If people are nice, sweet, and gentle in the course of their harassment, is it still harassment? If they make eye contact and smile and calmly say “Good morning” before they start intimidating women, is it still intimidation?

In its stunning, unanimous ruling, striking down Massachusetts’ 35-foot buffer zone around abortion clinics, the Supreme Court draws a bright imaginary line between the stereotypical abortion protester — foaming at the mouth, screaming slurs — and the nice, gentle, quiet people who challenged the buffer zone law.

These aren’t protesters, the court said. They’re sidewalk counselors. They hand out leaflets and offer “an outstretched arm.” They “seek not merely to express their opposition to abortion, but to engage in personal, caring, consensual conversations with women about various alternatives.”

Wow. That’s a rose-colored idea of what can happen on the ground, when a woman is trying to walk into a clinic — to get routine health care, or a cancer screening, or, yes, a legal abortion. Personal, sure. Caring, perhaps. But how consensual can a conversation be when someone is standing in your way and sticking a leaflet in your face?

And what reality are we about to return to?


“This notion that somehow we were eliminating all these wonderful compassionate conversations between protesters and patients that persuaded women not to get abortions — that’s a fiction,” said former state representative Paul Demakis. In his district in 1994, John Salvi III had walked into a Planned Parenthood clinic and shot and killed receptionist Shannon Lowney. Salvi shot and killed receptionist Lee Ann Nichols in another abortion clinic that day.

“I can’t say that it [peaceful conversation] never happened,” Demakis went on. “It certainly did not happen on a regular basis. What the protesters did was — in very aggressive, even offensive ways — to interfere with and to intimidate women going into health clinics to exercise their right to choose.”

Demakis was involved in the early days of crafting Massachusetts’ laws around abortion clinic access. He remembers how attuned lawmakers were to surviving a First Amendment challenge. That’s why they first devised a “bubble zone,” based on a Colorado law that the Supreme Court upheld in 2000. It prevented protesters from coming within six feet of a person — unless that person consented — within an 18-foot radius of a clinic’s entrance.


But it didn’t take long before Boston Police Captain Bill Evans — now the department’s commissioner — went back to lawmakers and told them that the law was unenforceable. It’s a matter of common sense. Do we really think police can be hovering at all times, with measuring tape, to make sure a protester is six feet away from a patient, not six-feet and a quarter inch?

That's what’s missing from Thursday’s ruling: a sense of how these protests play out on the ground. The buffer zone aimed to thread the needle between access and speech, ensuring that women had free passage, but protesters could be heard. (As Demakis points out, 35 feet is “a little more than halfway between home plate and the pitcher’s mound.”)

Without it, said Megan Amundson, director of the National Abortion Rights Action League’s Massachusetts chapter, “for women who don’t want to talk or engage with the protesters, this just makes it so much harder for them to avoid it. Which is where the violence sometimes comes.”

If it’s hard to remember those fraught encounters, maybe that's a sign that the buffer zone worked. Before it was enacted, abortion rights advocates point out, approaching a clinic could be terrifying. Protesters impersonated the police and took down patients’ telephone numbers. They filmed inside patients’ cars. They touched patients’ arms, shoulders, and backs.


Today, Amundson said, clinic workers are hoping they’ll at least see “a different etiquette” around abortion protests. Perhaps the buffer zone was a calming influence while it lasted, and those “sidewalk counselors” have ushered in gentler tactics. Every news story I’ve seen about Eleanor McCullen, the 77-year-old lead plaintiff in the Supreme Court case, refers to her as a grandmotherly type, cheery and sweet. I’m sure her pleasant nature is more effective than screaming and ranting.


More coverage:

Joanna Weiss: Supreme Court is naive

Justices question Mass. abortion clinic buffer zones

Jeff Jacoby: Buffering out the right to hear

Renée Loth: A zone that should be left alone

Yvonne Abraham: Still speaking up for his sister

Audio: Supreme Court arguments on abortion buffer zone

Archive | 1995: Clinic shooting suspect John Salvi captured

Discuss: What do you think of the ruling?

A previous version of this column misspelled the name of a receptionist killed at a Planned Parenthood clinic. She was Shannon Lowney
