Analysis Law and Policy

Will the Roberts Court Respect Abortion Providers’ and Patients’ Right To Be Left Alone?

Jessica Mason Pieklo

The Supreme Court will hear arguments in the constitutionality of a Massachusetts buffer zone law. Conservatives see it as a chance to pounce on the idea that abortion patients deserve to be left alone as they enter clinics.

For the first time in over a decade the Supreme Court will take a look at the issue of protests around abortion clinics when it hears arguments next week in McCullen v. Coakley, a case that challenges the constitutionality of a 2007 Massachusetts buffer zone law.

A lot has changed since the Supreme Court last took a look at the constitutionality of abortion clinic buffer zone laws. Between 2011 and 2013, more than 200 restrictions to abortion were enacted around the country, representing more than the total enacted in the entire previous decade. Religious conservatives have waged war on employment benefits, attacking the contraception mandate and crying “religious discrimination” in having to provide health benefits equally, while conservatives on the federal bench go along. And despite federal protections for clinics and patients, Dr. George Tiller was assassinated by an anti-choice extremist while those working to keep abortion access available in Kansas face continued harassment and threats of violence. Then, of course, there’s the composition of the Supreme Court and the absence of Justice Sandra Day O’Connor.

The last time the Supreme Court waded into the waters of abortion protesters, free speech, and government regulation was in the 2000 Hill v. Colorado case. The 6-3 decision upheld a 1993 Colorado law that restricted demonstrations around health-care facilities. The Colorado buffer zone law provides that within 100 feet of any facility entrance, protesters are prohibited from approaching within eight feet of a patient without their consent for the purpose of demonstrating at them.

Colorado passed its buffer zone law in response to anti-choice protesters in the area using demonstrations to block access to clinics and harass and confront patients and staff. Under the law, “demonstrating” included such activities as displaying a sign, leafleting, and, importantly, engaging in conversation with patients and staff.

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Anti-choice activists sued, arguing the buffer zone violated their First Amendment free speech rights. Attorneys for the State of Colorado defended the law, arguing it was a reasonable restriction on those rights given the history of confrontation by protesters and evidence that such confrontations adversely affect patient care. The Supreme Court agreed, voting 6 to 3 to uphold the state’s buffer zone law, but produced a murky opinion that has been the target of both anti-choice activists and First Amendment purists.

Restrictions on speech and speech activities like protesting are constitutional so long as they are content neutral, narrowly tailored to serve a significant government interest, and leave open ample channels for communication. In Hill v. Colorado, the majority ruled Colorado had a compelling interest in protecting its citizens from unwanted communication while not curtailing that communication entirely; although speakers have a right to persuade, the majority held, listeners also have a right to “be let alone.” Furthermore, the majority held, the restriction is content neutral because it applies to any message, regardless of the speaker. That means the buffer zone isn’t regulating speech, just one arena for that speech to take place.

Importantly though, the decision in Hill frames its analysis on the impact of protesters’ actions and harassment on patients. And as you can imagine, Justices Scalia and Thomas don’t like that framing at all.

Justice Scalia goes to great lengths in his dissenting opinion, which Justice Thomas joined, to detail the ways in which the majority got it wrong. According to Scalia, there is no way the law can be content neutral since it applies only to abortion clinics. Because only people who oppose abortion protest outside clinics, Justice Scalia reasoned, the law targets the protesters’ messages. Furthermore, even if the law were “content neutral” and didn’t single out abortion protest speech, the state has no compelling interest in protecting its citizens from unwanted speech, he concluded.

But Scalia went even further, accusing the majority of contorting First Amendment law because they don’t like anti-choice protesters. “There is apparently no end to the distortion of our First Amendment law that the Court is willing to endure in order to sustain this restriction upon the free speech of abortion opponents,” Scalia wrote.

“Does the deck seem stacked?” he continued. “You bet.”

Fast forward to the Roberts Court, where Justice Samuel Alito, one of the staunchest anti-choice activists on the bench, has replaced Justice Sandra Day O’Connor, who was among the majority in Hill. Factor in the increased hostility toward abortion rights and access from the federal bench generally, but especially when placed in opposition to the rights of abortion protesters and objectors, and a case that should be set up to reaffirm reasonable balances in the rights of patients and the rights of protesters looks a lot more tenuous.

If there’s a silver lining, though, it is in the facts and circumstances surrounding the Massachusetts buffer zone law. According to Martha Walz, president and CEO of Planned Parenthood League of Massachusetts, the law was passed in response to a “real and demonstrated need” for something to help curtail abusive clinic protests. As Walz explained to Rewire, during the 1980s and ’90s and prior to the passage of the law at issue, abortion providers responded to clinic and patient harassment and intimidation though a series of injunctions designed to block the worst offenders. But, much like the limitations of the federal Freedom of Access to Clinic Entrances (FACE) Act, that approach to harassment and violence just didn’t work. “Those remedies are after the fact,” Walz explained. “At that point the damage to access has been done. We needed something to prevent it from happening in the first place.”

