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Women lose as belief trumps fact in “buffer zone” and “Hobby Lobby” decisions / by Allison Smartt

This past week was universally dark for women, largely due to two regressive Supreme Court decisions.

First was McCullen vs. Coakley, in which the Supreme Court overturned Massachusetts’ 35-foot abortion clinic buffer zone law. The law made it a crime for anyone to stand on a public walk or sidewalk within 35 feet of a clinic’s entrance. This legislation was motivated largely by the 1994 shootings at abortion clinics in Boston that killed two and wounded five.

The second was Burwell v. Hobby Lobby, a landmark decision wherein the Supreme Court ruled that “closely-held corporations” are entitled to religious beliefs. And that those religious beliefs can determine what sorts of medical coverage an employer can provide an employee. Hobby Lobby, an arts and crafts chain store based in Oklahoma City, objected to providing health insurance coverage to female employees for four particular types of FDA-approved contraceptives which they believe prevent the implantation of a fertilized egg, and are therefore the same as an abortion, and therefore are equal to murder.

At face value, it is obvious why these decisions are a disgrace and a disservice to women. The nuances of the decisions make them even worse, particularly the soft and protective language that the Supreme Court continuously uses to describe anti-choice movement. Words like “gentle” and “counselors” are now compounded with the movements’ self-created mainstream name, “pro-life.” And we can thank SCOTUS for the misplaced positioning of the anti-choice movement as under-dogs that will only further the continued prioritization of corporate over individual, belief over fact and “pro life” over injustice. Take for example in McCullen, Supreme Court Justice Alito’s attempt to imagine a realistic scenario when a woman approaches an abortion clinic:

“A sidewalk counselor, such as petitioners, enters the buffer zone, approaches the woman and says, ‘If you have doubts about an abortion, let me try to answer any questions you may have. The clinic will not give you good information.’ At the same time, a clinic employee, as instructed by the management, approaches the same woman and says, ‘Come inside and we will give you hon¬est answers to all your questions.’ The sidewalk counselor and the clinic employee expressed opposing viewpoints, but only the first violated the statute.”

Here he elevates the religious and political beliefs of an anti-choice protester to be on equal footing with that of a trained clinic employee. This is unsurprising considering the judgments in both of these cases hinge on religious belief trumping science. The Hobby Lobby ruling centers on the idea that, “The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients.” Alito, who writes the Court Opinion in Hobby Lobby, is accepting that simply because Hobby Lobby holds the (scientifically disproven) belief that the four contraceptive methods are abortifacients means that they are abortiafacients. This is even more enraging given that Hobby Lobby paid for Plan B prior to the Affordable Care Act and invests in companies that produce birth control.

Both Alito and Scalia wrote concurring judgments (written opinions that agree with the majority but which express different reasons for their opinion) where over and over again, the anti-choice protestors are referred to as “counselors” and are written about with sympathy and compassion. This kind of tone is utterly absent from the descriptions of women seeking abortions. If we didn’t know where Alito and Scalia stood before, they make it abundantly clear with the language they choose.

This kind of bias is also present in the Court Opinion. From the McCullen decision:

“Given these limitations, McCullen is often reduced to raising her voice at patients from outside the zone—a mode of communica¬tion sharply at odds with the compassionate message she wishes to convey.”

The emphasis is my own. “Reduced” implies that McCullen has no choice but to resort to these aggressive tactics. But McCullen and other protesters do have another choice: They can stop pursuing a woman at any time. But they don’t. Instead, these protestors stop at the zone's edge and yell at women because they aren't concerned whether their conversation remains consensual or not.

The Court Opinion goes so far as to cite several supporting cases that prop up anti-choice opinion as subject to greater constitutional protection by categorizing them as "politically controversial viewpoints." This linkage paired with the eclipsing of science by religious belief, shows just how misguided and out of touch SCOTUS is. We've seen anti-choice legislation introduced and passed in historic numbers, closings of clinics across the country and reproductive healthcare access suppressed at every turn (see Burwell v Hobby Lobby Stores, Inc.). This sympathetic under-dogging of anti-choice politics continues to enforce the very narrative anti-choicers have created for themselves; that they are gentle, well-intentioned champions who just happen to murder abortion providers and use terrorist tactics to prevent access to reproductive healthcare.

But oh no, they are "pro-life."

In both cases, the Court is woefully unaware of the implications their rulings will have. In Hobby Lobby: “The effect…on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero…[T]hese women would still be entitled to all FDA-approved contraceptives without cost sharing.”

In McCullen, the Court points to other “available generic criminal statutes” that can be used to protect a woman's right to access a reproductive healthcare facility, such as “…forbidding assault, breach of the peace, trespass, vandalism, and the like."

Both of these statements are incredible out of touch with actual situations women may face: The gauntlet a woman must pass through when she decides to access abortion care. The fact that healthcare costs money and that if you make minimum wage you will probably struggle to access it. Women face bigger obstacles today than since before Roe, as protestors and so-called "sidewalk counselors" harass people more and more with graphic pamphlets full of false information. And as healthcare costs rise, accessibility is made increasingly difficult. (That is, if you’re lucky enough to live near a clinic.)

Not to mention, that if a woman wants to exercise their right to invoke “available generic criminal statutes” they must have the financial and legal supports to follow through with a lawsuit, which could then become subject to public record. And regardless of how I wish abortion care was regarded, the reality is it is still highly stigmatized and essentially putting abortion on one’s public record might prove too much. (In Massachusetts, a person can get a Harassment Prevention Order. The person seeking it must demonstrate to a judge that there have been at least three incidents of willful and malicious conduct aimed at that person committed with intent to cause fear, intimidation, abuse or damage to property. In the clinic situation, that means a particular protester would have to intimidate a person 3 times before the person could get an Order.)

Unsurprisingly, the Court’s decisions have emboldened anti-choice activists around the country – and why shouldn’t they be? SCOTUS is reinforcing the anti-choice movement as harmless and virtuous in the public’s consciousness. It’s time for the pro-choice movement to take a page from the anti-choice PR campaign. We need to be unapologetic in our demand for women’s equal access to reproductive healthcare - including abortion. We can continue to soften our demands, and thereby relinquish our rights, or we can acknowledge that we are not merely fighting opponents of abortion. We are fighting opponents to sex education, contraceptive care and women’s empowerment. Abortion is at the forefront of their message because they know images of babies will win over hearts and minds. But look just below the surface, and you’ll see that their movement aims to dismantle any and all common sense (never mind progressive) efforts to educate young people about sex, sexuality and reproductive health. When you stand up to support abortion rights, you are also supporting sex education and equal healthcare access for all people.

For further insight into the grim realities of the anti-choice movement, see the one-woman play MOM BABY GOD, an undercover look into “activism, adolescence, and abstinence in the pro-life movement.” Read director and writer Madeline Burrow’s essays for The Media here and here.

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