Abortion clinic 'buffer zones' violate first amendment – supreme court

The US supreme court struck down a Massachusetts law ensuring a 35-foot protective “buffer zone” outside abortion clinics, ruling that it violated the first amendment by preventing the free speech of anti-abortion protesters.

In a unanimous decision, the court said the zone was too sweeping, intruding onto public sidewalks where free debate and leafletting traditionally take place.

The decision, which was relatively narrow, allows the state an opportunity to enact a new, less restrictive law. It did not overturn a previous supreme court decision in 2000, which upheld a buffer zone in Colorado.

The 2007 law was aimed at keeping protesters at least 35 feet from the entrance to prevent clashes between opponents and advocates of abortion rights that were occurring outside healthcare clinics.

“The buffer zones burden substantially more speech than necessary to achieve the Commonwealth’s asserted interests,” the court said.

The case was brought by seven Massachusetts petitioners, including Eleanor McCullen, 77, who have demonstrated for years outside the state's three abortion facilities in Boston, Springfield and Worcester.

They argued they are not anti-abortion protesters but peaceful “sidewalk counsellors” who want the freedom to talk to women entering the clinic. The buffer zone violates their right to free speech, they said, and the supreme court agreed.

“It is no accident that public streets and sidewalks have developed as venues for the exchange of ideas,” the supreme court wrote in its opinion. “Even today, they remain one of the few places where a speaker can be confident that he is not simply preaching to the choir … In light of the First Amendment’s purpose ‘to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail …,’ this aspect of traditional public fora is a virtue, not a vice.”

The majority opinion notes that the law is exceptional – no other states have a law that creates fixed buffer zones around clinics.

“It does, however, raise concern that the Commonwealth has too readily forgone options that could serve its interests just as well, without substantially burdening the kind of speech in which petitioners wish to engage.”

The justices said that the state had failed to show that it had seriously undertaken less intrusive methods to deal with public safety concerns outside clinic, including injunctions against individuals causing problems.

Welcoming the ruling, Mark Rienzi, lead counsel in the case said: “Americans have the freedom to talk to whomever they please on public sidewalks. That includes peaceful pro-lifers like Eleanor McCullen, who just wants to offer information and help to women who would like it. The supreme court has affirmed a critical freedom that has been an essential part of American life since the nation’s founding.”

In a statement, state attorney general Martha Coakley expressed disappointment.

“With today’s decision, our work begins again. We are not going to give up our fight to make sure women have safe access to reproductive healthcare. We will utilize all of the tools we have available to protect everyone from harassment, threats, and physical obstruction. I will work with the governor, legislature and advocates to explore additional legislative tools that also meet the court’s requirements.”

Women's reproductive rights groups said they were disappointed in the ruling and said it would put women and healthcare providers at risk.

“Today’s ruling isn’t the end of the story – it can’t be,” said Martha Walz, president and CEO of Planned Parenthood League of Massachusetts, who authored the 2007 bill when she was state representative. “Our top priority is to ensure the safety of our patients and staff, and we will work with local law enforcement and elected officials to protect public safety.”

Nancy Northup, president and CEO of the Center for Reproductive Rights, said: “It is a commitment of our constitution that each of us be able to exercise our rights free of intimidation, harassment, and violence. Today's supreme court decision leaves Massachusetts women temporarily without important protection as they seek care at reproductive health clinics, but gives lawmakers the opportunity to restore these vital safeguards.”

She said they would now look to Massachusetts lawmakers, who had acted in the past to protect women, to take swift action in light of the decision.

Ilyse Hogue, president of Naral Pro-Choice America said she was “deeply disappointed” in the ruling and pointed out that the anti-abortion movement had a long history of violence. She said: “The law was supported by public safety officials whose goal is to protect women, doctors, and clinic workers from the relentless harassment and intimidation that they face daily.”

The law has been unsuccessfully challenged in federal court in Massachusetts several times. A previous, less restrictive measure in 2000 created a 18ft floating “bubble” around patients once they approached the clinic, but it was complicated and difficult to enforce, supporters say.

The 2000 law was the response to harassment and intimidation of the 1990s in Massachusetts, a state with a history of violence and intimidation at abortion clinics, including a shooting rampage in 1994 that left two staff dead.

Eight murders and 17 attempted murders have been committed against abortion clinic staff since 1991. Two clinic personnel at a Planned Parenthood clinic in Boston were killed by a gunman who also wounded five others in 1994.

Steven R Shapiro, legal director of the American Civil Liberties Union, said that it was a difficult case, but that the court underestimated the difficulties in enforcing other laws to prevent harassment.

“We agree that a fixed buffer zone imposes serious first amendment costs, but we also think the court underestimated the proven difficulty of protecting the constitutional rights of women seeking abortions by enforcing other laws – especially regarding harassment – outside abortion clinics.

“Today’s opinion makes it more important than ever that the police enforce the laws that do exist that in order to ensure that women and staff can safely enter and leave abortion clinics.”
Stephanie Todi, senior staff attorney with the Center for Reproductive Rights, said the organisation took heart in an opinion that recognised harassment and intimidation of women outside clinics and invited lawmakers and law enforcement officers to take other measures to ensure public safety. She said that the petitioners argument that they were “sidewalk counsellors” appeared to have an impact in the case.“ At the same time, the court recognised that the so-called sidewalk counsellors are a small percentage of those outside clinics and that others take a more aggressive approach.”

In its opinion, the court said that the buffer zone had taken its toll on the petitioners' free speech ability, citing McCullen's claim that, while she had persuaded about 80 women not to terminate their pregnancies since the act, she has persuaded far fewer people since. Another petitioner “reports an even more precipitous decline in her success rate: she estimated having about 100 successful interactions over the years before the 2007 amendment, but not a single one since.”

The justices said that the commonwealth had not shown it seriously undertook to address public safety issues of more aggressive protesters. “It identifies not a single prosecution or injunction against individuals outside abortion clinics since the 1990s,” they said.

It said there were criminal and civil punishments available to prohibit hindering, intimidation or blocking the entrance to clinics, such as the Freedom of Access to Clinic Entrances Act of 1994.