The Massachusetts law establishes a fixed, 35-foot buffer zone during health center operating hours. It was passed after a previous buffer law proved insufficient. During the time the previous buffer zone law was on the books in Massachusetts, protesters persisted in their efforts to harass and intimidate women. Evidence submitted in support of their argument to uphold the law detailed how protesters dressed up as police officers in order to obtain patients’ and staff members’ personal identifying information, filmed and photographed patient and staff vehicles, screamed at them, and even touched their bodies.

Walz, who was a state representative and worked closely with local law enforcement to get the buffer zone law passed, described the current relationship between clinic and protesters under the regulation as “one of peaceful co-existence.”

“Law enforcement supports the buffer zones,” Walz said. “They love that it works. And the protesters, they respect it.” The law “strikes the right balance” between the free speech rights of protesters and the rights of patients and clinic workers to be left alone, she said.

In defense of the law, Planned Parenthood argues that like the buffer zone in Hill v. Colorado, the 35-foot buffer zone at issue here does not target any particular viewpoint, but is narrowly tailored to protect against the long-standing public safety problem outside reproductive health-care centers in Massachusetts. In fact, the zone is so narrowly tailored that what is at stake for protesters is a matter of seconds. “What we are talking about here is seven seconds,” Walz said. “That’s how long it takes to walk from the edge of the buffer zone to the clinic entrance. That’s all.”

But it was enough for anti-choice activists to challenge the law, so far unsuccessfully. The U.S. District Court for Massachusetts has twice upheld the constitutionality of the law, and the First Circuit Court of Appeals has also twice ruled that the Massachusetts buffer zone law is constitutional. The Supreme Court hears arguments in the case on Wednesday, January 15, with a decision expected sometime this summer.

Since passage of the Massachusetts law, two other states and municipalities across the country, including Portland, Maine, have enacted similar buffer zone laws. That means a broad ruling from the Court and striking the Massachusetts law could have wide-ranging, national implications. It could reach so far as the chambers of the Roberts Court, which narrowed its own protest buffer zone rule this summer after a federal court found an earlier version unconstitutional. Hopefully, the fact that the justices are “left alone” to deliberate in the coming months is not lost on at least a majority of justices.

News Law and Policy

Anti-Choice Group: End Clinic ‘Bubble Zones’ for Chicago Abortion Patients

Michelle D. Anderson

Chicago officials in October 2009 passed the "bubble zone" ordinance with nearly two-thirds of the city aldermen in support.

An anti-choice group has announced plans to file a lawsuit and launch a public protest over Chicago’s nearly seven-year-old “bubble zone” ordinance for patients seeking care at local abortion clinics.

The Pro-Life Action League, an anti-choice group based in Chicago, announced on its website that its lawyers at the Thomas More Society would file the lawsuit this week.

City officials in October 2009 passed the ordinance with nearly two-thirds of the city aldermen in support. The law makes it illegal to come within eight feet of someone walking toward an abortion clinic once that person is within 50 feet of the entrance, if the person did not give their consent.

Those found violating the ordinance could be fined up to $500.

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Harassment of people seeking abortion care has been well documented. A 2013 survey from the National Abortion Federation found that 92 percent of providers had a patient entering their facility express personal safety concerns.

The ordinance targets people seeking to pass a leaflet or handbill or engaging in “oral protest, education, or counseling with such other person in the public way.” The regulation bans the use of force, threat of force and physical obstruction to intentionally injure, intimidate or interfere any person entering or leaving any hospital, medical clinic or health-care facility.

The Pro-Life Action League lamented on its website that the law makes it difficult for anti-choice sidewalk counselors “to reach abortion-bound mothers.” The group suggested that lawmakers created the ordinance to create confusion and that police have repeatedly violated counselors’ First Amendment rights.

“Chicago police have been misapplying it from Day One, and it’s caused endless problems for our faithful sidewalk counselors,” the group said.

The League said it would protest and hold a press conference outside of the Planned Parenthood clinic in the city’s Old Town neighborhood.

Julie Lynn, a Planned Parenthood of Illinois spokesperson, told Rewire in an email that the health-care provider is preparing for the protest.

“We plan to have volunteer escorts at the health center to make sure all patients have safe access to the entrance,” Lynn said.

The anti-choice group has suggested that its lawsuit would be successful because of a 2014 U.S. Supreme Court decision that ruled a similar law in Massachusetts unconstitutional.

Pam Sutherland, vice president of public policy and education for Planned Parenthood of Illinois, told the Chicago Tribune back then that the health-care provider expected the city’s bubble zone to be challenged following the 2014 decision.

But in an effort to avoid legal challenges, Chicago city officials had based its bubble zone law on a Colorado law that created an eight-foot no-approach zone within 100 feet of all health-care facilities, according to the Tribune. Sidewalk counselor Leila Hill and others challenged that Colorado law, but the U.S. Supreme Court upheld it in 2000.

