Amicus Brief of 12 Women Who Attest to the Importance of Free Speech in their Abortion Decisions in...

7/25/2019 Amicus Brief of 12 Women Who Attest to the Importance of Free Speech in their Abortion Decisions in McCullen v.

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No. 12-1168================================================================

In The

Supreme ourt of the United States

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ELEANOR MCCULLEN, JEAN ZARRELLA,GREGORY A. SMITH, ERIC CADIN, CYRIL SHEA,

MARK BASHOUR, and NANCY CLARK,

Petitioners,v.

MARTHA COAKLEY, ATTORNEY GENERAL FOR THECOMMONWEALTH OF MASSACHUSETTS, et al .,

Respondents.

--------------------------------- ---------------------------------On Writ Of Certiorari To The

United States Court Of AppealsFor The First Circuit

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AMICAE CURIAE BRIEF OF 12 WOMEN WHO ATTEST TO THE IMPORTANCE OF FREESPEECH IN THEIR ABORTION DECISIONS

IN SUPPORT OF PETITIONERS

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C ARRIE S EVERINO Counsel of Record

A MMON S IMON J UDICIAL E DUCATION P ROJECT

722 12th St. NWFourth Floor

Washington, D.C. 20005(571) 357-3134

[email protected]

Counsel for Amicae CuriaeSeptember 13, 2013

================================================================COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM


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TABLE OF CONTENTS

Page

TABLE OF CONTENTS ...................................... i

TABLE OF AUTHORITIES ................................. ii

INTEREST OF AMICAE CURIAE ...................... 1SUMMARY OF ARGUMENT .............................. 7

ARGUMENT ........... ............................................. 9

I. The Act, As-Applied, Is Viewpoint-BasedBecause It Exempts Clinic Agents AndEmployees From The Buffer Zone ............. 9

II. The Decision Below Ignores The Well-Established First Amendment Right OfWomen, Such As Amicae Curiae , To Re-

ceive Information About Abortion ............. 16III. The Act Violates The First Amendment

By Leaving Sidewalk Counselors Without An Adequate Channel To CommunicateTheir Messages .......................................... 29

CONCLUSION ..................................................... 35


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TABLE OF AUTHORITIES

Page

C ASES

Carey v. Brown , 447 U.S. 455 (1980) ......................... 13

City of Ladue v. Gilleo , 512 U.S. 43 (1994) ................ 32Clark v. Community for Creative Non-Violence ,

468 U.S. 288 (1984) ................................................... 9

Hill v. Colorado , 530 U.S. 703 (2000) ................ passim

Hoye v. City of Oakland , 653 F.3d 835 (9th Cir.2011) .............................................................. 8, 13, 14

Kovacs v. Cooper , 336 U.S. 77 (1949) ................... 17, 33

Lamont v. Postmaster General , 381 U.S. 301(1965) ....................................................................... 17

Martin v. Struthers , 319 U.S. 141 (1943)................... 17

McCullen v. Coakley , 708 F.3d 1 (1st Cir. 2013) ... passim

McIntyre v. Ohio Elections Commn , 514 U.S.334 (1995) ................................................................ 31

Planned Parenthood of Cent. Mo. v. Danforth ,428 U.S. 52 (1976) ................................................... 17

Planned Parenthood of Southeastern Pa. v.Casey , 505 U.S. 833 (1992) ..................................... 25

Red Lion Broadcasting Co. v. FCC , 395 U.S.367 (1969) ............................................................ 8, 16

Schenck v. Pro-Choice Network , 519 U.S. 357(1997) ..................................................... 10, 30, 31, 33

Sorrell v. IMS Health Inc ., 131 S. Ct. 2653(2011) ................................................................. 13, 16


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TABLE OF AUTHORITIES Continued

Page

Stanley v. Georgia , 394 U.S. 557 (1969) .................... 16

State Bd. of Pharmacy v. Virginia Citizens

Consumer Council , Inc. , 425 U.S. 748 (1976) ........ 16United States v. Alvarez , 132 S. Ct. 2537 (2012) ......... 8

United States v. OBrien , 391 U.S. 367 (1968) ........... 13

United States v. Playboy Entmt Group , 529U.S. 803 (2000) .......................................................... 9

Ward v. Rock Against Racism , 491 U.S. 781(1989) ............................................................. 9, 30, 33

CONSTITUTION

U.S. Const. amend. I .......................................... passim

S TATUTES

2007 Mass. Adv. Legis. Serv. 155 ............................... 33

G A . C ODE A NN . 31-9A-4 ............................................ 21

M ASS . G EN . L AWS ch. 266, 120E 1/2 (2007) .......... 7, 18

M ASS . G EN . L AWS ch. 266, 120E 1/2 (2000) .............. 18

OHIO R EV . C ODE A NN . 2317.56 ................................. 21

18 P A . C ONS . S TAT . A NN . 3208 .................................. 21

OTHER S OURCES

David M. Fergusson, et al., Abortion in YoungWomen and Subsequent Mental Health , 47 J.CHILD P SYCHOL . & P SYCHIATRY 16 (2006) .......... 12, 27


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TABLE OF AUTHORITIES Continued

Page

M. Gissler et al., Injury deaths , suicides andhomicides associated with pregnancy , Fin-land 1987-2000 , 15 E UROPEAN J. P UB .H EALTH 459 (2005) .................................................. 27

P.K. Coleman, Abortion and mental health:quantitative synthesis and analysis of re-

search published 1995-2009 , 199 B RITISH J.P SYCHIATRY 180-86 (2011) ....................................... 27

Planned Parenthood, In-Clinic Abortion Proce-dures, http://www.plannedparenthood.org/health-topics/abortion/in-clinic-abortion-procedures-4359.htm .................................................................. 12

W. Pedersen, Childbirth , abortion and subse-quent substance use in young women: a popu-lation based longitudinal study , 102

A DDICTION 1971-78 (2007) ....................................... 27


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INTEREST OF AMICAE CURIAE 1

Amicae are women who attest to the importanceof free speech in their abortion decisions.

Cindy Adams was uninformed about abortion and

its consequences. Her abortion clinic told her that itwas only medically doing what your body naturallydoes every month, it would be quick and painlessand she would be back to [her] normal self in a day.Instead, her abortion left her with a lifetime ofregret. Because of the abortion, she became promis-cuous and began drinking heavily . . . to help dull thepain and shame she felt. She wanted to die in anaccident rather than face her pain.

Marlynda Augelli had an abortion even thoughthe abortion clinic did not provide information on theactual life of the child. Her abortion and resultingtremendous psychological trauma factored into herfirst divorce. According to Marlynda, she wishes shehad been told the truth . . . about the life of theunborn . . . [or] childbirth and being a mother. If shehad, she says that she would have never made thechoice to end the life of my first child, who mighthave been the glue that would have kept my marriage

and family together.

1 Counsel for both parties have consented to the filing ofthis amicus brief. Their written consents accompany this brief.No counsel for a party authored this brief in whole or in part.The Judicial Education Project contributed the costs associatedwith the preparation and submission of this brief.


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Nona Ellington was convinced by PlannedParenthood employees to get an abortion becausethey believed she was too young to have a baby, andher baby [was] just a blob of tissue. She neverheard any other information about other options,

fetal development, or the procedure itself. Nona wentthrough many years in denial and emotional numb-ness without much regard for living. For Nona, ifsomeone would have approached me to help me andgive me valuable information as I was walking intothe abortion clinic, I probably would not have had anabortion and suffered the horrible consequences forthe rest of my life. Nona regretted that she neverknew that abortion might not have been [her] bestoption. For her, the manner of offering information

would have made a crucial difference in her recep-tiveness, as she would have ignored people yelling atme from a distance and would have only felt moreshame.

Paula Lucas-Langhoff s then-boyfriend forcedher into an abortion by threatening her life, andholding her captive, saying that I could not leaveuntil I had an abortion. The abortion clinic providedmisleading information about the abortion, includ-

ing that her baby was only a blob of tissue. She didnot know that her child was basically fully formed,had a heartbeat, and reacted to pain. The nightbefore her abortion, she wandered the neighborhoodlooking for someone to help her, to no avail. The nextday, when she tried to back out of the abortion, herdoctor yelled at [her] and said that [she] was wasting


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his time. She would give anything to change thepast, and believes that she would have not had anabortion if she had met a pro-life counselor outside ofthe clinic. My baby died because I was alone and hadno one to help me. However, at her time of greatest

need, she insists that she would not have respondedwell to someone that was 35 feet away from theclinic, shouting at me or using a bullhorn.

