One of the things observers were interested in learning when the Court handed down its decision today in McCullen v. Coakley, is whether the Court’s 2000 decision in Hill v. Colorado would be overruled. In Hill, the Court upheld, by a six-to-three vote, a Colorado law that generally forbade approaching within eight feet of another person within one hundred feet of abortion facilities. Justices Scalia, Kennedy, and Thomas vigorously dissented. And in the intervening years, four of the Justices in the Hill majority have retired or died (Chief Justice Rehnquist, and Justices Stevens, O’Connor, and Souter). Would the new Chief Justice and Justice Alito take a fundamentally different view? This case presented them with the option, as one of the questions upon which the Court granted certiorari was whether Hill should be overruled.
In today’s decision, the Court holds unconstitutional the Massachusetts law establishing a thirty-five-foot fixed buffer zone around abortion clinics in the state. But did it, in the process, overrule Hill? Certainly, the majority opinion by the Chief Justice does not do so expressly (in contrast with Justice Scalia’s dissent, joined by Justices Kennedy and Thomas, which overtly calls for Hill to be overruled). Indeed, it is notable that outside of a brief mention in describing the background of the case (noting that Massachusetts had originally enacted a narrower buffer-zone provision modeled on the statute upheld in Hill), the majority opinion makes no mention of Hill at all.
But perhaps that is a signal. Did the Chief Justice effectively overrule Hill or its result as a practical matter, without saying so?
The answer is unclear. Much of the decision today tracks Hill’s reasoning. The majority concludes that the Massachusetts law, although targeting abortion clinic protests, is content- and view-point neutral, and therefore not subject to strict scrutiny under the First Amendment. The Court in Hill reached the same conclusion about the buffer zones in Colorado. That conclusion was vigorously contested by the dissent in both Hill and McCullen today. So that much of Hill survives.
The Chief Justice then goes on to apply to lesser (but still substantial) scrutiny reserved for neutral laws restricting the time, place, and manner of speech, as did the Court in Hill. But while Justice Stevens and his majority found that the buffer zone in Hill was narrowly tailored, the Chief Justice’s majority opinion today finds that Massachusetts’s law does not.
The question is whether the reasons the majority gives today would effectively render buffer zones like Colorado’s unconstitutional, despite the result in Hill. There’s a good argument that they would.
To be sure, there is one big difference between the laws in the two cases: Hill involved an eight-foot floating buffer zone around individuals within a hundred feet of abortion clinics, while this case involved a thirty-five-foot fixed buffer zone. One might think that the sheer size difference could be determinative – one can still talk (albeit loudly) to someone eight feet away, and offer her literature; the decision today noted that this is much harder from the distance of thirty-five feet.
But very little of the Court’s narrow tailoring rationale today turned on this difference in size. Specifically, the Court did not hold that Massachusetts could satisfy its interests with a smaller buffer zone – for example, it did not suggest that the state could simply copy Colorado’s law. Instead, the Court pointed to a variety of measures having nothing to do with buffers that, the majority believed, would be adequate to protect patients and keep sidewalks clear. It point out, for example, that the state can prosecute anyone who threatens patients or obstructs clinics. It can have rules against blocking driveways and allow the police to move people along (and arrest them if they won’t) when there are congestion problems in front of particular clinics. If those problems persist, the state can authorize courts to issue clinic-specific injunctions.
It would seem that many, if not all, of the same things could have been said in Hill. Certainly, they will be said by challengers in future cases contesting buffer zones in other states.
If that’s right, why would Justices like Ginsburg and Breyer – who were in the majority in Hill – join an opinion laying the groundwork for its practical demise? It may be that they recognized that there are no longer five votes to permit buffer zones, and thought it more important to preserve Hill’s standard of review (i.e., avoiding strict scrutiny of measures restricting abortion protestors’ activities).