“Women’s Rights: Just a Viewpoint. Just an Encumbrance.”

One political function of language is to furtively misinform and confuse. Americans are largely desensitized to a bewildering stew of humbug intended to discredit disfavored ideas, facts and people. They fidget through Newt Gingrich’s turgid sermon on Palestinians as “invented” people[1] and Rick Perry’s “Just-a-Theory” homily on gap-filled biological evolution.[2] Ethnicity, cultural history and nationality become muddled. The methods of science and its facts are ignored. In this universe of ephemeral semantics, invented Palestinians are expected to cower before non-invented Zionists. Biological evolution becomes just another theory, along with a ten-thousand-year-old Earth. Thousands of incidences of violence, harassment and intimidation by anti-abortion zealots become welcome, rational and respectful “sidewalk counseling.”

Unfortunately, as the British-American analytical philosopher Max Black reminds us, “The arguments of the marketplace … are more often than not unsound, and correct reasoning is as rare as perfect health.”[3] Even the ultimate keeper of the legal semantics of rights offers no exception to Black’s narrative. We recall Justice Antonin Scalia’s announcement that the first clause of the 2nd Amendment is an “announcement,” not the adverbial phrase of an ablative absolute (District of Columbia v. Heller). “Because we want a citizen army, the government won’t disallow citizens to bear arms while serving in a militia,” becomes “Anyone can possess an AR-15 with a 50 round magazine, a flash suppressor and a night sight.”

The fraud of interpreting the 2nd Amendment as a memorialization of unrestricted firearm ownership rights, as Chief Justice Warren Burger described it, indicates a significant weakness in the Court’s competence in understanding how the meaning of locutions are affected by social and historical realities, and the intentions and actions of speakers. These considerations are central to the study of linguistic pragmatics. Pragmatics focuses on how speech is employed in personal interaction, how it is “coded,” how preexisting knowledge adds meaning to utterances, often revealing the covert intent of speakers. Pragmatic considerations are crucial in understanding speech situations. This is because when humbug meets judicial linguistic incompetence, rights talk and the language itself can become sexist and untoward social policy will likely follow.[4] For the Supreme Court of the United States (SCOTUS) in McCullen et al. v. Coakley (Hereafter, McCullen), health science, harassment and intimidation become linguistically undifferentiated “viewpoints.” When taken collectively, the language of McCullen represents a reckless judicial lexicon equating reproductive science, abortion procedure information and psychological counseling with prayers, threats of eternal damnation and unscientific claims, that leads to a profound confusion of science and religious metaphysics.

Linguistics suitably tamed, the SCOTUS settles McCullen with one stroke of its artfully forged viewpoint and encumbrance doctrines. The ruling concerns the unconstitutionality of areas restricted to the general public around clinics that provide abortion services as required under the Massachusetts Reproductive Health Care Facilities Act (hereafter, M). The Court unanimously ruled that the 35-foot buffer zone is “unconstitutional on the ground that it burdens more speech than is necessary to serve the Commonwealth’s asserted interests.” Justice Alito argues that clinics “may direct or authorize an employee or agent, while within the zone, to express favorable views about abortion or the clinic … I do not think that it is possible to reach a judgment about the intent of the Massachusetts Legislature without taking into account the fact that the law that the legislature enacted blatantly discriminates based on viewpoint.” [5]

We should be concerned about a decision that allegedly unburdens speech by placing vulnerable women at risk. The National Abortion Federation reports that in 2013, there were “incidences of violence, harassment and intimidation, patients and staff have a reasonable apprehension of bodily harm or at least intimidation.”[6] “Intimidation,” according to the Freedom of Access to Clinic Entrances Act (FACE), “means to place a person in reasonable apprehension of bodily harm to him- or herself or to another” at abortion clinics in the US and Canada.[7] FACE also prohibits making it difficult or dangerous to enter or exit a facility. Given the violent history of anti-abortionist activities, it is reasonable to expect that patients might be intimidated in the immediate presence of demonstrators, who represent the kind of clear and present danger buffers are intended to resist. From a pragmatic viewpoint, anti-abortion demonstrators depend upon this violent history to code a feigned benevolence that covertly advances their goal of depriving women of their right to manage their healthcare choices. The employment of a history of violence to code speech in an intimidating manner to advance the goals of a group is an earmark of violent organizations like the Aryan Brotherhood of Texas. FACE intends to protect and promote the public safety and health, as did the Massachusetts law. M’s appreciation of patient and staff rights to safety is reflected in the SCOTUS United States v. Grace (461 U.S. 171, 177). The Court acknowledges that,”[E]ven in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.’”[8] We shall see later that all these conditions are respected in M, which are largely ignored or misconstrues in McCullen.

