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.
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.