Analysis Law and Policy

Federal Court Says Trans Worker Can Be Fired Based on Owner’s Religious Beliefs

Jessica Mason Pieklo

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

When the U.S. Supreme Court ruled in 2014 in Burwell v. Hobby Lobby that the owners of secular for-profit businesses could challenge laws they believed infringed on their religious liberties, civil rights advocates warned that the decision was just the start of a new wave of litigation. On Thursday, those predictions came true: A federal district judge in Michigan ruled that a funeral home owner could fire a transgender worker simply for being transgender.

The language of the opinion is sweeping, even if the immediate effect of the decision is limited to the worker, Aimee Stephens, and her boss. And that has some court-watchers concerned.

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

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According to court documents, Stephens, an employee at Detroit’s R.G. & G.R. Funeral Homes, gave her boss—the business’ owner—a letter in 2013 explaining she was undergoing a gender transition. As part of her transition, she told her employer that she would soon start to present as a woman, including dressing in appropriate business attire at work that was consistent both with her identity and the company’s sex-segregated dress code policy.

Two weeks later, Stephens was fired after being told by her boss that what she was “proposing to do” was unacceptable and offensive to his religious beliefs.

In September 2014, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Stephens, arguing the funeral home had violated Title VII of the federal Civil Rights Act, which prohibits employment discrimination. According to the EEOC, Stephens was unlawfully fired in violation of Title VII “because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.”

Title VII of the Civil Rights Act allows those employees who have been discriminated against in the workplace to collect money, known as civil damages. Those damages usually come in the form of lost wages, back pay, and funds to make up for—to some degree—the abuse the employee faced on the job. They are also designed to make employers more vigilant about their workplace culture. Losing an employment discrimination case for an employer can be expensive.

But attorneys representing Stephens’ employer argued that the Religious Freedom Restoration Act (RFRA) protected their client from legal liability for firing Stephens. On Thursday, a federal court agreed. It said that paying such damages for unlawfully discriminating against an employee could amount to a substantial burden on an employer’s religious beliefs. 

According to the court, despite the fact that Stephens’ boss admitted he fired her for transitioning, and despite the fact that the court found this admission to be direct evidence of employment discrimination, RFRA can be a defense against that direct discrimination. To use that defense, the court concluded, all the funeral home owner had to do was assert that his religious beliefs embraced LGBTQ discrimination. The funeral home had “met its initial burden of showing that enforcement of Title VII, and the body of sex-stereotyping case law that has developed under it, would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs,” the court wrote.

In other words, Hobby Lobby provides employers a defense to discriminating against LGBTQ people on the basis of religious beliefs.

“The RFRA analysis is extremely troubling, and the implications of it [are] as well,” said Knight. “I believe this is the first case applying RFRA to a Title VII claim with respect to nonministerial employees.”

If the scope of the opinion were broader, Knight continued, “this would allow [employers in general] to evade and refuse to comply with uniform nondiscrimination law because of their religious views.”

This, Knight said, is what advocates were afraid of in the wake of Hobby Lobby: “It is the concern raised by all of the liberal justices in the dissent in Hobby Lobby, and it is what the majority in Hobby Lobby said the decision did not mean. [That majority] said it did not mean the end of enforcement of nondiscrimination laws.”

And yet that is exactly what we are seeing in this decision, Knight said.

According to court documents, Stephens’ boss has been a Christian for more than 65 years and testified that he believes “the Bible teaches that God creates people male or female,” that “the Bible teaches that a person’s sex is an immutable God-given gift, and that people should not deny or attempt to change their sex.” For Stephens’ former boss, Stephens’ transition to a woman was “denying” her sex. Stephens had to be fired, her boss testified, so that he would not be directly complicit in supporting the idea that “sex is a changeable social construct rather than an immutable God-given gift.”

If the “complicit in denying God’s will” sounds familiar, it should. It has been the exact argument used by businesses challenging the birth control benefit of the Affordable Care Act. Those business owners believe contraception is contrary to God’s will and that complying with federal law, which says birth control should be treated in insurance policies as any other preventive service, makes them complicit in sin. Thursday’s decision cites Hobby Lobby directly to support the court’s conclusion that complying with federal nondiscrimination law can be avoided by asserting a religious objection.

Think of the implications, should other courts follow this lead. Conservatives have, in the past, launched religious objections to child labor laws, the minimum wage, interracial marriage, and renting housing to single parents—to name a few. Those early legal challenges were unsuccessful, in part because they were based on constitutional claims. Hobby Lobby changed all that, opening the door for religious conservatives to launch all kinds of protests against laws they disagree with.

And though the complaint may be framed as religious objections to birth control, to LGBTQ people generally, and whatever other social issue that rankles conservatives, these cases are so much more than that. They are about corporate interests trying to evade regulations that both advance social equity and punish financially those businesses that refuse to follow the law. Thursday’s opinion represents the next, troubling evolution of that litigation.

CORRECTION: This article has been updated to clarify John Knight’s position with the American Civil Liberties Union of Illinois.

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