In order to understand the Court’s confusion concerning the function of the buffer in M, we begin by considering what buffer zones are and what they are intended to do. The Constitution hopes to establish a “more perfect union … [and] insure domestic tranquility.” Free and orderly, if not cordial, public interaction, including speech, helps keep persons and property from harm, and is the bedrock of a well-regulated system of democratic governance. When anti-abortion activists demonstrate at clinics, an immediate threat is present, a condition that justifies the employment of a buffer zone. Citizens expect authorities to protect persons and property in antagonistic situations, as they do when opposing sports fans clash. Separating the adversaries is the first task. M maintains the required public order by physically distancing political antagonists. It recognizes that the prevailing system of democratic social governance exercises inadequate curbs on social violence that are intended to maintain civil order under the prevailing conditions (a current state of society). It also identifies a social end state (domestic tranquility), a need (to control sanctioned behavior) and a functional item (buffers) whose effects (distancing) satisfy the need.[9]

The Court’s inadequate attention to pragmatics, and its underestimation of the public safety threat, offers troubling implications. Jehovah’s Witnesses can now hold “sidewalk counseling” outside of a Red Cross blood drive, because they oppose blood transfusions. Wahhabi councilors can approach female elementary school children to provide alternative viewpoints on child marriage.[10] These scenarios are not hyperbolic. Homophobic Christian Fundamentalists express their viewpoints at the funerals of fallen soldiers, and demonstrators are separated from funerals by buffer zones.

Furthermore, healthcare workers are required by law to provide verified scientific and medical information that the Court considers viewpoints. However, healthcare workers are also obliged not to place patients in danger. Nevertheless, they do so by providing health information when buffers are not in place. Without buffers, abortion worker’s free speech is thus encumbered by a moral dilemma involving unacceptable alternatives. Hence, the Court’s decision creates a speech encumbrance for health care workers, one not placed upon anti-abortion activists.

The Court prohibits all curbs to social violence that engender any encumbrance of speech, which means to the SCOTUS any imaginable loss to the effectiveness of modes of speech. With buffers, “Gone is the right … to address willing listeners. Gone is the right to stand still on the sidewalk holding a sign. Gone is the right to distribute leaflets. Gone is the right to offer help at a normal conversational distance.”[11] Thus, the Court artfully commits a “Line Drawing” fallacy that rejects any argument that buffers do not significantly attenuate some modes speech on the basis that that claim is vague. By doing so, the SCOTUS excludes from the debate an examination of just those potential limitations that must be scrutinized when the establishment of buffers is being considered. It ignores the fact that a 35-foot buffer does not significantly interfere with signage, or standing still at all. Patients and staff can be addressed from a distance. Leaflets can be distributed outside of the buffer zone. Anti-abortion counseling can be advertised and offered at fundamentalist churches and Tea Party offices, which would advance the cause and maximize the modes of communication under dispute. The situational realities of potential violence at clinics suggest that antagonists should be distanced, and therefore some modes of speech might be affected more than others because they keep antagonists at arms length.

The Court’s artifice diverts attention from the central concern of clinic patients and staff. For those placed in danger, the issue does not center on the unfettered exercise to free speech, but on whether maximizing all modes of communication should trump public health and safety under prevailing conditions. This reveals an underlying contradiction. McCullen establishes a universal rule intended to maximize all modes of communication under any circumstances. However by doing so, it universally dismisses consideration of those immediate conditions that admit buffers. It also ignores practical considerations. When buffers are in place, it is taken for granted that some communication may be affected. Nevertheless, buffers are common and established for good reasons, such as between white supremacist and civil rights demonstrators. The historical success of buffers suggests that they remain useful in persistent and extreme cases, such as with M, and much speech continues unaffected. In this regard, the Court commits a “Nirvana Fallacy” by rejecting effective and practicable safeguards because they are not perfect.

The Court also offers a false causality that enables clinic violence. The SCOTUS suggests that buffers cause the attenuation of some of modes of the demonstrator’s speech. To the contrary, the cause of any loss of communication effectiveness is the continuing intimidating and harassing behavior of anti-abortion agitators, which causes buffers to be implemented under appropriate conditions. It is common, and Constitutional, for classes of individuals to be held accountable for shared behavior. Child molesters, for example, as a class are kept from classes of locations such as public schools by buffer zones. Accepting the consequences of collective behavior is a touted Neo-conservative precept from which anti-abortion demonstrators wish dispensation.

