Protect the Zone: Why SCOTUS Got it Wrong on Buffer Zones

United States Supreme Court (Image via Wikimedia Commons)

(Image via Wikimedia Commons)

This morning the Supreme Court struck down Massachusetts’ 35 foot abortion clinic buffer zone law in McCullen v. Coakley. In a unanimous decision, the Court ruled the buffer zone law placed an undue burden on the protesters’ ability to “engage in personal, caring, consensual conversations with women about various alternatives.”

In 2000, Massachusetts passed the Reproductive Health Care Facilities Act which initially established an 18 foot buffer zone around clinic entrances and driveways. Individuals entering inside the 18 foot zone could not get within 6 feet of a patient without consent for the purposes of counseling or distributing literature. These 6 foot zones were deemed unenforceable and the law was amended in 2007 to establish a fixed 35 foot buffer zone. Under the new law, no individuals may enter the buffer zone except for patients entering or exiting the facility, employees of the facility, law enforcement, paramedics, and utilities personnel, and pedestrians using the sidewalk to get to a destination that is not the clinic.

Writing for the majority that included Justices Sotomayor, Kagan, Ginsburg, and Breyer, Chief Justice John Roberts differentiates between protesters and petitioners. He writes protesters “express their moral or religious opposition to abortion through signs and chants, or, in some cases, more aggressive methods such as face-to-face confrontation.” Whereas petitioners “attempt to engage women approaching the clinics in what they call ‘sidewalk counseling,’ which involves offering information about alternatives to abortion and help pursuing those options.” McCullen claims she and other petitioners have dissuaded hundreds of women from obtaining abortions with their calm, caring demeanor and honest conversations. Petitioners say the buffer zones have rendered them unable to perform their counseling.

Chief Justice Roberts writes that the public  sidewalk is one of few places remaining where a speaker can be confident he is not simply preaching to the choir; listeners often encounter speech they would otherwise tune out on other means of communication. The Massachusetts Act is not content-based aimed at restricting abortion-related speech, as petitioners argued, because the law is violated not by what is said, but where they say it. Massachusetts’ bases for the law of protecting public safety and ensuring unobstructed access to clinics are legitimate; “large crowds outside abortion clinics can still compromise public safety, impede access, and obstruct sidewalks.” Therefore, the law is content neutral.

In regards to the buffer zone exemptions, exempting clinic employees to walk in the buffer zone, particularly the clinic escorts who accompany patients into the building, is not an attempt to give more weight to the pro-choice side of the argument on the part of the state of Massachusetts. The exemption is limited to “the scope of their employment,” which merely allows them to do their jobs. Petitioners claimed clinic escorts made disparaging remarks about their efforts and often prevented the petitioners from providing literature to patients. Because testimony did not clarify if this was done inside or outside of the buffer zone, and because clinic escorts are told not to express their views on abortion, the clinic staff exemption does not constitute viewpoint discrimination.

Writing the majority opinion, Chief Justice Roberts ruled the buffer zones established by the law place an undue burden on petitioners and significantly limit their ability to provide “sidewalk counseling.” “The Act operates to deprive petitioners of their two primary methods of communicating with patients.” Petitioners are not protesters and merely seek to provide alternatives to abortion. Chief Justice Roberts followed by providing policy recommendations that are less restrictive. Ruling that the law burdens more speech than necessary, Massachusetts can enact laws imposing criminal sanctions on those who obstruct, intimidate, or interfere with someone obtaining or providing reproductive services. Preventing obstruction of clinic driveways is already addressed through local traffic ordinances. Regarding unrestricted access to clinic entrances, police can disperse large crowds that block entrances.

When reading this decision, it should be noted that the Supreme Court justices enjoy hearing arguments and making rulings within the confines of a strictly enforced 100 foot buffer zone. This case highlights how drastically a sympathetic plaintiff can change the entire debate. The Court is completely off the mark in distinguishing protesters and petitioners. Freedom of speech does not guarantee a freedom to be listened to. Clinic protesters have been known to completely block the sidewalk with large posters depicting supposed late term abortions, throw plastic fetuses at patients entering the clinic while standing outside the buffer zone, and threaten women with violence. The decision mentioning the need for police to disperse protesters proves the need for these buffer zones. Violence at abortion clinics is widespread. In Massachusetts, this buffer zone law stemmed from an anti-abortion fanatic shooting 7 people at a clinic. Since 1977, abortion clinic violence has included 8 murders, 17 attempted murders, 42 bombings, and 181 cases of arson.

In the wake of this terrible Supreme Court ruling that once again tells women that no one really cares about our rights, I am even more excited to begin working as a volunteer clinic escort at Planned Parenthood next month. Women do not need to be protected from their own decision to obtain an abortion; they need to be protected from the anti-choice zealots who would rather threaten a woman’s safety than allow access to an abortion clinic.


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