goes forward. At issue is the “accommodation” the Obama administration worked out for religiously-identified non-profits: Sign a form certifying your objection, and the insurer will provide the coverage directly, without the objecting organization having to pay. As of now, 122 non-profits have sued, claiming that signing the opt-out form for someone to get contraception violates their religious liberty. (An attorney for the plaintiffs has repeatedly referred to it as a “permission slip for abortion,” even though it does not actually cover abortion.)

In fact, that accommodation was one of the reasons Justice Samuel Alito cited to justify his Hobby Lobby decision – words Sotomayor threw back at him in the dissent. Under the Religious Freedom Restoration Act, the government has to show it has pursued the least restrictive means to accomplish its goal. Alito claimed that because the nonprofit accommodation exists, that means the government has other ways to get women access to contraception that respects religious liberty. Yet only a few days later, he ruled that the nonprofit accommodation – again, signing a form – is also a violation of religious liberty.

“Let me be absolutely clear: I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs,” Sotomayor wrote. “But thinking one’s religious beliefs are substantially burdened … does not make it so.” She added, “Not every sincerely felt ‘burden’ is a ‘substantial’ one, and it is for courts, not litigants, to identify which are.”

What the plaintiffs in the nonprofit cases are seeking is to be treated like churches – no contraception for anyone. But the majority claims that “nothing in this interim order affects the ability of the applicant’s employees and students to obtain, without cost, the full range of FDA approved contraceptives,” because the government already knows about their objection from the lawsuit and can tell the insurer itself. But without the form, Sotomayor argues, how could the administration “ever identify the organizations eligible for the accommodation and perform the administrative tasks necessary to make the accommodation work?”

She added, “The Court’s actions in this case create unnecessary costs and layers of bureaucracy, and they ignore a simple truth: The Government must be allowed to handle the basic tasks of public administration in a manner that comports with common sense.”

Sotomayor also pointed out that the facts of the case hardly met the Court’s high standard for such an emergency injunction. The dissent was co-signed by Justice Ruth Bader Ginsburg and Justice Elena Kagan, but not Justice Stephen Breyer, who also dissented with them in Hobby Lobby.
Re: Mass Abortion Clinic Protection Law Struck Down By US Supreme Court
07 Jul 2014
What’s Next? A Ruling that Workers’ Insurance Doesn’t Have to Cover Blood Transfusions?

Hobby Lobby and the Future of Health Care


The vote by the US Supreme Court’s five reactionary Catholic male members in the Hobby Lobby case, declaring that companies substantially owned by people who on religious grounds believe that contraception is a sin can not be compelled to offer coverage for it in any health plan provided to their employees raises a few important questions.

The biggest one of course, is: Why if this is a decision based upon the Constitution’s separation of church and state, would it stop at contraception?

How about a company owned by Jehovah’s Witness believers? They believe that the bible, by banning the ingestion of blood, makes any blood transfusions, or even for many believers, the storing of blood for later use, a sin. Should such employers be allowed to offer insurance plans to their worker that don’t cover blood transfusions, or perhaps that even deny coverage for operations that require blood transfusions — for example dialysis, heart surgery, treatment for leukemia and bone cancer, or just emergency surgery following some injury that involves major blood loss?

Or what about a company owned by a Christian Scientist, who opposes any and all medical intervention. Should such a company be able to offer a plan that only covers palliative care by a hospice nurse, or visits by a religious “healer”?

We have, of course, entered that Alice-in-Wonderland world here of “faith-based conservatism.” Any kind of nonsense could be justified in such a world, and with the five right-wing Catholics now ensconced on the court supporting such a mad world view, we should be ready for it. Justice Sonia Sotomayor, the sixth Catholic on the nine-member court (the other three are Jews, in an astonishing turn of events that has filled the court entirely with representatives of two faiths that historically were barred from the court or that were allowed just token representation), will have her hands full trying to make the theological argument against the troglodyte and anti-woman sentiments of her five catholic colleagues.

Meanwhile, there is another problem with the Hobby Lobby ruling. Hobby Lobby, like most of those companies that still offer insurance plans to their workers, does not actually pay for the full cost of the policies. In fact, in many workplaces, workers pay the bulk of the premiums for their insurance. All the company does is arrange for the group coverage. Furthermore, if the company does pay a share of the cost for its workers, it is allowed to deduct those costs from its income, and is thus being subsidized by the nation’s taxpayers. To say that those employers are “paying” for the insurance is simply a fraud and a lie.

One could go further, actually, and note that health insurance is not offered by employers to workers because employers are being benevolent and are concerned about their workers’ health. Rather, they offer health benefits as one part of the compensation package, just like any contribution they offer to a worker’s 401(k) plan or, if they are in that tiny minority that still offer them, pension. The worker took the job because in addition to the wage offered, there was a health plan. In other words, the health plan is part of the worker’s pay package.

Many employers, in fact, make a point of annually showing their workers, in dollars, what their “total compensation package” is worth, adding in things like health benefits and employer 401(k) contributions, to make sure they know how much loyalty they should feel towards the boss. These parts of the compensation workers earn for providing their labor — including the employer’s share of the insurance premium — are just as much the employees’ money as is the employer’s share of the FICA tax credited each paycheck to each worker’s Social Security account.

We have two major problems here, both illustrated by the perverse Hobby Lobby decision. One is that, quite the opposite of their stated explanation of separating church and state, a cabal of five male Catholics — all ideologically-driven members of the Federalist Society — are pushing their reactionary religious agenda on the country. The other is that, thanks to the legacy of the wage controls during World War II, which led employers to offer health benefits as a way of attracting and retaining scarce workers, the US, alone in the modern industrialized world, relies on employers to be the main providers of heatlhcare to its citizens — a feudalistic arrangement that keeps workers chained to their job, afraid to organize, and if organized, afraid to strike.

Maybe, as I think more about this, the answer would be to replace these Catholic justices with Christian Scientists. At least if they turned out, against the tradition of that rather live-and-let-live religion, to be as aggressive in forcing their own theology on the rest of us as is the radical cabal of Roberts, Thomas, Alito, Scalia and Kennedy, they would simply rule that no employers should be have to provide health insurance to workers, and we could finally move on to a national health care system like Canada’s or Britain’s.