Analysis

The Supreme Court, leaving a clear impression that foes of abortion have at least a limited constitutional right to succeed in having close, one-on-one encounters with patients seeking that medical service, struck down on Thursday a seven-year-old Massachusetts law that created a “buffer-zone” around every abortion clinic in the state. The law, the Court said, went too far to silence the messages of abortion opponents outside clinics even when those messages are quiet, intended to be courteous attempts to dissuade patients.

One potentially wider implication of the ruling is that it may also imperil “bubble zones” near clinics — invisible no-entry zones that float around individual patients as they approach a clinic. That seemed to be at least hinted by a potential future line-up of Justices, different from Thursday’s array, should a new “bubble-zone” test case arise.

The lead opinion by Chief Justice John G. Roberts, Jr., in McCullen v. Coakley went to considerable lengths to suggest ways that cities or states could pass new laws to protect patients’ access to abortion facilities. But all of those approaches, it appeared, would be to thwart actual obstruction, physical intrusion, or actual intimidation of patients, not the kind of “counseling” that the Court found threatened by the Massachusetts law.

What the First Amendment does protect, the Roberts opinion made clear, is gentle persuasion, at least when that is carried out on the public sidewalks and roadways next to an abortion facility. Citing data by abortion foes who insist they engage only in benign counseling, the Chief Justice said they have had “far less frequent and far less success” in getting even to talk to patients personally or hand them literature since the buffer zone was imposed.

“It is no answer,” the Chief Justice wrote, “to say that [abortion counselors] can be seen and heard by women within the buffer zones. If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled [the] message [of counseling].”

Concluding that sidewalk counselors working the sidewalks around abortion clinics are “not protestors,” the Court’s main opinion said that “they seek only to inform women of various alternatives and to provide help in pursing them. [They] believe that they can accomplish this objective only through personal, caring, consensual conversations.”

The opinion thus put state and city governments on notice that, while they may act to ensure public safety around and abortion patients’ access to medical facilities providing such services, they cannot do so by making entirely off limits to counselors the areas closest to the clinics that include public sidewalks and roadways.

This, then, was a ruling about “buffer zones.” The Court’s main opinion did not consider the continuing validity of a prior case about anti-abortion protests, dealing with the somewhat separate issue of “bubble zones.” In its decision in 2000 in Hill v. Colorado, the Court had upheld a state law that limited close contact with persons entering or leaving an abortion clinic, by setting up a “buffer zone” and, within that zone, making it illegal to approach a person closer than eight feet (a “bubble zone”) without that person’s consent, to engage in counseling or literature distribution.

After this new ruling, it appeared that even a “bubble zone” might be vulnerable to challenge, at least when the patient was shielded from counseling on a public sidewalk or roadway near the clinic. The Chief Justice’s approving remarks about the First Amendment right to engage in counseling in public arenas appeared to contradict some of the reasoning of the 2000 decision.

In a future test case on “bubble zones,” it would appear that four Justices who on Thursday wanted to strike down the Massachusetts law on broader grounds than those used by the Chief Justice might well be prepared to vote to strike down a “bubble zone.” In fact, three of those four Justices called specifically on Thursday for overruling of the Hill v. Colorado precedent. Those three were Justice Antonin Scalia, the author of a separate opinion, joined by Justices Anthony M. Kennedy and Clarence Thomas.

Justice Samuel A. Alito, Jr., did not call for an overruling of the Hill precedent, but did object in an opinion for himself that the Chief Justice’s opinion in the Massachusetts case did not go far enough.

The Chief Justice’s opinion was joined in full by Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. That opinion did not discuss the Hill precedent — presumably because some of the Justices joining it would have objected.

Thus, whether that precedent might be in jeopardy in a future case could depend upon whether the Chief Justice could be persuaded to join the four Justices who did not join his Massachusetts opinion but who might seek to enlist his support in an effort to protect close encounters in the “bubble zone” context, too — an extension of the new decision beyond the “buffer zone” context.

Recommended Citation: Lyle Denniston, Opinion analysis: A broader right to oppose abortion, SCOTUSblog (Jun. 26, 2014, 3:39 PM), https://www.scotusblog.com/2014/06/opinion-analysis-a-broader-right-to-oppose-abortion/