Back at square one, we have increasingly disempowered vulnerable patients and staff surrounded by intimidating and potentially violent demonstrators. If acts of intimidation, harassment and violence increase, as they likely will under McCullen, then what remedies remain? When protesters caused patient privacy concerns at a blood drive in Madison, Wisconsin, the event was rescheduled.[12] But clinics can’t be rescheduled or moved beyond the reach of McCullen, but they can be closed. This sad dilemma reveals an additional encumbrance to clinic’s speech rights. It also illuminates a covert function of the semantic trickery of rebranding intimidation as sidewalk counseling, the closure of clinics. One is reminded of Joe Gambino’s rebranding of a Mafia operation as the “Italian-American Civil Rights League,” which was ostensibly intended to fight prejudice against Italian-Americans. Publicly, Gambino expressed his wish to disabuse non-Italians that all Italians were members of the Mafia. Privately, the League was a front for illegal activities, such as shaking down local businesses for “donations.” However, Gambino’s semantic slight of hand didn’t ameliorate mob violence as, ironically, John Gotti had Gambino murdered at a public League event.

The SCOTUS decision is less a defense of speech than a capitulation to fallacy, mythology, anti-science, and misogyny. The SCOTUS incoherently expands the scope of viewpoints include any speech no matter how intensely intimidating or harassing it may be perceived. It ignores the threat and blithely accepts a deceptive semantic rebranding claiming that, “petitioners are not protestors; they seek not merely to express their opposition to abortion, but to engage in personal, caring, consensual conversations with women about various alternatives.”[13] The Court belittles the patient’s situational perceptions by asserting that, “If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners’ message.”[14] It neglects the unique real-world emotions, apprehensions and physical vulnerabilities of women who seek reproductive care. The Court asserts that anti-abortion demonstrators “seek not merely to express their opposition to abortion, but to engage in personal, caring, consensual conversations with women about various alternatives.” Thus, threatening hellfire, video recording of patents and staff, threatening of contractors at clinics and displaying “Baby-Killer” signs become non-threatening speech. Therewith, the SCOTUS stages a semantic farce similar to the one that enabled the NYPD to “protect and serve” the hell out of Occupy Wall Street demonstrators.

McCullen reflects a continuing desecration by the Court of reasoned argument and discourse because the essential pragmatic differences between the languages of science and religion are entirely ignored. These differences become conspicuous whenever there are attempts at requiring the teaching of Creationism along side Evolution are challenged. No Governor Perry, they both are not just “theories.” McCullen and the recent Burwell v. Hobby Lobby Stores[15] (where birth control becomes a form of abortion) enjoy the semantic and logical folly we have illuminated. In these situations, public policy and individual rights become vulnerable to the mischief of those who view them through a distorting lens of a morally certain religious fundamentalism. Massaging the body semantic continues in the recent Harris v. Quinn.[16] Justice Alito disposes of the messy issues concerning the homecare work status of women by dubbing them “just moms.” For The Nation, “It distorts the status of thousands of homecare workers, defining them as employees not of the state but only of those to whom they provide care…and mischaracterizes the origins of homecare work as an alternative to welfare for unemployed black domestic workers and other poor women.”[17] Thus the capacity for language to clarify, to correctly discriminate among concepts and to edify becomes addled when profound scientific insights become “Just a theory” or “Just a viewpoint” and vulnerable human beings become “Just moms.” In the end, the SCOTUS in McCullen relinquishes any claim to its defense of that legal semantic of rights that should protect the public health and safety, expedite the administration of healthcare services and promote a civil society.

In response, all who demand their rights to effective health care and personal safety must continue to oppose these decisions, and the linguistic confusion and humbug from which they emerge. The Socialist Party USA strongly supports women as workers deserving safe working conditions, and human beings who have a fundamental right to determine their healthcare choices.[18] Four points from its National Platform echo our account.

1) We demand full support for every woman’s right to choose when, if, and how to have children, including the right to free abortion on demand at any stage of pregnancy, without interference or coercion. Clinics providing abortion services must have the full protection of the law. (Author’s italics)

2) We call for the repeal of the Hyde Amendment and all other legislation that limits access to abortion services, thus denying “the right to choose” to millions of women, particularly low-income women, women of color, and young women. We demand full reproductive freedom for all women by removing all discriminating barriers to reproductive rights and reproductive health care.

3) We demand that local governments place a priority on preventing violence toward women, with coordinated programs to educate, provide shelter for women and children, and vigorously protect women from their abusers.