JM explains that she became pregnant as acollege sophomore after a classmate raped her. Shedidnt know where to go for help and didnt knowabout abortion alternatives, such as crisis pregnancycenters. She says she was pressured by abortionworkers to go through with the abortion, even after

she expressed doubt about wanting to have an abor-tion. She was barely given enough time to read thepaperwork she was required to sign and was trou-bled that they never asked to see my medical rec-ords. Abortion had very negative consequences forher health. She spent 19 days in the psychiatricward of a hospital with major depression, suicidalthoughts, and psychosis and [f]or nearly 25 years. . . struggled with chronic anxiety, depression, andfeeling worthless. She really wanted and needed . . .

thorough and accurate information, but never re-ceived it. As a result, she never made a real choice,because it wasnt fully informed. If she would havetalked with the pro-life counselors that were outsidethe clinic, she believes that she would have chosenlife, and spared myself and my family 25 long yearsof having to deal with my health problems, both


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emotional and physical, and had a chance at a soundand healthy marriage.

Madonna Medina had an abortion over 33 yearsago, but still remember[s] it as if it was yesterday.She explains that the people I should have trustedthe most pressured me into choosing abortion, in-cluding her doctor and her fianc. Her prayer thatpro-life counselors would be outside of the abortionclinic to stop her went unanswered. For Madonna,she couldnt deny the emptiness [she] felt inside,physically, spiritually and emotionally. She experi-enced devastating long-term consequences from theabortion, and endured constant thoughts of suicideas a result.

Jean Pickett had two abortions, at an abortionclinic that provided [her] with no counseling and noother options. She believes that if she had met acaring pro-life counselor, she might have not had anabortion. A counselor that tried to frighten me orshout me down would have been ineffective, how-ever, and if she had seen someone protesting in aGrim Reaper costume, she would have thought theyshould be locked up. Her abortions did seriousdamage to my mental and physical health, andcaused emotional instability, anger, and addiction.

Esther Ripplinger had an abortion at age 19,because she says she did not receive life-affirminginformation when I asked for it. She asked the clinicstaff about the babys stage of development, and wastold Its only a blob of tissue, but later learned her


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baby actually had hands, feet, and a beating heart.She was also told the procedure was quick-and-painless and would only cause minor discomfort,but she later felt shocking and excruciating pain.She suffered from depression and anxiety from what

she called the worst decision I have ever made andher pain and incredible loss from her abortion willlast[ ] a lifetime. She believes that [i]f someone hadgiven me information and alternatives as I walkedinto the clinic, I would not have made this choice.Unfortunately, her memory is only of people withpictures of dead babies shouting, which she per-ceived as not loving and caring for my needs.

Heather Shearfield says that her abortion was a

mistake that would change the rest of my life. Theabortion clinic assured her that the baby was tissueand not a life or even a child. This relieved her,because she was terrified that this was a child andthat my decision was wrong. The abortion causedher to become the hardest, meanest individual [she]could be, in an attempt to stop the hurting and griev-ing. For the next 24 years, she drank alcohol andused drugs, and pursued intoxication with a desper-ation that [she] didnt recognize in [herself].

Patti Smith had two abortions, at an abortionclinic that treated abortions like something as rou-tine as a dental filling, and did not provide any typeof comfort or assurance, or talk about abortionalternatives. After her abortion, she could not look atherself in the mirror, and became increasinglypromiscuous, drank more, and was hell-bent on


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self-destruction. She thought suicide was her onlyway out. According to Patti, if she would have met apro-life counselor that showed her love and compas-sion, I think I would have taken a different path.But, she says that [i]f there had been people there

screaming and holding pictures of aborted babies, Iwould have walked right by them. Unfortunately,she says that [n]one of my friends was trying todissuade me and she felt that she had no choice.Thirty years later, she still cries about her abortion.

Susan Swander had three abortions. Susanexplains that two took place during an affair with amarried man, who pressured me into an abortion.She said that she never met an abortion clinic em-

ployee that ever mentioned alternatives to abortionto me, or any relevant medical details about theabortion, such as the physical and emotional risks tomy health. She was treated as just a body with . . .cells that [the clinic] would remove. She suffered for36 years from depression, guilt, shame, alcoholicdrinking, drug use, promiscuity, overeating, anddeep-seated anger. She wishes that someone wouldhave told her about her other options before she hadher abortions. Even though she says that [s]omeone

outside a clinic with a bullhorn would have made meangry, she maintains that a calm message aboutabortion alternatives could have resonated with meenough so that she might not have had an abortion.

Molly White had two abortions. Before her firstabortion, she said that she asked the clinic staffabout the abortion procedure and was told it was a


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minor, safe procedure that would clean me out andthat it had the same discomfort level as a menstrualcycle. She said that the clinic staff answered herquestion with lies and misinformation. Her abortioncaused continual bleeding, a damaged cervix, and

uterine scarring, which led to two stillborn childrenand a miscarriage. She believes that [i]f someonehad been outside of the clinic offering me help andinformation, talking face-to-face with me, I wouldhave decided against having the abortion, which wasthe most regrettable decision of my life.

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SUMMARY OF ARGUMENT

Amicae can testify to the difficulties of being in acrisis pregnancy, including the appearance of limitedoptions and consequent feelings of hopelessness.However, they also believe that these difficulties areexacerbated by incomplete and misleading infor-mation about the abortion procedure, fetal develop-ment, and abortion alternatives, and greatly regrettheir decisions to have an abortion. The law upheldby the Court of Appeals, M ASS . G EN . L AWS ch. 266, 120E 1/2 (2007) (the Act), effectively prevents

other women in a similar situation from receivingthis information by dramatically limiting the speechof individuals offering abortion alternatives, whileleaving ample communication channels for abortionproponents. This discrimination undermines the veryessence of the First Amendment by silencing one side


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of what may be the most profound and most deeplyemotional political and moral debate of our day.

This Court has held repeatedly that [i]t is thepurpose of the First Amendment to preserve anuninhibited marketplace of ideas in which truth willultimately prevail, rather than to countenance mo-nopolization of that market. . . . Red Lion Broadcast-ing Co. v. FCC , 395 U.S. 367, 390 (1969) (citationsomitted). Without a vibrant and functioning market-place, society loses the best test of truth, which isthe power of [a] thought to get itself accepted in thecompetition of the market. United States v. Alvarez ,132 S. Ct. 2537, 2550 (2012). By misapplying thisCourts precedents, the decision below undermines

the marketplace of ideas by failing to adequatelyscrutinize a content-based regulation of speech. Italso restricts both the ability of speakers to com-municate their message, and of willing listeners likeamicae to access critical information. The decisionbelow is the most extreme decision in a line of lowercourt cases that have misinterpreted this Courtsdecision in Hill v. Colorado , 530 U.S. 703 (2000), andis in conflict with the Ninth Circuits decision in

Hoye v. City of Oakland , 653 F.3d 835 (9th Cir.

2011).This curtailment of the First Amendment has

very destructive consequences. Forced further awayfrom their intended audience by ever-expandingbuffer zones, pro-life educators and counselors, how-ever peaceful, civil and compassionate, are becomingincreasingly precluded from delivering their message:


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a message that would have been welcomed by audi-ence members such as amicae . These buffer zone lawsmake off-limits to these speakers the only plot of landon earth where their message has any plausiblelikelihood of achieving its desired effect.

Because the reasoning of the Court of Appealsposes a grave threat to the First Amendment, thisCourt should intervene and set clear limits on Hill sreach.

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ARGUMENT

I. The Act, As-Applied, Is Viewpoint-BasedBecause It Exempts Clinic Agents AndEmployees From The Buffer Zone

In analyzing a government restriction on speech,the first question is whether that restriction is con-tent- or viewpoint-based, subjecting the restriction tostrict scrutiny, or content-neutral, triggering lessexacting scrutiny. Compare United States v. Playboy

Entmt Group , 529 U.S. 803, 813 (2000) (applyingstrict scrutiny), with Ward v. Rock Against Racism ,491 U.S. 781, 791 (1989) (the government may

impose reasonable restrictions on the time, place, ormanner of protected speech, provided the restrictionsare justified without reference to the content of theregulated speech, that they are narrowly tailored toserve a significant governmental interest, and thatthey leave open ample alternative channels for com-munication of the information (quoting Clark v.


