SCOTUS Debates Buffer Zones, Gun Rights With Women’s Lives on the Line


Violence against women and their bodies took center stage at the Supreme Court Wednesday, but you wouldn’t know it based on the questioning from the justices.

First up was McCullen v. Coakley and the “plump grandmas” challenge to a Massachusetts buffer zone law. Abortion rights supporters knew going into the arguments that this would be a tough sell to the Roberts Court, but just how tough was immediately apparent. Justices Anthony Kennedy, Antonin Scalia, and Clarence Thomas, the three dissenters in the Court’s last buffer zone decision, have obviously not changed their minds. Justice Kennedy attacked the idea that the law was content-neutral, insisting it was about silencing anti-choice speech, not preventing violence. Meanwhile Justice Scalia carried Operation Rescue’s water repeatedly insisting that what the anti-choice challengers want to do is just “talk to the people.” Justice Alito took that one step further, blanketing the actions in hushed tones. “What these people want to do,” Justice Alito said, “is speak quietly.”

Notable, though, was the silence of Chief Justice John Roberts. Roberts is no stranger to anti-choice activism. During his time with the Reagan administration, Roberts was involved in presidential messaging around abortion, including signing off on proposed answers to an interview Reagan did with Pat Robertson, where Reagan cited the “tragedy of abortion” as an example of American culture that would “displease God.” Roberts also helped approve a presidential telegram delivered to a memorial service being held for 16,500 fetuses. Those telegrams again referenced the “abortion tragedy,” and, even better, compared the Dred Scott decision sanctioning slavery to Roe v. Wade, waxing poetic that the toll at Gettysburg could be traced to Dred Scott like the 16,500 deaths could be traced to Roe. And as deputy solicitor general he argued in an amicus curiae brief in Bray v. Alexandria Women’s Health Clinic that the actions of Operation Rescue protesters and a half dozen other clinic blockaders did not discriminate against women because “the right to have an abortion is not a fact that is specific to one gender.” So maybe the chief justice was silent because he’s already pretty clear on how he feels about the buffer zone issue.

But Roberts is also an astute politician, and if his time doing anti-choice messaging for the Reagan administration taught him anything it was that appearances and rhetoric matter more than facts and reality. Which is why buffer zones may not be thrown out altogether, just narrowed to the point of being functionally useless. To get there—to the point where Chief Justice Roberts votes to uphold buffer zones in some limited fashion—he’s going to have to take the cover of Justice Elena Kagan, whose questioning seemed to be searching for some distinction for those buffer zones confined explicitly to stopping violence or actual physical obstruction.

And that was the common theme from Wednesday’s argument: how and where to draw the line between acceptable and unacceptable threats to women’s safety. The Court then turned its attention to the case of United States v. Castleman, a challenge to a federal law that prohibits those convicted of misdemeanor domestic violence crimes from owning a gun. At issue in United States v. Castleman is the Lautenberg Amendment, which prohibits someone who has been convicted of a “misdemeanor crime of domestic violence” from possessing a gun. The statute defines this as a misdemeanor under federal, state, or tribal law by someone who (as relevant here) has a child with the victim, and which “has as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.” The Lautenberg Amendment was passed in response to what attorneys for the Department of Justice called a “dangerous loophole” in gun laws that allowed domestic abusers to own firearms because domestic violence convictions were often misdemeanors.

Relying on a 2001 guilty plea to a misdemeanor “domestic assault” charge in Tennessee court, federal prosecutors charged James Castleman under the amendment. The state law Castleman plead guilty to prohibits an “assault” against someone with whom you have a child and defines assault as “intentionally, knowingly or recklessly” causing “bodily injury to another” or “intentionally or knowingly causing physical contact with another [when] a reasonable person would regard the contact as extremely offensive or provocative.” The statute defines “bodily injury” broadly, and it is the breadth of that definition at issue in the case.

Castleman challenged the law, arguing his conviction didn’t qualify because it didn’t include the use of physical force, which meant after the justices finished debating whether Operation Rescue operatives could “speak quietly” to patients as they enter abortion clinics, they turned their attention to whether or not domestic abuse requires a showing of physical injury or harm to justify taking away someone’s guns.

Predictably, Justice Scalia expressed his discomfort that domestic abusers were being singled out for firearm prohibition, questioning whether the statute was even necessary. Just as predictably, Justice Kennedy constructed a hypothetical that involved a domestic abuse conviction stemming from a freak accident, a camera, and a cliff that set up the Chief Justice to huff that there was simply no limit to the kind of conduct the statute seeks to ban.