4) We believe that women should be free to improve their working lives through unions and other organizations, and that work at home, including childcare, should be shared to enable women to fully participate in society.

The SP-USA Women’s Commission opposes “the Supreme Court’s ruling (Burwell v. Hobby Lobby) and any legislation that limits access to birth control and abortion, for access to contraception is a human right.”[19]

Democratic socialism recognizes the Court’s rulings as symptoms of an exploitive capitalism. They not only enable employers to discriminate against women by withholding contraception coverage in order to maximize profits, but also conveniently provide an excuse for fundamentalist moralizing. In Hobby Lobby, this is routinely accomplished through a puzzling semantic artifice that assigns personhood to corporations.[20] In McCullen, the Court enables right-wing moral zealots to intimidate all who think differently, while reinforcing the prevailing capitalist patriarchy. Our account suggests that democratic socialists take facts seriously and respect the need for reasonable argumentation. Socialists are more conservative than conservatives in their respect for the semantics of rights, and more pragmatically competent than the SCOTUS in their understanding of the linguistic implications of the realities of capitalist social violence.


[1] “Newt Gingrich: Palestinians Are ‘Invented’ People.” Huff Post Politics, 26 January 2012. Web. 7 July 2014.

[2] James, Frank. “Perry to Boy: Evolution ‘A Theory’ With ‘Gaps’; Equates It to Creationism.” www.npr.org, 18 August 2011. Web. 7 July 2014.

[3] Max Black. Critical Thinking. (New York: Prentice-Hall, Inc., 1946): 209. Print.

[4] See Hintikka, Merrill B. and Hintikka, Jaakko. “How Can Language Be Sexist?” Discovering Reality. Ed. Sabdra Harding and Merrill B. Hintikka. (Dordrecht: D. Reidel Publishing Co., 1983): 139-48. Print.

[5] McCullen-v-Coakley, 573 U.S. (2014): 1-3.

[6] “NAF Violence and Disruption Statistics: Incidents of Violence and Disruption Against Abortion Providers in the U.S. and Canada.” National Abortion Federation. Web. 7 July 2014. For a history of personal intimidation at abortion clinics, see Janusdog. “35 Feet.” www.dailykos.com, 26 June 2014. Web. 29 June 2014.

[7] Freedom of Access to Clinic Entrances (18 U.S. Code § 248).

[8] McCullen-v-Coakley: 9.

[9] Our functional description follows Hempel, Carl. “The Logic of Functional Analysis.” Readings in the Philosophy of Science. Ed. Baruch A. Brody. (Englewood Cliffs, NJ: Prentice-Hall, Inc., 1983): 121-47. Print.

[10] Karim, Afsir. “Wahhabism in South Asia.” www.indiandefencereview.com, 5 February 2014. Web. 5 Jul 2014.

[11] McCullen-v-Coakley: 21.

[12] Spicuzza, Mary. “Red Cross reschedules blood drive after Capitol protests became too loud to continue.” Wisconsin State Journal, 31 May 2011. Web. 7 July 2014.

[13] McCullen-v-Coakley: 3.

[14] McCullen-v-Coakley: 22.

[15] Burwell v. Hobby Lobby, 573 U.S. (2014)

[16] Harris v. Quinn, 573 U.S. (2014).

[17] Boris, Eileen et al. “Reducing Labor to Love.” www.thenation.com. Web. 3 July 2014.

[18] “Socialist Party USA: 2013-2015 National Platform.” socialistparty-usa.net. Web. 7 July 2014.

[19] The Socialist Party USA National Action Committee and Women’s Commission. “Statement on Burwell v. Hobby Lobby Supreme Court Decision,” socialistparty-usa.net, 2 July 2014. Web. 7 July 2014.

[20] Citizens United v. Federal Election Commission, 558 U.S. (2010).


J. Richard Marra

lives in Connecticut. He received his Doctoral degree from Cornell University in 1977, majoring in Musical Composition and the History of Music Theory. While on the Faculty of the Peabody Conservatory of Music in Baltimore, he completed graduate work at Johns Hopkins University, majoring in the Philosophy of Science. He is a member of the Socialist Party USA, the Southern Poverty Law Center and the Philosophy of Science Association. His articles have also appeared on the websites of the Secular Buddhist Association and The Hampton Institute. He is a 2014 recipient of the SPUSA's Eugene V. Debs Award. To read other essays by J. Richard Marra, please visit https://sites.google.com/site/thoughtsandthingsjrichardmarra/.

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