Supreme Court rejects abortion clinic buffer zone in nuanced ruling

June 26, 2014 6:17 PM PT

Reporting from Washington — Calling the 35-foot buffer zones imposed at Massachusetts abortion clinics a violation of free speech, the Supreme Court tried to set out a middle ground Thursday in the sidewalk battles often waged outside women’s health facilities offering the procedure.

All nine justices agreed that the no-talking and no-standing zones surrounding the entrances to abortion facilities in Massachusetts were unconstitutional and unnecessary. But a narrow majority also affirmed that cities and states have ample power to prevent or arrest protesters who are obstructing clinics or harassing patients.

Joined by the court’s liberal justices, Chief Justice John G. Roberts Jr. sought to craft a compromise that protects both free speech rights on a public street and a woman’s right to a legal abortion. He was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

It was the first time the Supreme Court had revisited the abortion issue since 2007, when sharply divided justices upheld a federal law banning so-called partial-birth abortions. That decision gave states more leeway to regulate the practice of abortion, and many conservative states have adopted new restrictions since
then.

In Thursday’s decision, Roberts said states and cities may not take the “extreme step” of closing public sidewalks to those who hope to have “quiet conversations” with women walking toward abortion clinics. Doing so, he wrote in McCullen vs. Coakley, violates the 1st Amendment.

Roberts compared the Massachusetts law to drawing a “painted line on the sidewalk” inside of which it was illegal even to pass out a pamphlet. He said less-restrictive alternatives were available. “The police appear perfectly capable of singling out lawbreakers,” Roberts wrote, without making it illegal to speak to women on the sidewalk.

At the same time, he said, cities and police have the power to target people or groups who try to block the sidewalks.

If harassment is the problem, he pointed to a New York City ordinance that makes it a crime to “follow and harass” anyone within 15 feet of a “reproductive healthcare facility.”

In the Massachusetts case, the lead plaintiff was Eleanor McCullen, 77, who issued a statement Thursday saying she was grateful.

“Today’s ruling means I can offer loving help to a woman who wants it, and neither of us will go to jail for the discussion,” she said.

The four more conservative justices would have gone further and declared unconstitutional any laws that restrict “abortion-opposing speech on public streets and sidewalks,” as Justice Antonin Scalia put it.

Only Massachusetts had adopted such a broad buffer zone, the court said. But its decision cast some doubt on less rigid ordinances in many cities, including San Francisco, Los Angeles and Chicago. They set smaller buffer zones or “floating bubble zones” to protect patients from harassment.

Abortion rights advocates called the ruling disappointing and predicted it would lead to more sidewalk confrontations.

“This decision shows a troubling disregard for American women, who should be able to make carefully considered, private medical decisions without running a gantlet of harassing and threatening protesters,” said Cecile Richards, president of the Planned Parenthood Federation.

Megan Amundson, executive director of NARAL Pro-Choice Massachusetts, said the state’s stricken law “did exactly what it was intended to do: It prevented violence at clinics while allowing anti-choice protesters to express their views. Without it, the only tool we have left to combat clinic violence is to prosecute people after they have already committed violent acts. We know that prosecuting zealots does not deter them.”

Prior to the 1990s, most of the court’s decisions on sidewalk protests had involved labor picketing or civil rights demonstrators.

In 1994, the court upheld a judge’s order that set a 36-foot buffer zone at the entrance to an abortion clinic in Florida.

The majority said this was justified because protesters had repeatedly blocked the entrance to the driveway. Justices Scalia, Anthony Kennedy and Clarence Thomas dissented on free speech grounds.

In 2000, the court upheld a Colorado law that set an eight-foot zone around patients entering a clinic who did not want to speak to sidewalk demonstrators. Again, Scalia, Kennedy and Thomas dissented.

Massachusetts adopted a similar law, but expanded it in 2007 to include the 35-foot fixed buffer zone after repeated demonstrations at a Boston clinic.

When conservative lawyers filed suit in Boston, they were optimistic that the more conservative high court, now led by Roberts, would overturn the Colorado ruling and strike down all the laws and past court rulings that restricted antiabortion activists on the sidewalks.

But the majority, with Roberts’ support, declined to go that far, leaving antiabortion activists with less than they had hoped for.

Mark Rienzi, a Catholic University professor who represented McCullen, said the ruling makes clear that “the government cannot reserve its public sidewalks for Planned Parenthood. Today’s decision confirms that the 1st Amendment is for everyone, and that the government cannot silence peaceful speakers.”

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