This past Wednesday the United States Supreme Court heard oral arguments in the case of McCullen v. Coakley. The case concerns a Massachusetts law that creates a 35-foot buffer zone in front of the Commonwealth’s abortion clinics. The law has been consistently upheld in the lower courts, and the Supreme Court has a history of affirming similar regulations that apply to abortion clinic protesting. That said, the changes in the composition of the Court since those earlier cases make it likely that they will strike the Massachusetts law down.
Much of the discussion concerning McCullen has dealt with whether or not the Court will use the case to reverse its 2000 decision in Hill v. Colorado that upheld Colorado’s related buffer zone law. For those invested in preserving access to abortion, the likely removal of the Massachusetts law and the possible reversal of Hill raise concerns that the aggressive street protests of the late 1980s and early 1990s will soon return. While backtracking on clinic-front abortion regulations will likely have some effect—especially in places where it has persisted—the return of large-scale national street politics of abortion is not likely. What’s more, the attention given to a potential resurrection of the street politics of abortion distracts from what McCullen tells us about the contemporary politics of abortion no matter what the Court’s decision.
The progress made creatively regulating access to abortion largely went unnoticed, and thus popularly unopposed, until Texas State Senator Wendy Davis’ filibuster brought attention to the strategy.
The abortion politics of the late 1980s and early '90s are defined by the images of massive blockades and face-to-face confrontations between anti-abortion activists, clinic supporters, and women seeking access to clinics. While direct action activists never fully went away, they have not defined the past two decades of abortion politics. Abortion providers responded to clinic-front activism by securing injunctions and eventually laws like the one disputed in McCullen. The effect of these regulations is unquestionable. The National Abortion Federation, for example, recorded 639 clinic blockades and 33,715 related arrests from 1977 to 1995. From 1996 to 2010, by contrast, they recorded only 125 clinic blockades and 119 arrests. It thus seems natural to assume that if such laws are removed the blockades and arrests will return, but one should also consider the conditions that first produced them.
The contentious street politics of abortion sprang from a particular set of circumstances. Chief among these were the newly formed Christian Right’s deep sense of urgency regarding abortion, their institutional immaturity and unrealistic political expectations, and the frustration that they experienced with national electoral politics. These conditions combined to create national groups that pushed activists into the street in dramatic fashion, and they simply do not exist today in the same way.
The greater Christian Right, inclusive of the anti-abortion movement, has since come to develop impressive multifaceted political institutions, realistic understandings of political means and possibilities, and significant access to state policymakers. Anti-abortion activists have correspondingly relocated the main abortion politics battlefield from the visible, participatory, and volatile streets to the more private, elite, and staid state legislative halls where they have enjoyed significant success. What’s more, the progress that they have made creatively regulating access to abortion largely went unnoticed, and thus popularly unopposed, until Texas State Senator Wendy Davis’ filibuster brought attention to the strategy.
It is also worth noting that while the anti-abortion movement has professionalized and matured, it has also managed to maintain its grassroots activism in the absence of large-scale street protests. Just as with the policy fight, the work of anti-abortion “sidewalk counselors” has moved indoors in the form of “crisis pregnancy centers.” Unlike abortion providers such as Planned Parenthood, CPCs do not provide health or medical services. Instead, they offer information, ultrasounds, material support, and parent training with the aim of dissuading women from obtaining an abortion. They are also able to do so in quiet, uninterrupted privacy. A 2013 New York Times article estimated that about 2,500 such centers existed nationwide—in comparison to approximately 1,800 abortion providers—and that 13 states provided direct financial support for these centers.
One final important lesson from McCullen is the attention that must be paid to the forces behind the case. A team of lawyers organized through Alliance Defending Freedom handled McCullen’s lower court arguments. Mark Rienzi, a senior counsel at the Becket Fund for Religious Liberty, is arguing the case at the Supreme Court. The Becket Fund and ADF are representative of the second generation of well funded, organized, and effective conservative Christian public interest law firms and advocacy organizations. Founded in the mid-'90s, these institutions have developed into powerful forces that help dictate the course of the ongoing conflict over abortion.
No matter how McCullen is ultimately decided, the case is a sign of the movement’s success. It is with these live fronts and actors in abortion politics, and not the potential resurgence of street politics, that advocates for abortion access should be more concerned if they seek to mobilize their constituents and effectively respond.