What Today’s Supreme Court Ruling Means for Abortion Clinics

The Supreme Court struck down a Massachusetts law allowing a protest “buffer zone” around abortion clinics.

Anti-abortion protestor Eleanor McCullen (L) of Newton, Massachusetts, and her attorney, Philip Moran (R) speak outside the US Supreme Court following oral arguments in the case of McCullen v. Coakley, dealing with a Massachusetts law imposing a 35-foot buffer zone around abortion clinics for demonstrations and protests, in Washington, DC, January 15, 2014. McCullen argues that the 2007 state law restricts her free speech rights under the First Amendment, while the state and Planned Parenthood argue they provide protection for individuals going to the clinics and provide a way to maintain public safety. AFP PHOTO / Saul LOEB 
National Journal
Sophie Novack
June 26, 2014, 6:36 a.m.

Free speech has won out over abor­tion-clin­ic safety in the Su­preme Court.

In a un­an­im­ous de­cision Thursday, the justices over­turned a Mas­sachu­setts law re­quir­ing a 35-foot “buf­fer zone” for pro­test­ers out­side abor­tion clin­ics in the state. Chief Justice Roberts wrote the de­cision.

The rul­ing could put sim­il­ar clin­ic pro­tec­tions in oth­er areas on shaky ground. 

The case, Mc­Cul­len v. Coakley, asked the Court to weigh First Amend­ment claims from the an­ti­abor­tion side against pub­lic-safety claims from the abor­tion-rights side. The Court on Thursday de­term­ined that the Mas­sachu­setts law vi­ol­ates the First Amend­ment, largely be­cause the buf­fer zones in­clude pub­lic areas such as side­walks. The Court calls for more tar­geted re­sponses to in­cid­ents; while states can ad­dress spe­cif­ic cases of ob­struc­tion, broad­er re­stric­tions are not per­mit­ted.   

The lead plaintiff, Elean­or Mc­Cul­len, is a 77-year-old grand­moth­er who has spent 13 years and more than $50,000 of her own money “coun­sel­ing” preg­nant wo­men out­side Bo­ston clin­ics not to get abor­tions. She ar­gues that the buf­fer-zone law in­ter­feres with her right to de­liv­er her mes­sage and un­fairly dis­crim­in­ates against an­ti­abor­tion ad­voc­ates, be­cause clin­ic work­ers are per­mit­ted to cross the di­vid­ing line and enter the fa­cil­it­ies with the pa­tients.

However, sup­port­ers of the law ar­gue that Mc­Cul­len’s story is an at­tempt to soften the face of abor­tion pro­test­ers from what they say is a long his­tory of vi­ol­ence and in­tim­id­a­tion out­side re­pro­duct­ive health clin­ics.

The Na­tion­al Abor­tion Fed­er­a­tion, a pro­fes­sion­al as­so­ci­ation of abor­tion pro­viders in North Amer­ica, has tracked thou­sands of in­cid­ences of vi­ol­ence out­side abor­tion fa­cil­it­ies since 1977. The or­gan­iz­a­tion says buf­fer-zone laws have dra­mat­ic­ally cut back on such in­cid­ents — a 2013 NAF sur­vey found that 51 per­cent of fa­cil­it­ies with buf­fer zones re­por­ted a de­crease in crim­in­al activ­ity near the fa­cil­ity after the zone was put in­to place, and 75 per­cent of re­spond­ing fa­cil­it­ies with buf­fer zones said the zones im­proved staff and pa­tient ac­cess to the fa­cil­it­ies.

The Mas­sachu­setts law is a re­sponse to past in­cid­ents of dan­ger­ous protests, the best-known of which was a 1994 shoot­ing at a Planned Par­ent­hood clin­ic in Brook­line that left two clin­ic work­ers dead and five wounded. The buf­fer zone is crit­ic­al to min­im­iz­ing these kinds of events and pro­tect­ing the safety of wo­men and clin­ic em­ploy­ees, sup­port­ers say.

Op­pon­ents ar­gue that any cases of mis­con­duct should be ad­dressed in­di­vidu­ally, rather than un­der a blanket re­stric­tion.

The Su­preme Court has con­sidered the con­sti­tu­tion­al­ity of state buf­fer-zone laws be­fore; in 2000, it up­held Col­or­ado’s law al­low­ing an 8-foot “float­ing” pro­tec­tion zone around in­di­vidu­als en­ter­ing or leav­ing abor­tion fa­cil­it­ies. But the Court has be­come more con­ser­vat­ive and more open to abor­tion re­stric­tions in re­cent years.

In Thursday’s de­cision, Roberts said the Mas­sachu­setts law was not “nar­rowly tailored” — one of the stand­ards gov­ern­ments must meet when de­fend­ing laws that en­croach on the First Amend­ment.

The state’s goals of pro­tect­ing pub­lic safety, and wo­men’s safety, around abor­tion clin­ics is a val­id one, the Court said. But it said the state could achieve those goals without “un­ne­ces­sar­ily sweep­ing in in­no­cent in­di­vidu­als and their speech.”

Be­cause only one clin­ic in Mas­sachu­setts has a his­tory of par­tic­u­larly dis­rupt­ive protests, Roberts wrote, the state could use po­lice to dis­perse protests at that fa­cil­ity. Or it could ad­opt meas­ures that make it a crime to “fol­low and har­ass” any­one with­in a cer­tain dis­tance of an abor­tion clin­ic.

“A painted line on the side­walk is easy to en­force, but the prime ob­ject­ive of the First Amend­ment is not ef­fi­ciency,” Roberts wrote.

The Court re­jec­ted more-sweep­ing ar­gu­ments against the buf­fer zone that could have helped un­der­mine oth­er states’ re­stric­tions. It said the state was not dis­crim­in­at­ing against an­ti­abor­tion act­iv­ists on the basis of their views, which would have made the law much harder to de­fend. But Mas­sachu­setts seemed to have “too read­ily fore­gone op­tions that could serve its in­terests just as well” while im­pos­ing few­er lim­its on free speech, Roberts wrote.

The de­cision could still put oth­er buf­fer-zone laws such as Col­or­ado’s at risk of be­ing struck down. Some cit­ies — in­clud­ing Chica­go and Port­land, Maine — also have buf­fer-zone laws. New Hamp­shire Gov. Mag­gie Has­san signed a 25-foot buf­fer-zone meas­ure in­to law just this month, which will go in­to ef­fect with­in 30 days.

Abor­tion-rights ad­vocacy groups con­demned the de­cision, ex­press­ing con­cern about its pos­sible dom­ino ef­fect on oth­er laws. “This de­cision shows a troub­ling level of dis­reg­ard for Amer­ic­an wo­men, who should be able to make care­fully con­sidered, private med­ic­al de­cisions without run­ning a gaunt­let of har­ass­ing and threat­en­ing pro­test­ers,” Cecile Richards, pres­id­ent of Planned Par­ent­hood Fed­er­a­tion of Amer­ica, said in a state­ment. “We are tak­ing a close look at this rul­ing, as well as pa­tient-pro­tec­tion laws around the coun­try, to en­sure that wo­men can con­tin­ue to make their own health care de­cisions without fear of har­ass­ment or in­tim­id­a­tion.”

Thursday’s Su­preme Court rul­ing cre­ates a pre­ced­ent that leaves the door open for oth­er chal­lenges to these re­stric­tions.

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