Argument preview: “Buffer zones” and free speech
At 10 a.m. on Wednesday, the Supreme Court will hold one hour of oral argument on the power of government to limit protests and demonstrations outside abortion clinics. Arguing for the challengers to a Massachusetts “buffer zone” law in the case of McCullen v. Coakley will be Mark L. Rienzi of Washington, D.C., a law professor at Catholic University. Defending the state law will be Jennifer Grace Miller of Boston, an assistant state attorney general, with twenty minutes of time. Deputy U.S. Solicitor General Ian H. Gershengorn, representing the federal government as an amicus supporting the state, will have ten minutes.
Two noteworthy changes have occurred at the Supreme Court since the last full-scale ruling on anti-abortion demonstrations outside clinics: four of the Justices who were in the six-to-three majority in that case thirteen years ago have left the Court and been replaced, and the Court’s support of First Amendment rights has steadily expanded. The question now is whether those two changes will merge to make a difference on the issue.
At the center of the case is, in fact, a Massachusetts law that the Court has seen before. But, at that time, it refused — with no recorded dissents — to hear a challenge to it. Most of the changes in the Court’s membership had occurred by then: that is, March 2010.
But that challenge was to the Massachusetts law as it was written (a “facial challenge”), not as it would apply in an actual situation (an “as-applied challenge). This is not a Court that has much sympathy for facial challenges to laws; it prefers to take up challenges after a law’s actual impact can be assessed. That may well have explained the denial of review nearly four years ago.
The Massachusetts case, and the same law, are back before the Court, after the Justices voted in June to hear it. This time, lower courts rejected the as-applied challenge. (The law was passed by the state legislature in 2007, and anti-abortion protesters went to court in 2008 with both facial and as-applied challenges. The lower courts split the challenges for separate review.)
The protesters, who have demonstrated outside abortion clinics in Boston, Springfield, and Worcester, have argued all along that the law singles them out and totally excludes them from the area near clinics, while allowing those who take part in performing abortions or are sympathetic to abortions to be in that zone.
If the Court were to rule that its last major ruling on the issue — the six-to-three decision in 2000 in Hill v. Colorado — allows such a law, then that decision should either be narrowed or overruled altogether, the protesters said in their new petition. (The challengers had made that point in their prior appeal to the Justices.)
The Hill decision involved a Colorado “no-approach zone” law. That law set up a “floating buffer zone” within one hundred feet of a facility providing health care services. Within that zone, the law made it illegal for anyone to go closer than eight feet from a person in the area, without that person’s consent, to hand out a leaflet, display a sign, or engage in oral protest, education, or counseling.
In 2000, the Massachusetts legislature passed a law similar to Colorado’s. Seven years later, however, the legislature concluded that the law was not effective enough in protecting abortion clinics. So it enacted a law making it illegal for anyone to “knowingly enter or remain on a public way or sidewalk adjacent to a reproductive health facility, within a buffer zone that extends outward 35 feet of any entrance, exit or driveway.”
Exempted from that ban are those entering or leaving the facility, employees or agents of the facility doing their normal work or routines, law enforcement and emergency personnel carrying out regular duties, and those using the public sidewalk or street next to the facility if they are simply on their way somewhere else.
After the second decision by the U.S. Court of Appeals for the First Circuit, against the as-applied challenge, seven demonstrators (five of whom had been involved in the earlier petition to the Supreme Court) then asked the Justices to review their case.
The state opposed Supreme Court review, but the Justices granted the case on June 24. As usual, it did not give a reason why this case was being heard, when the one in 2010 had been turned aside.
In the protesters’ brief on their merits, they argued that the Massachusetts law is explicitly aimed at preventing more conduct that the Colorado law had, and that it failed all of the tests that the Colorado law had passed and that saved it before the Court: the 2007 law is not neutral, it is aimed only at abortion clinics, it affects speech on the single issue of abortion, it targets those who oppose abortion but allows those who support it to be in the zone and enter and leave the facility unchecked, its exclusion goes beyond any need to protect individuals because it is more than a no-approach measure, and it does not leave any alternative channels for protesters to get their message across to women entering the clinic. But if the law would survive on the strength of the Hill precedent, this brief argued, that ruling “should be substantially clarified, narrowed, or overruled.”
State officials, in their merits brief, argued that two decades of experience in Massachusetts had shown that the areas next to clinic doors and driveways have been congested, “and even unsafe.” The buffer zone, the brief said, is open only to regular pedestrian traffic, and the pedestrians must keep moving.
Given the experience those officials said Massachusetts had had, they said it had become clear to the legislature that a fixed buffer zone was the only way to protect access to health care in the facilities. And, the brief argued that the protesters can still make themselves seen and heard by those entering the clinic, but not by taking their places “right in the doors.”
The case is sufficiently different from Hill v. Colorado, according to the state’s brief, that it does not present a proper occasion to reconsider that decision.
The federal government has entered the case to support the state, relying on the federal government’s interest in protecting a 1994 federal law that bars force, obstruction, interference, and intimidation outside abortion clinics. When Massachusetts strengthened its buffer-zone law, the federal brief said, it did so in the wake of evidence of “the persistence of a disorderly and threatening climate at facility entrances.”
The protesters have drawn a wide array of support, well beyond the usual conservative legal advocacy groups and anti-abortion organizations. Support also comes from labor union organizations seeking to protect the right to picket, religious organizations interested in opportunities to proselytize, and a dozen states.
The American Civil Liberties Union and its Massachusetts affiliate entered the case, but supporting neither side. Instead, they urged the Court to send the case back to lower courts for a fuller exploration about whether protesters have adequate alternative means of getting out their message at some of the Massachusetts clinics.
The state is supported not only by the Justice Department, but by a usual array of abortion rights groups and medical organizations seeking secure facilities for health care. Also on that side are an array of religious organizations, several civil rights groups, municipal government associations, and thirteen states plus the Virgin Islands.
The Supreme Court’s deepening sympathy for First Amendment rights — from video games, to funeral protests, to violence-based films, to false claims by political candidates, to big spenders’ campaign advertisements — is a trend now so well established that those who believe their right of expression is threatened have a much better chance not only of getting the Court to hear them, but also to win in the end.
The Massachusetts anti-abortion protesters clearly are relying upon that trend, and probably are entitled to be somewhat optimistic with the Court agreeing to hear them. On the other hand, the Court has now retreated from the general (though not universal) support for women’s freedom to pursue their own medical options, including abortion.
It would appear, then, that the Court will have to make up its mind whether this new buffer-zone case does involve a genuine threat of suppression of unpopular views, or rather poses a genuine risk to the safety of those who work in abortion clinics, or those who go there as patients. An important factor in this choice will be how seriously the Court takes the assertion, by the state and the Justice Department, that the environment around Massachusetts clinic is one of dangerous hostility.
There is enough difference between the Massachusetts law and the one at issue in Hill v. Colorado that that precedent does not appear to be in real jeopardy. However, the three dissenters from the Hill decision — Justices Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas — remain on the Court and could provide a nucleus to support a new look at that decision. Only two Justices remain from the majority there: Stephen G. Breyer and Ruth Bader Ginsburg.