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Community for Creative Non-Violence , 468 U.S. 288,293 (1984))). Hill v. Colorado does not relieve theCourt of performing this analysis by presuming thatall buffer zone laws are content- and viewpoint-neutral. On the contrary, Hill s holding of content

neutrality was conceded by the parties, and its com-mentary on viewpoint discrimination was highly fact-based. The Court of Appeals improperly applied Hill to the Act as the facts of the Colorado law at issue in

Hill are in stark contrast with those in the instantcase.

In discussing the content-neutrality of the stat-ute in Hill this Court was careful to limit its commen-tary to the specific facts of that case. The Court found

significant the fact that the statute only minimallyburdened the delivery of the pro-life counselorsmessage. The statute in Hill allowed for a normalconversational distance, while allowing individualsto either remain in place and pass out literature, orcome within 8 feet of clinic patients. Hill , 530 U.S. at726-27 (quoting Schenck v. Pro-Choice Network , 519U.S. 357, 377 (1997)). Had the statute either imposeda significantly larger bubble, or exempted a particularviewpoint from the bubbles jurisdiction, this Court

would have likely reached a different conclusion.2

2 This supposition is especially probable given the reason-ing of the four-Justice concurrence:

[T]he reason for [the statutes] restriction on approach-es goes to the approaches, not to the content of thespeech. . . . [T]he content of the message will survive on

(Continued on following page)


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The Court of Appeals finding of facial neutralitycan only be credited at the most superficial level.While in theory an exemption for clinic agents andemployees could be neutral, in reality those exemptedparties consistently favor abortion ideologically and

have strong pecuniary incentives for doing so. Indeed,as the law is written, the exemption for clinic em-ployees and agents is for speech in the scope of their

employment or agency , which necessarily presentsonly a favorable perspective toward abortion. This isin stark contrast to the law upheld in Hill , whichblocked pro-choice and pro-life speech equally. See

Hill , 530 U.S. at 725 (The statute is not limited tothose who oppose abortion. It applies to all protest,to all counseling, and to all demonstrators whetheror not the demonstration concerns abortion, andwhether they oppose or support the woman who hasmade an abortion decision. That is the level of neu-trality that the Constitution demands).

Clinic representatives need not stand in front ofclinics to inform pregnant women of the precise scopeof their abortion rights or answer questions about theprocedure itself, the safety precautions taken, or theirview of its potential after-effects. Such information isreadily available on the other side of the clinics

any sign readable at eight feet and in any statementaudible from that slight distance. Hence, the implau-sibility of any claim that an anti-abortion message,not the behavior of the protestors, is what is beingsingled out.

Hill , 530 U.S. at 738 (Souter, J., concurring).


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doors. But pro-life advocates know that if they areunable to deliver their message outside the clinic,prospective clients, like many of the amicae , will beunlikely to receive detailed information about thestage of development of their unborn babies, the

details of the abortion procedure, or the risks of long-lasting emotional, psychological and even physicalharm. 3 The consequences of being prevented fromcommunicating this type of information are immedi-ate and irreversible; there is no second-best resultand there are no second chances. See Hill , 530 U.S. at792 (Kennedy, J., dissenting) (Here the citizens whoclaim First Amendment protection seek it for speechwhich, if it is to be effective, must take place at thevery time and place a grievous moral wrong, in their

view, is about to occur).

3 For example, according to the Planned Parenthoodwebsite, Most women ultimately feel relief after an abor-tion. . . . Serious, long-term emotional problems after abortionare about as uncommon as they are after giving birth. PlannedParenthood, In-Clinic Abortion Procedures, http://www.plannedparenthood.org/health-topics/abortion/in-clinic-abortion-procedures-4359.htm (last visited Sept. 9, 2013). Empirical research,however, raises serious doubts about the factual accuracy of

such a statement. See , e.g. , David M. Fergusson, et al., Abortionin Young Women and Subsequent Mental Health , 47 J. C HILD P SYCHOL . & P SYCHIATRY 16 (2006) (finding a direct correlationbetween a womans history of abortion and her risk of anxiety,depression, suicide, drug dependence, and poor mental health).The testimony of the amicae also tends to illustrate thatPlanned Parenthoods position is not representative of allwomen.


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A viewpoint-based exemption to a neutrally-phrased law, like the exemption from the Act for clinicrepresentatives, is equivalent to a viewpoint-basedlimit on speech. See , e.g. , Carey v. Brown , 447 U.S.455, 460-61 (1980) (holding a general prohibition on

picketing except by those involved in a labor disputeto be viewpoint-discriminatory on its face); see also

Hoye , 653 F.3d at 854 (rejecting facial challenge toabortion clinic buffer zone statute, while upholdingchallenge as-applied, due to an unconstitutionalcontent-discriminatory enforcement policy thateffectively exempted clinic representatives from thelaw). Furthermore, the analysis of whether a speechlimitation is neutral, even facially, must go deeperthan the Court of Appeals cursory analysis and

address the logical effects of the law. See Sorrell v. IMS Health Inc ., 131 S. Ct. 2653, 2663 (2011) (theinevitable effect of a statute on its face may render itunconstitutional (quoting United States v. OBrien ,391 U.S. 367, 384 (1968))).

But, even if the Court of Appeals is correct thatthe Act is neutral on its face, it is clearly viewpoint-based as-applied, and thus should be subject to strictscrutiny. As Petitioners allege in their complaint,

clinic representatives surround, cluster, yell, makenoise, mumble, and/or talk loudly to clinic clients forthe purpose of disrupting or drowning out pro-lifespeech and thwart Plaintiffs efforts to distributeliterature. McCullen v. Coakley , 708 F.3d 1, 19-20(1st Cir. 2013). Petitioners complaint also allegesthat clinic employees and/or agents stand idly on the


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public sidewalks and streets inside the [buffer] zone sometimes smoking, speaking with each other or onmobile phones, or drinking coffee even when clinicclients are not present. Id. at 20. Petitioners explainthat the law precludes up-close, gentle conversa-

tions, accompanied by smiles and eye contact requir-ing shorter, louder, and less personal exchangesthat are ineffective and render Petitioners untrust-worthy. Id. at 30. The decision below even admitsthat the law curtails the plaintiffs ability to carry ongentle discussions with prospective patients at aconversational distance, embellished with eye contactand smiles, id. at 31, and that patients are notreadily accessible to the plaintiffs [in Worcester andSpringfield], id. at 33. Petitioners testimony com-

ports with a number of amicae s declarations, whichrecount how such strained attempts at communica-tion would have been off-putting to the pregnantwoman, 4 whereas a normal conversation could havemade a difference in her ultimate choice. 5

In this sense, the decision below conflicts square-ly with that of the Ninth Circuit in Hoye , which helda buffer zone to be content-based as-applied becausethe City of Oakland selectively enforced its statute

against pro-life counselors but not clinic representa-tives. See 653 F.3d at 851-52 (The Citys policy ofdistinguishing between speech that facilitates access

4 See infra note 6.5 See infra note 15.


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to clinics and speech that discourages access is notcontent-neutral. It is the epitome of a content-basedspeech restriction . . . [To do so is] necessarily todistinguish on the basis of substantive content).

The Court should resolve this conflict and clarifythat the Colorado statute at issue in Hill was treatedas viewpoint- and content-neutral only because itsrestrictions did not significantly burden speech of anyviewpoint or subject matter in front of abortionclinics. As Hill explained, the comprehensiveness ofthe statute is a virtue, not a vice, because it is evi-dence against there being a discriminatory govern-mental motive. Hill , 530 U.S. at 731.

The Massachusetts statute, by contrast, should

be declared viewpoint-discriminatory both on its faceand as-applied. Unlike in Hill , this statute does notapply to all health facilities such as hospitals. See

Hill , 530 U.S. at 715. Moreover, the Massachusettslegislature specifically targeted only the public prop-erty surrounding abortion clinics where sidewalkcounselors have long offered information and supportto pregnant women considering abortions andcreated such vast no-speech zones that pro-life coun-selors are for all practical purposes entirely precludedfrom delivering their message to their intendedaudience.

Such an expansive speech restriction, appliedonly to individuals on one side of the abortion debate,is far outside the bounds of Hill s viewpoint-neutrality test and should be invalidated.


