You might have expected large crowds and loud protests this morning at the Supreme Court, which heard oral argument in McCullen v. Coakley, a case dealing with the intersection of abortion and free speech. (I previewed the case in Plain English yesterday.) But less than an hour before the argument began, the reporters and cameramen staking out the Court far outnumbered the protesters, a lone handful of abortion-rights supporters. The atmosphere inside turned out to be fairly subdued as well, lacking the fireworks that sometimes accompany high-profile cases. Indeed, Chief Justice John Roberts, who is normally an active participant, was uncharacteristically silent throughout the oral argument. Although that silence made it harder to handicap the oral argument, it still seems unlikely that Massachusetts will find five votes to uphold its law, which creates a thirty-five-foot buffer zone around abortion clinics that abortion opponents (among others) cannot enter. The bigger question is whether the Court’s five more conservative Justices will broadly strike down such measures, or whether a compromise solution that would permit a smaller buffer zone might be in the works. Let’s talk about today’s argument in Plain English.
First up today was Mark Rienzi, representing Eleanor McCullen and the other anti-abortion activists challenging the state’s law. Rienzi began by emphasizing that the law applies to his clients every hour of every day that the clinics are open. The law, he argued, is not “narrowly tailored” – that is, drafted so that it accomplishes its objective without unnecessarily sweeping in too much other conduct – because it applies even when there are no crowds that might make it difficult to access a particular clinic. And although the state argues that the law is necessary to allow women to enter the clinics, Rienzi told the Justices that McCullen is sometimes alone when she arrives at her local clinic, each Tuesday morning, to try to speak to women considering abortion.
But Justice Ruth Bader Ginsburg, who in 2000 joined the majority in Hill v. Colorado, upholding a Colorado law that created a different “buffer zone” around health care facilities there, countered that clinics in Massachusetts have a “considerable history of skirmishes”; because police have no way of knowing in advance who will or won’t behave, the law is needed to head off the conflicts. Questions from Justices Sonia Sotomayor, Elena Kagan, and Stephen Breyer all followed. These were interspersed with the occasional softball from Justice Antonin Scalia, who (for example) asked Rienzi whether the state had prosecuted anyone for obstructing access to the clinics, a point that would support Rienzi’s argument that the state had other ways to deal with crowds at the clinics but had simply declined to use those tools. But Kagan then responded that the problem of obstructed access was a hard one to address through prosecutions, because the state would have to show that the defendant intended to violate the law. Sometimes, she observed, the problem is bad actors at the clinics, but sometimes the problem is just a lot of people, even if they are all behaving themselves. And Breyer then suggested that the Massachusetts law is more restrictive than the law at issue in Hill for a sensible reason – that the Massachusetts legislature had concluded that an earlier law (modeled on the one in Hill) just wasn’t working.
If Rienzi’s first twenty-five minutes or so at the lectern went more or less as expected, the same was true during the first several minutes for Jennifer Miller, representing Massachusetts. Miller began by telling the Court that protesters can and do have an opportunity to protest abortion in public spaces, just outside the clinics. Scalia quickly objected, however, to Miller’s characterization of the challengers as “protesters,” asserting that the petitioners in this case “don’t want to protest . . . they want to talk to women about abortion.” If this case were only about protesting, he continued, a thirty-five-foot buffer zone “might not be so bad.” Later on, in response to Miller’s assertion that the legislature had based the size of the buffer zone on evidence showing “pro-choice advocates swearing and screaming at pro-life advocates,” he suggested that such a problem could be better addressed through a law that prohibited swearing and screaming – but not all speech – within thirty-five feet of the clinics.
Justice Anthony Kennedy, who dissented from the Court’s decision in Hill fourteen years ago but now may have a working majority of five Justices in his favor, also voiced his concerns, asking Miller to address the hypothetical case of an elderly woman who had been very successful in counseling would-be clinic patients before the law went into effect, but could no longer talk to any pregnant women once the law went into effect. Kennedy seemed almost incredulous at Miller’s response that the elderly woman would have no guarantee of a right to quietly converse on an issue of public importance within the buffer zone. But what Miller and Court watchers might not have anticipated were the qualms expressed by Kagan – whose vote the state would almost certainly need to prevail – about the size of the buffer zone; among other things, Kagan told Miller that she was “a little hung up on why you need so much space.” And shortly before Miller sat down, Sotomayor asked her (seemingly in an effort to be helpful) about the extent of the problems that prompted the legislature to pass the law at issue in the first place. Miller answered that, in a survey of the ten clinics in the state, eight had reported problems, but two had not – a response that ironically may have provided further ammunition to the Justices who questioned the need for a one-size-fits-all approach to the problem.
How will the Court ultimately rule in McCullen? Although the Chief Justice failed to tip his hand, it’s hard to imagine a scenario in which he would vote to uphold the law, and nothing that Justice Samuel Alito said today would have provided any hope to the state. So the five conservative Justices may well be ready to strike down the law because it prohibits too much speech, such as the peaceful speech in which Eleanor McCullen wants to engage. Will they leave the state any leeway – for example, to impose a smaller buffer zone or to prohibit, at a minimum, conduct that blocks access to the clinic? Stay tuned. We’ll have a report on the decision when it is issued later this year, in Plain English.