On July 30, Massachusetts Gov. Deval Patrick signed a new buffer zone bill into law. Called an Act to Promote Public Safety and Protect Access to Reproductive Health Care Facilities, the law is the state’s response to June’s ruling by the U.S. Supreme Court that the 35-foot buffer zone law in Massachusetts violated the First Amendment.
As reflected by the new Massachusetts law, the McCullen v. Coakley ruling upheld the constitutionality of buffer zones around clinics that perform abortion. At issue was the fact that the 35-foot zone was not “narrowly tailored” enough to balance the free speech rights of abortion clinic protesters and the right for women to enter health-care facilities safely.
In other words, the Massachusetts zone was too big. In order to pass constitutional muster, each buffer zone must be right-sized.
The problem is that there is no simple formula to determine what that means for each state or city. Factors such as the distribution of private and public space, the architectural layout of the facilities, and the specific history of violence and harassment at a particular facility can all play into defining the exact proper balance of interests.
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Since the ruling, protests in some cities have become chaotic as some city officials voluntarily stopped enforcing their buffer zones. In San Francisco, for example, protesters reportedly took it upon themselves to begin ignoring the zone, and officials, “according to insiders,” are concerned “that defending San Francisco’s 25-foot zone could invite a suit by antiabortion activists —which could leave the city on the hook for big legal expenses if they win,” the San Francisco Chronicle reported.
Meanwhile, the legal fate of the remaining buffer zones—laws are on the books in 16 cities and three states—across the country remain “in limbo.”
The Alliance Defending Freedom, which represented the plaintiffs in McCullen, is gearing up to challenge the remaining zones. With just over $40 million in assets, the rapidly expanding Arizona-based nonprofit has the resources to work methodically, forcing every state, city, and township with a buffer zone to defend, or re-defend, it in court.
“We are looking into other areas that have such laws and ordinances, and, yes, we will seek to bring them in line with the Constitution and [the] ruling,” Kerri Kupec, spokesperson for Alliance Defending Freedom, said on the day of the McCullen ruling.
Currently, Pennsylvania has active buffer zones in effect in Pittsburgh and Harrisburg.
Pittsburgh enacted the Medical Safety Zone Ordinance in 2005, which established both a fixed 15-foot buffer zone and a floating “bubble” zone. The bubble zone rule meant that people outside the clinic were protected by a roving 8-foot buffer zone while within 100 feet of the clinic.
When the Alliance Defending Freedom challenged the ordinance in court in 2009, the court ruled that Pittsburgh could enact either a fixed or a floating buffer zone, but not both at the same time.
Now the Alliance Defending Freedom intends to return to court over the Pittsburgh zone.
The Alliance — which seeks to make the legal system amenable to “religious liberty, the sanctity of life and marriage and family,” according to its website — is keen on revisiting other buffer zone laws, including in Pittsburgh, Mr. Cortman said: “Where we have clients, we will relitigate.”
Sue Frietsche, an attorney with the Women’s Law Project, explained to the Pittsburgh CityPaper, that the Supreme Court ruling does not mean that the Pittsburgh buffer zone is illegal.
“The tricky part is figuring out what part of the law was most troubling to the justices,” Frietsche says. “Was it because it had statewide application, instead of being a municipal ordinance? [Roberts’ opinion notes that much of the dispute about clinic access centered on a single, heavily protested facility in Boston.] Because it had a 35-foot buffer instead of a 15-foot radius? There are a number of ways in which the Massachusetts law was broader.”
A representative of Pittsburgh Mayor Bill Peduto’s office stated that the Pittsburgh law was sufficiently “narrowly tailored” to pass the level of scrutiny established in the McCullen ruling.
From the Pittsburgh Post-Gazette:
“The decision is going to require some careful review, but it appears that Pittsburgh’s law is narrowly tailored enough to stay in effect,” said Tim McNulty, spokesman for Mayor Bill Peduto, who voted for the law as a city councilman in 2005. “We believe in the ordinance. We believe that it does balance the relevant concerns. More importantly, so does the federal court.”
Harrisburg, the state capital, created a 20-foot buffer zone in 2012, in response to protesters that reportedly “harassed patients and staff outside the Second Street facility” after the clinic began offering medical abortions, resulting in at least six calls to the police. Geoffrey Knight, planning director of Harrisburg, told Rewire that he has not been asked to review the city’s buffer zone.
Philadelphia, despite the presence of reproductive health facilities that regularly draw protesters, has never had a buffer zone.
Sen. Larry Farnese, a Philadelphia Democrat and former clinic escort, set out to fix that. Earlier this year, Farnese introduced SB 1208. Known as the Interference With Access to Health Care Facilities Act, SB 1208 is part of the Women’s Health Agenda, a package of women’s equality bills drafted by progressive state legislators in response to the onslaught of abortion restrictions passed in states nationwide in recent years. It will establish 15-foot buffer zones around all health facilities in Pennsylvania.
In January, Sen. Farnese told Rewire that his experience with aggressive protesters while volunteering as a clinic escort at the Philadelphia Women’s Center made him determined to see this bill into law. Nonetheless, it has sat in the Public Health and Welfare Committee since January. A spokeperson for his office told Rewire that the bill may have stalled, but the effort was not dead.
“The senator does intend to keep moving forward with this issue,” Farnese’s chief of staff Tony Mannino told Rewire. “I think that we’ll have to … take a look at it, and see if it can be retooled in a way that’s consistent with the Supreme Court decision.”
More than 90 percent of “abortion providers had patients entering their facility express concerns about their personal safety,” according to a survey conducted by the National Association of Abortion Providers.
Buffer zones don’t just protect patients, though; they protect providers too.
“[Providers] are acutely aware that other providers have been murdered at work by protesters who were able to get too close to clinic workers,” Cohen told Rewire earlier this year. “Buffer zones don’t guarantee that providers won’t be harmed, but they undoubtedly help.”
Disclaimer: Tara Murtha consults with the Women’s Law Project, a public interest law firm that represents some abortion providers in Pennsylvania.