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II. The Decision Below Ignores The Well-Established First Amendment Right OfWomen, Such As Amicae Curiae , To Re-ceive Information About Abortion

In affirming the constitutionality of the Act, the

Court of Appeals undermined the ability of Massa-chusetts women to make fully informed choices aboutabortion. The decision below, unprecedented in itsbreadth and scope, ignores important First Amend-ment principles laid down by this Court concerningthe right to receive information. Because the rights atstake here are crucial to the purpose of the First

Amendment, and because as the stories of theamicae demonstrate the consequences of theirabridgement can be severe, this Court should clarifythis rights boundaries.

It is now well-established that the Constitutionprotects the right to receive information and ideas.Stanley v. Georgia , 394 U.S. 557, 564 (1969); see alsoState Bd. of Pharmacy v. Virginia Citizens ConsumerCouncil , Inc. , 425 U.S. 748, 756-57 (1976). The pur-pose of the First Amendment is to ensure that civilsociety develops a marketplace of ideas so that thetruth may be found. See Sorrell , 131 S. Ct. at 2674

(recognizing the constitutional importance of main-taining a free marketplace of ideas, a marketplacethat provides access to social, political, esthetic,moral, and other ideas and experiences in order toallow the public to freely choose a governmentpledged to implement policies that reflect the peoplesinformed will (quoting Red Lion , 395 U.S. at 390)).


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Creating a true marketplace of ideas requires protect-ing the rights of both speakers and listeners.

Just as a speakers First Amendment rightentails a certain level of access to an audience, see

Kovacs v. Cooper , 336 U.S. 77, 87 (1949) ([t]he rightof free speech is guaranteed every citizen that he mayreach the minds of willing listeners and to do so theremust be opportunity to win their attention), so doesa listeners right include the right to receive infor-mation, see Martin v. Struthers , 319 U.S. 141, 143(1943) (The First Amendment embraces the right todistribute literature and necessarily protects the rightto receive it ) (emphasis added) (citations omitted). Alaw that removes a listeners reasonably unfettered

ability to know what information is available rendersthis right practically meaningless, impermissiblyburdening the listeners First Amendment rights. See

Lamont v. Postmaster General , 381 U.S. 301, 308(1965) (Brennan, J., concurring) (citations omitted)(The dissemination of ideas can accomplish nothingif otherwise willing addressees are not free to receiveand consider them. It would be a barren marketplaceof ideas that had only sellers and no buyer).

Nowhere is a robust supply of information moreimportant than in difficult and crucial decisionsabout abortion, and amicae provide clear examples ofthe profound effects that receipt of information canhave on individual choices. This Court has longrecognized the importance of women making educat-ed decisions about abortion. See , e.g. , Planned

Parenthood of Cent. Mo. v. Danforth , 428 U.S. 52, 67


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(1976) (The decision to abort, indeed, is an importantand often a stressful one, and it is desirable andimperative that it be made with full knowledge of itsnature and consequences). Women have the right toreceive information about abortion from counselors

with multiple perspectives on the issue, includingthose who have no economic interest in abortion,without interference from the state.

The strikingly broad decision of the Court of Appeals ignores the burden the Act places on therights of women entering reproductive health centers.The Act prohibits a woman from having a conversa-tion, receiving a leaflet, or engaging in any type ofcommunication except with clinic employees and

agents within a 35-foot fixed buffer zone in all direc-tions. Unlike the previous version of the statute,which contained an exception for consensual commu-nication, see M ASS . G EN . L AWS ch. 266, 120E 1/2(B)(2000), the current version of the statute prohibits allcommunication within the buffer zone, see M ASS . G EN .L AWS ch. 266, 120E 1/2(B) (2007). The Act applies toinvited and uninvited approaches alike, regardless ofhow peaceful and welcomed the speech is. Even if awoman entering a clinic affirmatively chooses to

communicate with one of the Petitioners, Petitionercould not enter the buffer zone to communicate withher.

By restricting consensual speech, the Act violatesthe right of women to receive information aboutabortion. In Hill v. Colorado , this Court upheld abuffer zone law that contained an exception for


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consensual speech, and indicated that a law withoutsuch an exception would raise independent constitu-tional issues. In upholding that eight-foot floatingbuffer zone law, this Court was careful to limit itsreasoning only to cases where the statute at issue

strikes an acceptable balance between the constitu-tionally protected rights of law-abiding speakers andthe interests of unwilling listeners. . . . 530 U.S. at714 (emphasis added). This Court repeatedly empha-sized the significance of the Colorado laws exceptionfor consensual speech: it is . . . important . . . torecognize the significant difference between staterestrictions on a speakers right to address a willingaudience and those that protect listeners from un-wanted communication. Id. at 715-16 (emphasis

added). Despite Hill s repeated admonitions, theCourt of Appeals failed to consider the burden theMassachusetts statute placed on the First Amend-ment right of willing listeners to receive informationabout abortion procedures. But Massachusetts has nolegitimate interest in prohibiting willing listenersfrom communicating with speakers inside the bufferzone.

It is no answer to say that the women approach-

ing an abortion clinic could walk outside the 35-footradius created by the ordinance to talk to pro-lifecounselors. Counselors attempting to communicatewith women entering a reproductive health center areeffectively prevented by this law from peacefullyinitiating communications in a conversational tone.From 35 feet away, a conversational voice will be


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wholly drowned out by the loud background noise ofcity streets, even without the intentional attempts byclinic employees and agents to interfere with speechof pro-life counselors attested to by Petitioners. See

McCullen , 708 F.3d at 19-20 (plaintiffs aver that

pro-choice advocates . . . surround, cluster, yell, makenoise, mumble, and/or talk loudly to clinic clients forthe purpose of disrupting or drowning out pro-lifespeech and thwart Plaintiffs efforts to distributeliterature ).

If individuals like Petitioners are prohibited fromattempting to approach to initiate a conversation,women like amicae will likely never discover thatthere are people willing to have a calm and rational

conservation with them about the consequences ofabortion. Amica Esther Ripplinger, for example,recalls entering a clinic for her abortion and onlybeing confronted with people with pictures of deadbabies shouting, saying she viewed them as notloving and caring for my needs. She maintains that[i]f someone had given me information and alterna-tives as I walked into the clinic, I would not havemade this choice to have an abortion. Her experienceillustrates the inadequacy of the alternatives availa-

ble to individuals like Petitioners under the Act.Similarly, even though Amica Susan Swander wantedto hear about alternatives to abortion, she would nothave responded to information unless delivered in acaring, personal way: Someone outside a clinic witha bullhorn would have made me angry if I hadheard someone screaming at me during my crisis, I


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would have probably yelled right back. Instead, shestated that a message about abortion alternativescould have resonated with me, but I needed someoneto talk to me in a calm tone of voice, or a gentletouching of my elbow to ask if they could talk to me. 6

Further, there is no other source of neutralinformation about abortion readily available to wom-en who visit reproductive health facilities in Massa-chusetts. Unlike some other states, Massachusettsreproductive health centers are not required to pro-vide information about the consequences of abortion.See , e.g. , O HIO R EV . C ODE A NN . 2317.56(B)-(C); 18P A . C ONS . S TAT . A NN . 3208(a)(2); G A . C ODE A NN . 31-9A-4(a)(2). Moreover, given the pecuniary interest

6 See also , e.g. , Declaration of Nona Ellington (Although Iwould have been open to hearing about abortion alternatives, Iwould have ignored people yelling at me from a distance andwould have only felt more shame); Declaration of Paula Lucas-Langhoff (Even though pro-life counselors would have helpedme, I would not have responded to someone that was 35 feetaway from the clinic, shouting at me or using a bullhorn. In mycrisis situation I was so focused in my fear that I would not havebeen able to see a sign being held that far away . . . I know that Iwould not have heard anyone physically at a distance of 35feet); Declaration of Jean Pickett (I did not see pro-life counse-lors outside of the clinic either time. If I had seen someone

protesting in a Grim Reaper costume, I would have thought theyshould be locked up. That type of protesting is counterproductiveand would have only made me become more firmly pro-choice);Declaration of Patti Smith (There were no sidewalk counselorsoutside the clinics for either of my abortions. If there had beenpeople there screaming and holding pictures of aborted babies, Iwould have walked right by them. If you yell, scream, and holler,thats not going to do anything).


