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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