On Monday the Supreme Court announced it will hear a challenge on the constitutionality of buffer zones around abortion clinics when it takes up McCullen v. Coakley, a case that has been winding its way through the federal courts since at least 2001.
In January 2013 a federal appeals court upheld the latest version of a Massachusetts law that makes it a crime to “enter or remain on a public way or sidewalk” within 35 feet of the entrance, exit, or driveway of a “reproductive health care facility.” The law exempts any employees or agents of the clinic, so long as they are acting within the scope of their employment. The law creates a fixed buffer zone around the driveways and entrances of clinics and was challenged by seven people who regularly engaged in anti-abortion “counseling” outside three clinics in the state. They challenged the constitutionality of the law under the First and Fourteenth Amendments, arguing that it restricts the speech of “only those who wish to use public areas near abortion clinics to speak about abortion from a different point of view” and is therefore an impermissible content-based regulation.
The issue of buffer zones for anti-abortion demonstrators has come before the Supreme Court several times in the last decade, beginning in 1994 with Madsen v. Women’s Health Center. In that case, a Florida state court ordered that anti-abortion demonstrators could not protest within 36 feet of an abortion clinic, make loud noises within earshot of the clinic, display images observable from the clinic, approach patients within 300 feet of the clinic, or demonstrate within 300 feet of the residence of any clinic employee. The Florida supreme court upheld the lower court’s ruling in its entirety and the demonstrators appealed to the Supreme Court, which upheld most but not all of the restrictions; the Court upheld the parts of the law that restricted demonstrating within 36 feet of the clinic, making loud noises within earshot of the clinic, and making loud noises within 300 feet of an employee’s residence, but rejected the prohibitions against displaying images, approaching patients within 300 feet of the clinic, and peacefully picketing within 300 feet of an employee’s residence, determining they were too broad and restricted too much speech.
The Supreme Court next examined the issue of buffer zones outside abortion clinics again in its 1997 decision Schenck v. Pro-Choice Network of Western New York. In Schenck, three doctors and four medical clinics near Rochester and Buffalo filed a lawsuit in federal court against 50 individuals and three organizations, Operation Rescue, Project Rescue Western New York, and Project Life of Rochester, alleging that the protesters would block access to abortion clinics by kneeling or lying in driveways and similar conduct. The lower court issued an injunction against the protesters, prohibiting them, with the exception of two sidewalk counselors, from protesting within 15 feet of abortion clinic entrances and driveways and within 15 feet of vehicles and patients entering or leaving a clinic. In analyzing the law, the court distinguished between what it called fixed and floating buffer zones. The provision prohibiting protesters within 15 feet of fixed physical locations (the abortion clinics) created a fixed buffer zone, while the provision prohibiting protests within 15 feet of moving objects (such as cars or people) created a floating buffer zone.
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Applying a test developed in Madsen, the Supreme Court examined whether the fixed and floating buffer zones were constitutional. The Court held that the fixed buffer zone did not burden any more speech than necessary to serve the government interests of ensuring public safety and order, promoting the free flow of traffic on streets and sidewalks, and protecting women’s freedom to seek abortions or other health-related services. But the Court struck down the floating buffer zone because that was over-broad and too difficult to enforce. The Court reasoned in part that “the 15-foot floating buffer zones would restrict the speech of those who simply line the sidewalk or curb in an effort to chant, shout or hold signs peacefully” and could not therefore be considering restricting no more speech than was necessary.
But it was a Colorado law that set the stage for the current showdown over abortion protests and buffer zones, resulting in a case the Roberts Court has now been asked to overrule. In 1993, the Colorado legislature passed a law that required any protesters to stay eight feet from anyone entering or leaving an abortion clinic, as long as the clinic visitor was within 100 feet of the entrance. In 1995, three anti-abortion activists challenged the law, claiming it violated their free-speech rights. Both a trial court and state appeals court upheld the statute.
After a series of procedural issues, the case went before the Supreme Court, which in 2000 upheld the law by a 6-3 vote. In the majority opinion, issued by Justice John Paul Stevens, the Court concluded that the law was not a speech regulation, but simply a “regulation of the places where some speech may occur.” Because the law applied to all demonstrators regardless of viewpoint it could not be considered “content-based” regulation. The majority also determined that the state’s interests in protecting access and privacy of patients and staff were unrelated to the suppression of certain types of speech, whether it be anti-abortion protests or other forms of political speech. States and municipalities have special government interests in certain areas, including schools, courthouses, polling places, private homes, and medical clinics, the Court said, and therefore is allowed to treat those spaces differently when it comes to regulating speech.
Not surprisingly, Justice Antonin Scalia wrote a scathing dissent in which he accused the majority of manipulating First Amendment constitutional doctrine to protect abortion rights and silence anti-abortion forces.
What is before us, after all, is a speech regulation directed against the opponents of abortion, and it therefore enjoys the benefit of the “ad hoc nullification machine” that the Court has set in motion to push aside whatever doctrines of constitutional law that stand in the way of that highly favored practice.
More troubling than Justice Scalia’s predictable disdain for laws protecting abortion patients and their providers was the dissent from Justice Anthony Kennedy who wrote that the decision “contradicts more than a half century of well-established First Amendment principles.” Kennedy said the Colorado statute was a content-based law that restricted a specific type of speech, anti-abortion speech. That’s important because in the case the Roberts Court will hear next term the protestors claim that the Massachusetts law is “inescapably viewpoint-based” and thus unconstitutional because it permits clinic agents to enter the specified “no-entry zones” with “impunity” and speak at will so long as they are “there on clinic business.” As such, the law permits speech that “will necessarily express the clinic’s view” that supports abortion care and access while excluding any speech that does not. And that, the protestors argue, violates the First Amendment.
Here, the protesters argue that, unlike the Colorado law, which broadly protects health care facilities and doesn’t allow any speech, the Massachusetts law:
…applies only at abortion clinics; permits speech by clinic agents while excluding speakers who advocate alternatives to abortion; and completely excludes disfavored speakers from otherwise public areas.
In that sense, they claim, because the law is narrower by applying specifically to abortion-related locations and speech, it is more of a problem than the blanket prohibition upheld in Hill.
This is a big case regarding the free speech rights afforded to abortion protesters, in part because the protestors have asked the Court to limit or overrule Hill altogether. And that matters, because the Court has obviously changed since the Hill decision. Justice O’Connor was replaced with the rabidly anti-abortion Antonin Scalia, and as has become a common theme under the current make-up of the Roberts Court, Justice Kennedy’s dissenting opinion in Hill suggests that those defending the law will have a difficult time finding a fifth vote in their favor. Specifically, Justice Kennedy explained in Hill that “Colorado’s scheme of disfavored-speech zones on public streets and sidewalks, and the Court’s opinion validating them, are antithetical to our entire First Amendment tradition.” Those defending the law will therefore have to show not just that the Massachusetts law complies with the general framework established in Hill, but also find some coalition of five justices willing to preserve that decision under the First Amendment. Given the zeal with which the Roberts Court has used the First Amendment to protect conservative religious rights at the expense of all others, this seems unlikely to happen.