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reproductive health-care clinics have in providingabortions, it is eminently sensible to maintain ahealthy skepticism regarding the objectivity andforthrightness of clinic personnel when advisingpatients about the nature of the abortion procedure

and its potential risks. Amicae insist that they needed information and

either did not get it from clinic personnel, or wereprovided with misleading information. For example,several amicae were told incorrectly that their abor-tion would not hurt, 7 causing them to be unpreparedfor an intensely painful procedure that left severalamicae incapacitated or even hospitalized for days. 8

Amica Esther Ripplinger described it as excruciating

pain that left her gripping for my life, feeling thesting of death in the most tender part of my body as

7 See , e.g. , Declaration of Cindy Adams (They had told methat it would be quick and painless, and that I would be back tomy normal self in a day); Declaration of Esther Ripplinger (thewoman told me I would feel minor discomfort and that mostgirls just feel a pinch, gesturing on her arm); Declaration ofMolly White (I then asked about the abortion procedure andwas told it was a minor, safe procedure that would clean meout and that it had the same discomfort level as a menstrual

cycle).8 See , e.g. , Declaration of Cindy Adams (I had the abortionand was shocked at how painful it was); Declaration of PaulaLucas-Langhoff (I stayed 10 days in AZ because I was not wellenough to leave [because of the abortion] and I lost my jobbecause they did not know where I was and I was too weak tocall); Declaration of Madonna Medina (The abortion was themost horrifying and painful experience of my life).


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although they would have welcomed informationabout resources and support for pregnant women. 11

Amica Paula Lucas-Langhoff in particular testifiedthat when she told the doctor at the clinic that shedid not want an abortion, he berated her for wasting

his time and bullied her into going through with theabortion. 12 Their experiences all illustrate the dangerof leaving the abortion clinic and its agents as the

11 See , e.g. , Declaration of JM (I didnt know where to go forhelp. I hadnt heard of a crisis pregnancy center, and didnt knowof any maternity homes in my area); Declaration of JeanPickett (Again, they provided me with no counseling and noother options); Declaration of Esther Ripplinger (I had anabortion because I did not receive life-affirming informationwhen I asked for it . . . I was not made aware of the manycommunity services available for pregnant women); Declarationof Patti Smith (I wish someone had simply said, Can I talk toyou for a minute before you go in, because maybe there areoptions you havent considered. None of my friends was trying todissuade me, and the abortion clinic didnt give me otheroptions. I felt that I had no choice); Declaration of SusanSwander (No clinic employee ever mentioned alternatives toabortion to me. . . . I wish there had been someone there to tellme about my options before I had my abortions); Declaration ofMolly White (Neither did I have any information about abortionalternatives or crisis pregnancy centers where I could go forinformation and help).

12 See Declaration of Paula Lucas-Langhoff (When I finally

got up the courage to tell the doctor and nurse that day that Idid not want an abortion, the doctor yelled at me, and said that Iwas wasting his time. . . . I pleaded with them at first, in tears,but finally submitted to the doctor, because I had grown up in ahousehold of abuse, and was not equipped to defend myselfwithout anyone else on my side); see also Declaration of JM(The abortion workers pressured me to go through with theabortion, even though I expressed doubt to them).


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sole purveyors of information to women in such avulnerable situation.

While the First Amendment does not require thatstates provide women with information about fetaldevelopment or the alternatives to and potential side-effects of abortion, it does protect those third-partyentities that want to share that information. BecauseMassachusetts does not require the dissemination ofthis information and because abortion clinics them-selves are not neutral sources of information, it isespecially crucial that the government not impedethird parties, such as Petitioners, from making thisinformation available to women considering an abor-tion.

The Court should address these issues becauseserious consequences result when women decide toterminate their pregnancies without full information.The right to receive information about abortionshould receive special attention because of the riskthat a woman may elect an abortion, only to discoverlater, with devastating psychological consequences,that her decision was not fully informed. Planned

Parenthood of Southeastern Pa. v. Casey , 505 U.S.833, 882 (1992) (plurality opinion). As Justice Kenne-dy observed in his dissent in Hill , there is [n]o betterillustration of the immediacy of speech, of the urgen-cy of persuasion, of the preciousness of time, 530U.S. at 792, than the abortion protester seeking toinform a vulnerable and often distraught youngwoman of the true nature of, and alternatives to, theirrevocable decision she is about to make.


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The stories of amicae demonstrate that somewomen experience deep regret when they choose toabort a child without knowing all the facts. Severalamicae attest they have suffered psychologically and,in some cases, physically, as a result of abortion

decisions made with incomplete, misleading, or falseinformation. 13

13 See , e.g. , Declaration of Cindy Adams (I became promis-cuous and began drinking heavily, doing anything to help dullthe pain and shame that I felt. I also did what I could to preventmyself from becoming pregnant, as I felt I was unworthy ofhaving another child. I prayed that God would let me die in anaccident so I would not have to continue feeling so much pain);Declaration of Marlynda Augelli (I was riddled with guilt andremorse and there was nothing I could do to stop those feel-

ings. . . .); Declaration of Nona Ellington (I spent many yearsin denial and emotional numbness, without much regard forliving); Declaration of JM (My abortion brought devastatingconsequences. Seven months after my abortion, I spent 19 daysin the psychiatric ward of a hospital with major depression,suicidal thoughts, and psychosis. For nearly 25 years, Ivestruggled with chronic anxiety, depression, and feeling worth-less); Declaration of Madonna Medina (I did anything to dullthe pain turning to drinking and drug use and felt like I hadlost my sanity; all it took to lose control was hearing a baby cryor children sing. I endured constant thoughts of suicide);Declaration of Jean Pickett (My abortions did serious damageto my mental and physical health. They took a toll on my

friendships and romantic relationships, and caused emotionalinstability, anger, and addiction); Declaration of HeatherShearfield (From that moment on I became the hardest,meanest individual I could be, in an attempt to stop the hurtingand grieving. . . . I had drank and used drugs prior to this,however now I meant business. I pursued intoxication with adesperation that I didnt recognize in myself. And this lasted forthe next 24 years. . . . The desperation, depravity, remorse,



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The experiences of amicae are representative ofthe experiences of many women. Empirical researchon the psychological effects of abortion suggests thata woman who has undergone an abortion may face anumber of difficulties. There is a direct correlation

between a womans history of abortion and her risk ofanxiety, depression, suicide, drug dependence, andpoor mental health. See David M. Fergusson et al.,

Abortion in Young Women and Subsequent Mental Health , 47 J. C HILD P SYCHOL . & P SYCHIATRY 16 (2006). A number of other studies have also found similarcorrelations. 14

regret and shame I lived through I cannot even begin to de-scribe); Declaration of Patti Smith (After my first abortion, Ibecame increasingly promiscuous, drank more, and was hell-bent on self-destruction. . . . I also punished myself for theabortions, by having a tubal ligation and thus surgically remov-ing my ability to have a child. Fifteen years ago, my perceiveddepravity made me incapable of looking myself in the mirror, soI believed suicide was the only alternative); Declaration ofSusan Swander (I suffered for 36 years from depression, guilt,shame, alcoholic drinking, drug use, promiscuity, overeating,and deep-seated anger); Declaration of Molly White (Myabortions caused me continual bleeding, a damaged cervix, anduterine scarring, which gave me two stillborn children and amiscarriage).

14

See , e.g ., M. Gissler et al., Injury deaths , suicides andhomicides associated with pregnancy , Finland 1987-2000 , 15E UROPEAN J. P UB . H EALTH 459 (2005) (suicide); P.K. Coleman,

Abortion and mental health: quantitative synthesis and analysisof research published 1995-2009 , 199 B RITISH J. P SYCHIATRY 180-86 (2011) (mental health); W. Pedersen, Childbirth , abortion and

subsequent substance use in young women: a population basedlongitudinal study , 102 A DDICTION 1971-78 (2007) (drug use).