And, as she had done early that morning, Justice Kagan appeared to be searching for a compromise, a line to draw, suggesting that perhaps the happy medium was to find that the ban applied to convictions based on conduct that caused actual, bodily injury but would exclude convictions based on “offensive touching” because that clearly “just goes too far.”

So that’s where we are, in 2014: debating just how much force can be applied to women and their bodies before an abuser loses their right to speak or sacrifices their right to own a gun. And what’s worse is that by starting the analysis here—by parsing the assaults in terms of the impact on the rights of the abusers—women’s rights never really stood a chance.

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  • Lynnsey

    I cannot understand why this is even a question. Your right to free speech does not include a right to harass and intimidate people entering a medical clinic. That they can’t “protest” without being in patients’ faces tells you all you need to know about these people. If I did the same outside a dentist, I’d be arrested in 10 minutes.

    I do especially like how they use McCullen as the face of the fight. “I’m just a harmless granny!” Blargh. Let’s just ignore the long history of violence and threats that makes these laws necessary because this old lady can act like she’s just trying to share God’s love through pamphlets and prayer.

    • L-dan

      The thing is, as written, currently you *could* go yell at people outside of your Dentist’s office. You probably would be arrested for being a nuisance, and might win if you sued back on 1st Amendment grounds.

      However, there aren’t a lot of people willing to be that sort of asshole just to prove a point.

      If all they did was shout their opinions? That would be shitty and horrible but no more illegal than the equally shitty practice of catcalling. In some places, you can nail a persistent harasser under some variety of anti-stalking laws, but otherwise, they can say shitty things to their heart’s content.

      But they block access on the sidewalk, and cry assault if they are bumped as people try to get by. They grab at clothing. They trip people on purpose. In theory, they can be arrested for assault or for blocking access. In practice, unless you have video, the police get ‘he said/she said’ and don’t want to be involved at best. At worst they’re sympathetic to the harrassers. Even with video, it means taking them to court.–requiring resources most clinics don’t have–because they can’t count on enforcement of these laws any other way.

      Given the actual violence to clinic staff in the past, I’d say there’s a definite safety concern. Still, given the current feel of the court, I’m going to say that getting a reduced buffer zone is likely the best case scenario here.

      • Lynnsey

        I understand what actually happens and why it rarely gets addressed by law enforcement. That’s what I meant by “do the same”…grabbing, spitting, shoving, blocking them physically, etc. If you were a big enough asshole to act like this anywhere else, few people would count themselves on your side, but more people seem conflicted about this situation. I can’t understand why we give these loons such leeway.

        Are there actually people who honestly believe that they’re just politely voicing their opinion?

        • L-dan

          Sadly, I suspect there are. Without video of what’s really going on, the arguments I see draw parallels to things like protesting in front of the New York Stock Exchange (allowed…provided you’re not being threatening). They say that standing with signs and shouting is protected free speech (true) and that grabbing and spitting is legal harassment that should be addressed by law enforcement (also true). They refuse, however, to draw the line from there to the question of why then is the latter not resulting in many arrests?

          I believe strongly in the first amendment. The buffer zones are a response to poor enforcement and protester bullying that can infringe on that amendment, while still being the best workaround so far for the realities on the ground. If the buffer zones are struck down, there needs to be some other workaround that allows people to remain safe going to a clinic.

          Seriously, this is the crowd that wants to rely on the argument that the right to life is a more absolute right than that to body autonomy, but then turn around to argue that first amendment rights trump public safety concerns. The cliche about shouting ‘Fire’ in a crowded theater is ample illustration that public safety can, and is, used to place limits on free speech. Likewise speech that incites to violence.

          • jruwaldt

            Given how conservative Christians seem to feel the greatest form of compassion is preventing others from sinning, I wouldn’t be surprised that they feel they’re doing the patients the utmost kindness by trying to keep them from getting abortions, no matter how vicious and nasty they get.

          • L-dan

            Which say something about the level of their delusions.

          • http://plumstchili.blogspot.com/ Plum Dumpling

            In that they contradict Jesus. Jesus’ God is not interested in sin. Jesus tells us to be perfect as God is perfect. What is God’s perfection?:

            Matthew 5:46

            For if ye love them that love you, what reward have ye? Do not even the publicans the same? And if ye salute your brethren only, what do ye more than others? Do not even the publicans so? Be ye therefore perfect, even as your Father who is in Heaven is perfect. For He maketh His sun to rise on the evil and on the good, and sendeth rain on the just and on the unjust.

  • http://www.friv2friv3friv4.com/ friv 2 friv 3 friv 4

    Which says something about the level of their delusions.

  • lady_black

    The right to “free speech” doesn’t come with a captive audience in the form of a woman trying to get into her doctor’s office. The court knows this.