The Supreme Court on Wednesday will hear arguments in cases relating to two of the nation’s most controversial and politically dynamic issues, gun possession and abortion rights.
In McCullen v. Coakley, the high court will consider the Massachusetts law, passed in 2007, that makes it a crime for speakers to be within 35 feet of any entrance, exit or driveway of an abortion clinic. The law exempts clinic employees from the rule -- which, the petitioners in the case argue, means that only those who oppose abortion rights are subject to the restriction.
The case was brought forward by Eleanor McCullen, a woman in her mid-70s, and a group of other anti-abortion rights activists who stand outside of clinics to try to dissuade women from getting abortions.
“They are peaceful, non-confrontational, and do not obstruct access,” their brief before the court argues. “Yet, the State prohibits them from entering or standing on large portions of the public sidewalk to proffer leaflets or seek to begin conversations with willing listeners.”
The case rests on the precedent the court set in 2000 in Hill v. Colorado, which upheld Colorado’s “no-approach zone” law. Within 100 feet of health care facilities, the law made it illegal to get closer than eight feet to someone -- without their permission -- to hand out pamphlets or engage counseling, educational discussion or protests.
The anti-abortion rights activists in McCullen argue that this case is different: This sort of restriction of speech “is not content-neutral because it creates speech exclusion zones only at abortion clinics,” they wrote in their brief. At the very least, they argue, the court should consider narrowing the scope of the Hill ruling.
The law’s defenders, meanwhile, point to the law’s effectiveness at curbing violent and aggressive incidents.
Massachusetts abortion clinics were “routinely blocked” since the late 1980s, the state argues in its brief. “Moreover, Massachusetts experienced ‘repeated incidents of violence and aggressive behavior’ at facilities, including a 1994 shooting in which two employees were killed and several other persons were injured.”
The state first attempted to apply a “floating” buffer zone like the one in Colorado, but it was deemed ineffective, and the state changed the law in 2007. The state points out that protesters can still meaningfully engage with women before they enter the buffer zone -- McCullen herself has testified that since the law was changed in 2007 she’s convinced about 80 women not to terminate their pregnancies.
While McCullen may be a sympathetic character, abortion rights advocates argue that she’s not representative of the threat to clinic patients and employees. Abortion clinics have been targeted by arsonists, bombers and murderers, they point out.
“There is an intentional and very sinister attempt of the opposition and anti-choice extremists to change the face of clinic protesters from what we know them to be -- the kind of violent people who have threatened the lives of doctors and really go out of their way to intimidate women,” NARAL president Ilyse Hogue told reporters Tuesday. “This is a coordinated movement with a long history of violence towards women and doctors, and we couldn’t feel more strongly that this buffer zone has to stand.”
After the Supreme Court listens to the McCullen case, it will hear arguments in United States v. Castleman, which considers the scope of a 1996 federal law that bars anyone convicted of a "misdemeanor crime of domestic violence" from possessing a firearm.
At issue is whether the federal law applies to state domestic violence laws that don’t require violent physical force as an element of the offense -- in other words, whether it could be applied to someone who was technically charged with “domestic violence” but didn’t necessarily commit a violent act.
“There is no doubt about what Congress meant to accomplish,” Castleman’s side argues in its brief before the court. Its “goal was to keep firearms from people who ‘engage in serious spousal or child abuse.’ Congress did not intend to impose a lifetime firearms ban on people who engage in ‘offensive touching,’ or cause ‘a paper cut or a stubbed toe.’”
In 2009, James Alvin Castleman was charged with possessing firearms, even though he pleaded guilty in 2001 to one count of misdemeanor domestic assault in Tennessee. However, a district court dismissed the charges because the Tennessee law under which Castleman was charged could be applied for conduct involving a minimal degree of force, such as poking.
Jonathan Lowy, director of the Legal Action Project for the Brady Center to Prevent Gun Violence, told CBS News that the case “has the potential to wipe out the federal law that prohibits domestic violence offenders from possessing guns in many states across the country.”
In many states, he noted, domestic violence laws don’t require violent conduct as an element of the offense. By the logic of Castleman’s side, “even if someone engaged in a violent act that caused bodily injury to their domestic partner, they would not be prohibited under federal law [from owning a gun] unless the statute required physical force as part of an element,” Lowy explained.
Even if an offender doesn’t commit a violent act in one specific case, Lowy argued, that doesn’t mean the law shouldn’t apply to them.
“The whole issue of domestic violence often does not involve specific, individual, extremely violent acts -- there can be a pattern of domestic abuse in which each incident is not necessarily involving violent physical force,” he argued. “We know, and social science proves, with those sorts of domestic abusers, when they have access to guns they often end up using them... Congress understood all of that.”