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The stories of the amicae demonstrate that theseconsequences can, in some cases, be prevented if thestate merely steps out of the way and allows the kindof rational moral discussion protected by the First

Amendment to occur. Several amicae assert that they

would not have chosen to have an abortion had theyreceived accurate information. 15

15 See , e.g. , Declaration of Cindy Adams (If [pro-life counse-lors] had been there to share the truth, then I would have beenblessed with the opportunity to see my only biological child);Declaration of Marlynda Augelli (I did not receive . . . anyinformation . . . about the risk of physical and psychological sideeffects. . . . If I had heard the risks beforehand, I could havemade an educated decision and I would not have aborted mychild); Declaration of Nona Ellington (If someone would have

approached me to help me and give me valuable information as Iwas walking into the abortion clinic, I probably would not havehad an abortion. . . . I just never knew that abortion might nothave been my best option); Declaration of Paula Lucas-Langhoff(That night, the night before the abortion, I wandered theneighborhood looking for someone, anyone that I could talk towho could help. . . . I would give anything to change the past. Ifpro-life counselors had been outside the abortion clinic thatevening, my child would be alive today, but I was too youngand frightened to know what to do. . . . My baby died because Iwas alone and had no one to help me); Declaration of JM(What I really wanted and needed in the midst of my crisis,was thorough and accurate information. Instead, my choice

wasnt a real choice, because it wasnt fully informed); Declara-tion of Esther Ripplinger (If someone had given me informationand alternatives as I walked into the clinic, I would not havemade this choice); Declaration of Patti Smith (There were nosidewalk counselors outside the clinics for either of my abor-tions. . . . [I]f there was someone showing me love and compas-sion, I think I would have taken a different path. . . . [T]heabortion clinic didnt give me other options. I felt that I had no



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Amicae s experience is consistent with that ofPetitioners. For example, Petitioner McCullen atteststo persuading around 80 women to choose to continuetheir pregnancies, while Petitioner Zarrella recountsthe same for more than 100 women. Pet. 14-15. These

stories illustrate the impact free speech can have on awomans decision-making process. Information aboutabortion can have a life-altering effect, and the gov-ernment should not deny a woman the opportunity toreceive it.

III. The Act Violates The First Amendment ByLeaving Sidewalk Counselors Without An

Adequate Channel To Communicate TheirMessages

The decision of the Court of Appeals also puts animpermissible burden on the First Amendment rightsof would-be sidewalk counselors and all individuals,including amicae curiae and Petitioners, who wishto speak peacefully to women visiting reproductive

choice); Declaration of Susan Swander (I wish there had beensomeone to tell me about my options before I had my abor-tions. . . . If someone had given me correct information about mybabies, post abortion trauma, and abortion alternatives, I truly

believe I might have made different choices my 3 childrenmight be alive today); Declaration of Molly White (I believe mychildren would be alive today if there had been sidewalk counse-lors in front of the clinics where I went to have an abortion. Ifsomeone had been outside of the clinic offering me help andinformation, talking face-to-face with me, I would have decidedagainst having the abortion, which was the most regrettabledecision of my life).


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health clinics. Even if the Court of Appeals is correctthat the Act is a time-place-manner restriction, it is arestriction that clearly fails to leave open alternativechannels of communication as required by Ward v.

Rock Against Racism , 491 U.S. 781, 802 (1989). In

upholding the Act, the Court of Appeals assures usthat Petitioners voices are audible and placards arevisible from 35 feet away, while reminding us thatPetitioners may still pray, use sound amplifiers,congregate in groups outside a clinic employ sym-bols, wear evocative garments, and don costumes.

McCullen , 708 F.3d at 31. This excises from the First Amendment the right to engage in rational discourse,preserving only a vulgar right to shout at distantpassers-by. The Hill Court, on the other hand, found

significant that Colorados 8-foot buffer zone stillallows the speaker to communicate at a normalconversational distance. Hill , 530 U.S. at 726-27(quoting Schenck , 519 U.S. at 377). Most abortioncounselors are understandably not interested inshouting slogans in the vicinity of an abortion clinic;they instead aim to discuss the dangers of abortionwith those contemplating the decision to have one. 16 Some ideas cannot be shared through simplistic T-shirt slogans or shouted over bullhorns.

Likewise, the Court of Appeals insistence thatas long as a speaker . . . [may] reach her intended

16 Amicae s declarations support Petitioners belief thattheir message is less effective when delivered only throughshouting at women from a distance. See supra note 4.


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audience, the Constitution does not ensure that shealways will be able to employ her preferred method ofcommunication, is problematic on at least two levels.

McCullen , 708 F.3d at 31 . First, this Courts discus-sion of handbilling in both Schenck and Hill suggests

that there is some limited right to engage in certainforms of communication that lie at the heart of theFirst Amendment, and that merely offering alternatemeans of communication is therefore not necessarilyan adequate alternative. Schenck , 519 U.S. at 377; seealso Hill , 530 U.S. at 727 (The burden on the abilityto distribute handbills is more serious because itseems possible that an 8-foot interval could hinderthe ability of a leafletter to deliver handbills to someunwilling recipients, explaining that handbillers

may still stand[ ] near the path of oncoming pedes-trians to hand out their material instead). Indeed,this Court has described handing out leaflets in theadvocacy of a politically controversial viewpoint asthe essence of First Amendment expression, addingthat no form of speech is entitled to greater constitu-tional protection. . . . McIntyre v. Ohio ElectionsCommn , 514 U.S. 334, 347 (1995).

This Court also suggested in Hill that the availa-

bility not of alternate means of speaking altogether,but of handbilling in particular, even profferinghandbills to unwilling recipients, was important.Thus it noted that a speaker offering handbills couldstill stand[] near the path of oncoming pedestriansand proffer[ ] his or her material, which the pedestri-ans can easily accept. 530 U.S. at 727. Under the


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Act, handbilling would be rendered virtually impossi-ble because of the distance counselors are required tostand from entrances, putting them well outside thepath of oncoming pedestrians. Id.

The Court of Appeals hasty dismissal of a speakersright to use her preferred method of communicationfurther ignores the fact that some communicationmethods do carry unique features, as this Courttaught in City of Ladue v. Gilleo , 512 U.S. 43 (1994).Just as a lawn sign is a venerable means of commu-nication that is both unique and important, City of

Ladue , 512 U.S. at 54, so normal conversation carriesa particular message of caring and personal respectthat shouting or distant picketing with signs or

costumes could not convey.While on its face the Act may appear to merely

forbid certain means of communication by banningspeech by non-clinic employees or agents within a 35-foot radius, as applied it can prevent all communica-tions about abortion alternatives. For example, theCourt of Appeals acknowledged that patients at boththe Worcester and Springfield clinics were not readi-ly accessible to the plaintiffs due to the location ofclinic entrances in relation to the buffer zone.

McCullen , 708 F.3d at 33. The practical difficulty and at times impossibility of initiating conversationwith women squarely conflicts with Hill , whichunderscored that the First Amendment protects theright of every citizen to reach the minds of willinglisteners and to do so there must be opportunity towin their attention. Hill , 530 U.S. at 728 (quoting


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Kovacs , 336 U.S. at 87) (emphasis added). The ques-tion, ultimately, is whether the First Amendmentprotects merely the right to cheer for ones own teamor whether it protects the right to a fair opportunityfor persuasion through the free exchange of ideas. We

respectfully ask this Court to re-affirm the latterprotection.

Finally, by forbidding all non-clinic-based speechin a fixed area, the Act burden[s] substantially morespeech than is necessary to further the governmentslegitimate interes[t] in promoting public health andsafety. Ward , 491 U.S. at 799. This intrusion is notnecessary to achieving their statutory goal of increas-ing public safety at reproductive health care facili-

ties. 2007 Mass. Adv. Legis. Serv. 155. In fact, by thetime of the laws passage in 2007, there had been noadjudicated violation of Massachusetts previous lessrestrictive buffer zone law, or even from 2000 to 2007,prosecution during that period under any state,federal or local law directly targeting violence, ob-struction, intimidation, trespass, or harassment atabortion clinics in Massachusetts. Pet. 6.

While the Hill Court did state that a speechrestriction may satisfy the tailoring requirementeven though it is not the least restrictive or leastintrusive means of serving the statutory goal, 530U.S. at 726, it did not eliminate this tailoring re-quirement altogether. Hill explains that a time, place,or manner restriction must be narrowly tailored toserve the governments legitimate, content-neutralinterests. Hill , 530 U.S. at 726 n.32 (quoting Ward ,


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491 U.S. at 798). It pointed specifically to the waythat speech was still possible under the Coloradostatute at issue:

the 8-foot restriction on an unwanted physi-cal approach leaves ample room to communi-cate a message through speech. Signs,pictures, and voice itself can cross an 8-footgap with ease. If the clinics in Colorado re-semble those in Schenck , demonstrators withleaflets might easily stand on the sidewalk atentrances (without blocking the entrance)and, without physically approaching thosewho are entering the clinic, peacefully handthem leaflets as they pass by.

530 U.S. at 729-30. The Court of Appeals, on the

other hand, completely failed to address how a ruleexcluding those silently distributing leaflets, standingin place with signs, or engaging in consensual conver-sations, from a much larger fixed zone is remotelyrelated to let alone tailored to the asserted gov-ernmental interest in public safety.

