In 2007, Massachusetts passed a law that makes it a crime to stand on a public road or sidewalk within thirty-five feet of any abortion clinic in the state. Yesterday the Supreme Court struck down the Massachusetts “buffer zone,” siding with a group of abortion opponents who argued that the law was unconstitutional because it prevented them from being able to counsel and offer assistance to women entering the clinics. But (much like yesterday’s decision in the recess appointments case, which I discussed in Plain English here), although all nine Justices agreed that the Massachusetts law cannot stand, there was no consensus on the reasoning that they used to reach that result. Let’s talk about the decision in McCullen v. Coakley in Plain English.
Although we often think of Justice Anthony Kennedy as the pivotal vote on the Court in high-profile cases, yesterday it was Chief Justice John Roberts who played that role, writing an opinion that had the support of the four more liberal Justices — Ginsburg, Breyer, Sotomayor, and Kagan. Roberts began by emphasizing that public streets and sidewalks have historically had a special significance, for purposes of the First Amendment, as a place for public discussion and debate. They are, the Court observed, one of the few places left where you can run into speech that you might not otherwise hear, and might not want to hear. Given that special significance, the Court continued, the government’s power to regulate the content of speech on streets and sidewalks is very limited.
But with the “buffer zone” law, the Court reasoned, Massachusetts isn’t regulating content – that is, the law doesn’t target what people are saying. This is so even if the law only applies at abortion clinics – which, the plaintiffs had argued, meant that all of the speech that it regulated was speech about abortion. A violation of the law doesn’t hinge on what you say, the Court explained; all that matters is where you say it. If you are in the buffer zone, you can violate the law without saying a word. The Court acknowledged that Massachusetts couldn’t pass this kind of law just because anti-abortion protesters or counselors made other people uncomfortable, but it underscored that the concerns that prompted the legislature to pass this law – trying to keep access to clinics open and keep the area around clinics safe – aren’t aimed at what people are saying. The Court also found that, although the law does not apply to clinic employees, that doesn’t mean that it discriminates based on who is speaking. In the Court’s view, the exemption simply allows employees – not only the escorts who walk women into the clinic but also the guy who shovels the sidewalk in front of the clinic – to do their jobs.
Although the Supreme Court’s caselaw puts fairly tight limits on the government’s ability to regulate the content of speech (limits that, the Court concluded, do not apply to the Massachusetts law), the government has more leeway to regulate other aspects of speech: where and when you can speak and how. For these kinds of regulations, courts look at whether the law is “narrowly tailored” – that is, does it restrict more speech than necessary to advance the government’s goals? The Massachusetts “buffer zone” law, the Court determined, fails even under this more lenient test. On the one hand, the Court suggested, the burden that the law imposes on the plaintiffs in this case is significant: talking to someone on the sidewalk and handing her a pamphlet in the hope of convincing her not to have an abortion is exactly the kind of speech that the First Amendment protects. And it doesn’t help the state’s cause that the plaintiffs can still stand outside the buffer zones and chant or hold signs, because they are instead trying to counsel people.
On the other hand, the Court noted, the law does restrict more speech than it needs to. No other state uses a buffer zone like this one, which suggests that there are alternatives that Massachusetts has overlooked. First and foremost, if the goal is to protect patients and more broadly maintain order outside clinics (which, the Court agreed, is a legitimate interest), there is a separate provision of the law that specifically addresses misconduct outside clinics and imposes criminal penalties for violations. Or the state could enact other laws to deal with it. Either option would allow the state to target particular individuals who block access to clinics or harass women, without penalizing people like the plaintiffs who say that they are just trying to talk to women. The Court also expressed skepticism that access to and public safety around clinics are actually problems anywhere other than one specific clinic: “For a problem shown to arise only once a week in one city at one clinic, creating 35-foot buffer zones at every clinic across” the state “is hardly a narrowly tailored solution.”
Nor, the Court continued, can the state justify the restrictions by saying that it tried other options but they didn’t work; the five Justices pointedly observed that they saw no sign that the state had tried to rely on those other options to prosecute anyone in the last seventeen years. And even if the fixed buffer zone was easier for police than some of the other options, the Court was unmoved: “[T]he prime objective of the First Amendment is not efficiency.”
Justices Scalia, Kennedy, Thomas, and Alito all agreed with their five colleagues that the Massachusetts law violates the First Amendment. But unlike the majority, Scalia (writing for himself and Justices Kennedy and Thomas) did regard the law as targeting speech on abortion, so he would subject it and similar laws to a more stringent test. And even more importantly, Scalia would overrule a 2000 decision by the Court that upheld a different buffer zone in Colorado. “Protecting people from speech they do not want to hear,” he made clear, “is not a function that the First Amendment allows the government to undertake in public streets and sidewalks.”
The end result in this case was not much of a surprise; many people (including me) had predicted after the oral argument that the law was likely to fall. But the vote was perhaps more unexpected; many abortion rights supporters probably would not have anticipated that some of the more reliably liberal Justices like Ginsburg and Sotomayor would join the Chief Justice and vote to strike down the law. One possibility may be – as Kevin Russell suggested in his post yesterday – that the more liberal Justices may have recognized that there were not enough votes for the Massachusetts law. And so they may have been willing to sacrifice this law to ensure that, if challenged, other buffer zones are subjected to (and may be able to survive) the same, less stringent test that the Court used in the case.
The case is also interesting because of what it may signal for the challenge to the Affordable Care Act’s contraception mandate, in which we are still waiting on the Court’s decision. Although the precise issues before the Court are different, both involve the intersection of the First Amendment (the McCullen plaintiffs’ desire to counsel women who might be seeking abortion and the Hobby Lobby families’ firm opposition to providing their female employees with birth control) and women’s reproductive rights. If the oral argument in Hobby Lobby is any indicator, don’t look for the same kind of unanimity, even with regard to just the result, if (as we expect) the Court issues its decision on Monday. But whether the vote is nine-zero, five-four, or something in between, we will be back to cover it in Plain English.