Scott Gurvey

It was the end of the term, 2014, when the headlines blared, “Supreme Court Strikes Down Abortion Clinic ‘Buffer Zone’ Law. At issue was a Massachusetts law requiring a 35-foot zone around clinics that provided abortion services. Both supporters and opponents of abortion rights were not allowed within that buffer zone, where some were harassing women going in and coming out while others tried to shield and protect them.

The law experts at SCOTUSblog wrote at the time:

“The upshot of today’s ruling is that an abortion clinic buffer zone is presumptively unconstitutional. Instead, a state has to more narrowly target clinic obstructions. For example, the police can tell protesters to move aside to let a woman through to the clinic. But it cannot prohibit protesters from being on the sidewalks in the first instance.”

The court’s opinion in McCullen v. Coakley was unanimous. Yep, conservatives and liberal justices alike finding that the First Amendment prohibition of restraints on freedom of speech allows those speakers to get in the faces of women heading for an appointment with their doctor to consult and to receive completely legal medical care.

Chief Justice John Roberts wrote the main opinion, saying that public sidewalks have special speech protections as places for discussion and debate. Laws restricting access to that space, Roberts wrote, restrict access to a public forum.

That was then. This is now. Whatever side of the McClullen debate you come down on, I ask you to flash forward to 2022, today, eight years later. The great free speech loving Supreme Court of the United States is erecting an eight-foot-high fence around its steps and plaza, a public sidewalk which citizens have been using as a public forum for discussion and debate since the building was new in 1935.

What has caused the self-proclaimed protectors of free speech to keep the public away, way, way away? Fear, pure and simple. Fear of being disturbed by the free speech of the public. The fence has gone up in the wake of the leak of a first draft opinion on abortion which indicates the Court is about to strike down Roe v. Wade and take away a women’s right to chose.

People who support the fifty-year-old decision granting women that right are outraged. Those who have been fighting the Roe precedent for the same fifty years are thrilled. Roughly 80% of Americans believe abortion should be allowed, at least in some circumstances. The first draft would allow states to set the rules, and more then half intend to strictly limit or ban the procedure.

Which brings us back to the free speech loving Supreme Court. What we now know is that the Court is fine with free speech, and with people peaceably assembling “to petition the Government for redress of grievances.” See your First Amendment. As long as that Government does not include them.

These black robed hypocrites have no problem with protestors harassing patients and staff at a Planned Parenthood clinic. They do have a problem with protestors making noise outside their offices and, you-know-who forbid, keeping them from concentrating while in their office or even getting in their face as they are chauffeured to and from the Supreme Court building. That, say the top judges of the land, demands a fence.

The leader of the Catholic Court goes further. Justice Clarence Thomas, who sits on January 6, 2021 cases while his lobbyist wife Gini actively advocates insurrection against the government, told judges and lawyers at the 11th Circuit Judicial Conference that the judiciary is threatened if people are unwilling to “live with outcomes we don’t agree with” and that recent events at the Supreme Court might be “one symptom of that.” But the hypocrite Thomas figures he doesn’t have to live with” anything. Thomas has been pushing to overturn Roe for decades.

Americans don’t have to live with an out of step Supreme Court pushing them around either. Fence or no fence, voting is still the best remedy. But protest isn’t a bad second choice. If the protestors are loud enough, they will be heard. Good.