The Court of Appeals also misread Hill by failingto take into consideration a crucial caveat to thisCourts discussion of narrow tailoring: that the lower

bar for narrow tailoring only applied to a content-neutral regulation [that] does not entirely forecloseany means of communication. Hill , 530 U.S. at 726.Even if the Court of Appeals is correct that the Act iscontent-neutral, it clearly forecloses certain means ofcommunication, including handbilling as discussed


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above, and thus is materially different from the typeof regulation discussed in Hill .

--------------------------------- ---------------------------------

CONCLUSION

For the foregoing reasons, as well as those ex-pressed in Petitioners brief on the merits, Amicaerequest that this Court reverse the judgment of theCourt of Appeals.

Respectfully submitted,

C ARRIE S EVERINO Counsel of Record

A MMON S IMON J UDICIAL E DUCATION P ROJECT 722 12th St. NWFourth FloorWashington, D.C. 20005(571) [email protected]

Counsel for Amicae Curiae

Dated: September 13, 2013


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APPENDIX


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TABLE OF CONTENTS

Page

Declaration of Cindy Adams ............................... App. 1

Declaration of Marlynda Augelli ......................... App. 4

Declaration of Nona Ellington ............................ App. 6Declaration of Paula Lucas-Langhoff ................. App. 9

Declaration of JM .............................................. App. 14

Declaration of Madonna Medina ...................... App. 19

Declaration of Jean Pickett ............................... App. 22

Declaration of Esther Ripplinger ...................... App. 24

Declaration of Heather Shearfield .................... App. 27

Declaration of Patti Smith ................................ App. 31

Declaration of Susan Swander .......................... App. 33

Declaration of Molly White ............................... App. 36


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App. 1

Declaration of Cindy Adams

I CINDY ADAMS , declare based on personalknowledge as follows:

1. I am over the age of 18 and competent to testify.

2. I had an abortion in 1985. I was pro-choice thenand saw my child as only a potential life.

3. When I became pregnant, my boyfriend told me itwasnt the right time for us to have a child, and therewould be plenty of time for us to have a family. Iagreed without putting any thought into this decisionbecause I believed it was not yet a baby. I was barely6 weeks pregnant, and had no physical reasons toknow that anything was going on inside my womb.

The abortion clinics counseling consisted of tellingme that an abortion was only medically doing whatyour body naturally does every month and askingwhether this was what I wanted to do.

4. I had the abortion and was shocked at how pain-ful it was. They had told me that it would be quickand painless, and that I would be back to my normalself in a day. I spent the next couple of days on thecouch crying from pain and from a sense of depres-

sion. I felt more shame and fear of someone discover-ing what I had done than I had felt about someonediscovering that I had premarital sex and had gottenpregnant. I didnt understand what was happening tome. I convinced myself that it would pass and pre-tended life was normal and happy. About eightmonths later I had a dream where I saw my baby boy.


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I was holding him in my arms, and we were lovinglygazing at each other. He was so beautiful. When Iawoke, I was convinced I had just seen my son.

5. My life from this point was filled with destructivebehavior. As is normally the case, the father and I didnot stay together. I became promiscuous and begandrinking heavily, doing anything to help dull the painand shame that I felt. I also did what I could toprevent myself from becoming pregnant, as I felt Iwas unworthy of having another child. I prayed thatGod would let me die in an accident so I would nothave to continue feeling so much pain. My shamekept me from seeking the help that I needed.

6. A couple of years after the abortion, I shared myabortion story with a friend and began the process offorgiving myself. Forgiveness came, but my shamestayed for 23 years. After a failed marriage and moredrowning in despair, I turned to faith in 2007, andfinally experienced forgiveness and freedom fromshame. I began reading, researching, and getting asinformed as possible about abortion. It was duringthis research that I learned that a heartbeat can bedetected as early as 18 to 22 days after conception younger than my baby when I had my abortion. I wasso shocked to learn this I cried for a couple of hours.Obviously this medical fact was not shared with meby the abortion clinic I went to.

7. I will mourn my son and the lost opportunity ofmotherhood for the rest of my life as I have alwayswanted children. I know that my son, Francis McKinley,


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knows that I love him and that I was blind to thetruth of when life actually begins. In memory of mybeloved son, I will not be silent about the truth thatlife begins at the moment of conception.

8. I now stand on the sidewalks outside our localabortion clinic in an attempt to prevent the killing ofmore innocent unborn babies and to save their par-ents from the pain and suffering I experienced, andfrom a lifetime of regret. Besides peacefully praying,we try to offer women fetal development information,support, and options that will not result in the killingof their child. If we are not there to provide thisinformation, then their only source will be the decep-tive Planned Parenthood website that attempts tominimize the number of women who regret theirabortions and to whitewash the abortion procedureitself.

9. I wish that the loving people that I now standwith outside our local abortion clinic had been at theabortion clinic that I walked into over 28 years ago. Ifthey had been there to share the truth, then I wouldhave been blessed with the opportunity to see myonly biological child.

I declare under penalty of perjury that the fore-going is true and correct.

Executed on the 5th day of September, 2013

MADISON, ALABAMA

/s/ Cindy Adams


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App. 4

Declaration of Marlynda Augelli

I MARLYNDA AUGELLI , declare based onpersonal knowledge as follows:


2. When I had my abortion I was a married womanand 26 years old. It was 1974 and legal abortion wasvery new in our society and at that time there was noinformation on the pro-life side, only this wonderfulnew freedom to choose that women were beinggiven.

3. I went to a private doctor for my abortion. Thedoctor treated me well, very professionally and gentlybut gave me no information on the actual life of the

child.4. He was the doctor and I was his patient. He wasan ob/gyn and delivered far more babies than heaborted at that time in his career. Im sure if I was tomeet the man today he would probably say he wasduped like the patients he treated.

5. I wish that I had been told the truth because if Ihad known anything about the life of the unborn or ifI had a clue at that time about childbirth and being amother I would have never made the choice to endthe life of my first child.

6. A few years later nothing had changed in mycircumstances but my heart had changed. I becamepregnant again and today I have a 26-year-old daugh-ter who is now the mother of three children. I now


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App. 5

have 4 children and 3 grandchildren. I was one of thelucky ones. I was able to have other children. I had nophysical side effects that I am aware of.

7. I did have tremendous psychological trauma,which ultimately was a factor in my divorce from myfirst husband the father of the child that wasnt oneof the lucky ones. Today I speak out against abortionbecause I personally have experienced the aftermathand destruction of abortion on the family and society.

8. If given the choice again I would today have athirty one year old child that I believe would havebeen a first born son. That child might have been theglue that would have kept my marriage and familytogether. He might have been the one to change thewhole course of the history of our family.


Executed on the 11th day of September, 2013

MT. JULIET, TN

/s/ Marlynda Augelli


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App. 6

Declaration of Nona Ellington

I NONA ELLINGTON , declare based on per-sonal knowledge as follows:


2. I had an abortion at age 15 and in the 10th grade. After being forced into sexual intercourse with myboyfriend, I realized after a few weeks that I waspregnant. My boyfriend and I had already broken up.

3. I went to a Planned Parenthood in Houston, TXto get a free pregnancy test to confirm that I waspregnant. They told me that at this stage of only 5weeks of pregnancy, it was only a blob of tissue. Theyalso suggested that I could have an abortion, since I

was so young and still in school. I agreed. My sisterand several friends at school all thought it was reallyno big deal, people do it all the time, especially sinceyoure still in school, and I thought it would be terri-ble to try to go to school pregnant.

4. I was overwhelmed by shame and guilt, evenbefore the abortion. When I told my ex-boyfriend thatI was pregnant and needed money for an abortion, hedenied that he was the father, which deepened my

shame.5. Around Oct. 1983, my Mom and sister took me toa local abortion facility. I dont remember seeing anyprotestors outside. When I got there, I went into aroom by myself with a lady that was telling me that Imay lose the ability to have children after the abor-tion because of my age and small size. I didnt really


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care because I was not thinking of ever getting mar-ried or having children at age 15. She also told methat my baby is just a blob of tissue. I never heardany other information about other options, fetaldevelopment, or the procedure itself. While the nurse

was giving me the anesthesia, I heard my mothersvoice at the door. She said is my daughter in there?The nurse told her you cant come in here maam,you need to go back to the waiting room. I believe myMom was trying to stop what was happening. I alsobelieve that if she would have heard what the counse-lor told me about never having children, she wouldhave taken me out of there

6. The abortion was extremely painful. I remember

hearing the roar of the vacuum machine sucking myinsides out. It felt like I was being ripped apart. Itwas the most horrible experience I have ever beenthrough. After the abortion, they took me to a recov-ery room, gave me juice and crackers, and had me laydown after giving me a pad for the horrible bleeding.

7. Almost immediately after the abortion, I spiraledinto a very destructive lifestyle of drugs, alcohol andpromiscuous sex. I was completely spiritually void,rebelling against my Christian upbringing. I spentmany years in denial and emotional numbness,without much regard for living. As I was goingthrough the motions, trying to fill this huge voidwithin me, I attached myself to an abusive relation-ship less than a year after the abortion, as a result ofextremely low self-esteem. I also attempted suicide asa result of recurring depression.


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8. The abortion ruined all chances of having chil-dren. During my marriage of 18 years, I suffered 5miscarriages, with 3 of them being tubal pregnancieswhich required emergency surgery and very neardeath experiences. I am unable to have children. My

abusive marriage ended in divorce, but I am free fromthe abuse I suffered from years of low self-esteem. Iso wanted an atonement baby to make up for the oneI killed.

9. If someone would have approached me to help meand give me valuable information as I was walkinginto the abortion clinic, I probably would not havehad an abortion and suffered the horrible conse-quences for the rest of my life. They could have taken

me to a pregnancy center, or given me a sonogram soI could see my baby and hear the heartbeat. I justnever knew that abortion might not have been mybest option. Although I would have been open tohearing about abortion alternatives, I would haveignored people yelling at me from a distance andwould have only felt more shame.


Executed on the 6th of September, 2013HOUSTON, TEXAS

/s/ Nona Ellington


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Declaration of Paula Lucas-Langhoff

I Paula Lucas-Langhoff , declare based onpersonal knowledge as follows:


2. I had a forced abortion in 1981 at age 19, when Iwas 11 and a half weeks pregnant.

3. My then-boyfriend forced me into getting anabortion in Arizona over Christmas, when I wasvisiting him from Illinois. When I arrived in Arizona,he threatened our future together and picked up ahandgun and pointed it at me. I felt afraid and mylife threatened when he gave me an or else ultima-tum. After he took away my plane ticket, money, and

his car keys, he held me captive, saying that I couldnot leave until I had an abortion.

4. I went to the abortion clinic twice. I entered theclinic with fear and trepidation and had no intentionof getting an abortion. I thought the clinic workerswould help me consider all my options. Instead, thefirst thing they wanted was their $350. They did notwant to know how I was doing or whether I was sureI wanted an abortion.

5. On the first day, I asked for more information,but was instead given misleading information aboutthe abortion. I was told by the clinic counselor thatthe baby was only a blob of tissue and a mass of cells,and that I was too young to raise a child on my own.She also told me I had just 3 days to decide becauseat 12 weeks the embryo would become a baby and


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they would not do the procedure. I believed themwhen they said it was not a baby, and did not knowthat my child was basically fully formed, had a heart-beat, and reacted to pain. She told me the procedurewas easy and that it would take care of the prob-

lem.6. The first day they inserted a seaweed tampon-like device to dilate my cervix. I was told I wouldhave cramping and that the next day I would comeback so the doctor could clean me out using vacuumsuction. When I got home I tried to remove the devicein the bathtub, but couldnt reach it. That night, thenight before the abortion, I wandered the neighbor-hood looking for someone, anyone that I could talk to

who could help. I considered whether I should knockon a strangers door. I looked for a police patrol carbut there was none.

7. My boyfriend drove me to the abortion clinic onthe day of the abortion, and I was looking out thewindow to determine if I would survive jumping outof the moving vehicle. I went into the abortion clinicfrightened and determined not to have the abortion.

8. When I finally got up the courage to tell the

doctor and nurse that day that I did not want anabortion, the doctor yelled at me, and said that I waswasting his time. They said they had lots of girlslined up waiting. I pleaded with them at first, intears, but finally submitted to the doctor, because Ihad grown up in a household of abuse, and was not


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equipped to defend myself without anyone else on myside.

9. They punctured my amniotic sac with a hugeneedle. I was lied to and had been told that I wasbeing given a para-cervical block injection to numbthe pain, but it was actually what they used to killmy child. There was a lot of pain throughout theprocedure and I wanted to die. After I endured theprocedure, I was forced to lie on the table for 15minutes with the lights turned off, next to a glasssuction container that held the fluids and body partsof my child, including what looked like my childs footpressed up against the glass. They came to get meand told me I had to leave because they needed the

room. I had lost so much blood that I fainted on theelevator on the way out, and 3 days later I had amassive infection that required antibiotics.

10. I stayed 10 days in AZ because I was not wellenough to leave and I lost my job because they didnot know where I was and I was too weak to call.When I was finally allowed to leave, I cried through-out the entire three-hour flight. While I have forgivenmy ex-boyfriend, he still cannot forgive himself, andit nearly destroyed both of us.

11. I would give anything to change the past. If pro-life counselors had been outside the abortion clinicthat evening, my child would be alive today, but I wastoo young and frightened to know what to do. Side-walk counselors could have been my chance to get outof the abortion, and could have rescued me from a


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forced abortion. My baby died because I was aloneand had no one to help me.

12. Even though pro-life counselors would havehelped me, I would not have responded to someonethat was 35 feet away from the clinic, shouting at meor using a bullhorn. In my crisis situation I was sofocused in my fear that I would not have been able tosee a sign being held that far away.

13. I know that I would not have heard anyonephysically at a distance of 35 feet; my house is 40 feetwide and I cant hear my husband when he shoutsfrom the kitchen. I also wouldnt have been ableemotionally to hear a message shouted from 35 feetaway, I was so lost in my own thoughts. I needed acaring individual to compassionately come up to meface-to-face on my way into the clinic, tap me on theshoulder, and say something like Hey sweetie, can I

just have a moment of your time, and tell you aboutsome other options? That could have saved my child.

14. I will be 52 years old this year. More than 30years after my abortion, there is not a day that goesby that I dont think of my baby and what kind of lifewe could have had. I have carried the burden of

regret and shame for most of my life because of asupposed choice. What choice did I and my babyhave? The answer is that we were given no choice. Asingle pro-life counselor could have saved our lives.


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Executed on the 8th day of August, 2013

HUSTISFORD, WISCONSIN

/s/ Paula Lucas-Langhoff


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Declaration of JM

I JM , declare based on personal knowledge asfollows:


2. I became pregnant is 1988, as a sophomore incollege, after a classmate raped me.

3. I was traumatized and scared, especially after Isuspected that I was pregnant. I went to a familyplanning clinic the only place I knew to go whichconfirmed my pregnancy and told me I could seekadoption or have an abortion. They did not give meany details about either option that day.

4. I returned a few days later and told them that Ihad chosen an abortion. All the clinic gave me wascontact info for the abortion clinic, and a warning toget there early to avoid the protesters peacefulsidewalk counselors and women who regretted havingabortions in that facility.

5. I chose abortion even though I thought it takes alife, because I was afraid of my rapist, who tried tointimidate me into silence, and I resented how unfairmy situation was. I was also afraid of being tied tothe perpetrator for life if he knew he had fathered mychild, and I was afraid of my parents reaction, whatothers would think of me, and of getting behind inschool. I didnt know where to go for help. I hadntheard of a crisis pregnancy center, and didnt know ofany maternity homes in my area. My decision toabort was especially heart-wrenching and difficult


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because my birth mother put me up for adoptioninstead of choosing abortion when she had her owncrisis pregnancy.

6. I got there early to avoid the protestors asadvised. The abortion workers pressured me to gothrough with the abortion, even though I expresseddoubt to them. When the sidewalk counselors arrived,the staff ridiculed the protesters, saying it was easyfor them to tell us not to abort when theyve alreadyhad their abortions in their facility. I was barelygiven enough time to read the paperwork that I hadto sign for the abortion, and they never asked to seemy medical records. They herded us the more than30 women that were there for an abortion all like

cattle into a long, narrow hallway and stairwellwhere we got in line for our procedure. As I lookeddown from the upstairs window and watched the twosidewalk counselors holding up their signs and talk-ing kindly and peacefully with people coming in thedoors, I kept wanting to back out, I wished I could gotalk to them, but the long and

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Transcript of Amicus Brief of 12 Women Who Attest to the Importance of Free Speech in their Abortion Decisions in...