M.Scott Mahaskey/POLITICO Justices void abortion 'buffer zone'

The Supreme Court on Thursday unanimously struck down a Massachusetts law that restricted speech outside abortion facilities, a decision that abortion-rights advocates decried as a threat to patient safety at clinics nationwide.

The court said the state law violated the First Amendment because its “buffer zone” limited speech too broadly, covering 35 feet from the doorway of facilities and including public areas like sidewalks.


Although other buffer zones typically are smaller, specifying distances such as 8 feet or 15 feet from clinics, the advocates said the court’s decision puts them in jeopardy. “If you were a betting man, you would bet that they’ll all go,” said Roger Evans, senior counsel at the Planned Parenthood Federation of America.

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Abortion opponents hailed the ruling as a victory in protecting free speech and their ability to peacefully protest or counsel women entering clinics that perform abortions. They also suggested it would force a reexamination of similar laws.

Thursday’s decision does not directly affect the buffer zones in other states and cities, and the justices indicated that more limited restrictions could be put into place in Massachusetts.

The Obama administration, which argued in court in defense of the Massachusetts statute, said it would support any attempt to create an alternative zone there.

“While the court disagreed on this specific law, we are pleased that their ruling was narrow and that they recognized the possibility of alternative approaches, such as the federal law protecting a woman’s right to access reproductive health clinics,” White House Press Secretary Josh Earnest said. “The administration remains committed to enforcing that law to the fullest.”

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Massachusetts Attorney General Martha Coakley said she had spoken with Gov. Deval Patrick, Boston Mayor Marty Walsh and state lawmakers shortly after the ruling, and all were committed to moving quickly to protecting women’s access to the five clinics affected. Massachusetts officials will seek court injunctions and other actions against protesters who threaten women’s safety, as well as work with law enforcement, Coakley said.

The Boston facility at the center of the lawsuit likely will have to add clinic escorts to protect patients, said Martha Walz, president and CEO of Planned Parenthood League of Massachusetts. Escorts are currently present on Saturdays, but “I anticipate that we will need to have them on additional days of the week,” Walz said.

The court ruled 9-0 that the state law was a violation of the First Amendment, but the justices were split on why, with Chief Justice John Roberts appearing to be the swing vote. He joined the court’s liberal block, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, in saying that the law’s limits on speech were too broad.

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“Here the Commonwealth has pursued [public safety] interests by the extreme step of closing a substantial portion of a traditional public forum to all speakers,” Roberts wrote for the court. The extent of those zones “burden substantially more speech than necessary to achieve the commonwealth’s asserted interests.”

In its majority ruling, the court did not establish what distance would be acceptable but made a veiled suggestion that a smaller space would be legal in Massachusetts.

“If the Commonwealth is particularly concerned about harassment, it could also consider an ordinance such as the one adopted in New York City that not only prohibits obstructing access to a clinic, but also makes it a crime ‘to follow and harass another person within 15 feet of the premises of a reproductive health care facility,’” Roberts wrote, adding that the ruling is not necessarily a stamp of approval on that municipal law.

The other justices, the court’s four conservatives, said the law was unfairly aimed at anti-abortion speech because it restricted protesters but not clinic employees.

The decision in McCullen v. Coakley is the most significant abortion-related ruling to come out of the court since its 2007 decision upholding a ban on certain late-term abortions.

The case was brought by several abortion opponents, led by a grandmother who regularly tries to do “sidewalk counseling” outside a Boston clinic. They argued that the law restricted their speech against abortion but did not restrict speech in support of access to the procedure. The difference, they said, put the law in violation of the First Amendment.

The state argued that protected space outside abortion facilities is needed in the wake of violence and harassment at many facilities, particularly in the 1990s.

It’s the first time the court has addressed the controversial issue of abortion clinic buffer zones since 2000, when it upheld a Colorado law that created an 8-foot buffer that “floated” around people entering or exiting a facility that provided abortions.

The Supreme Court’s ideological center has moved to the right since then, from former Justice Sandra Day O’Connor to Justice Anthony Kennedy.

Outside the court, anti-abortion groups celebrated the decision. They said it was “a very good day for America” and promised they would be back Monday to hear the court’s decision in Burwell v. Hobby Lobby, which examines Obamacare’s contraception mandate.

“This is a very positive decision,” said Casey Mattox, senior counsel with Alliance Defending Freedom. “This may end up meaning the end of most abortion clinic buffer zones around the country, because I think most states and localities are not going to be able to show that they truly have a compelling interest.”

In a statement, the American Civil Liberties Union implied that the court didn’t understand the problems some women encounter as they enter a clinic.

“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,” ACLU Legal Director Steven Shapiro said.

During oral arguments in the case in January, Kennedy said he was concerned that quiet counseling was restricted in the same way that antagonistic protests would be. He suggested that even when loud and harassing speech must be restricted for safety, quiet conversation about an issue of public importance should be protected. That thinking appeared to dictate the final ruling, although he did not join the majority opinion.

The woman who led the challenge, Eleanor McCullen, stands outside a Boston-area Planned Parenthood clinic on Tuesdays and Wednesdays to try to dissuade women from obtaining abortions. She says she has personally spent more than $50,000 on her effort, including buying baby supplies and paying bills for women she meets outside the clinic. McCullen and six others on the lawsuit say that “hundreds” of women accepted their help before the law went into effect.

McCullen argued that the buffer zone — which is a line painted on the sidewalk at the 35-foot mark — severely limited her right to speak to women outside the clinic. It allowed only certain people inside the zone: patients, agents of the clinic, people conducting official business, such as utility workers, and passersby.

Her faith in the country has been restored by the ruling, McCullen told the Boston Globe after the ruling.

“The court recognized our First Amendment rights, and now I’ll have a chance to speak to people one-on-one,” she said. “If someone isn’t interested, that’s fine. But I’d like to be there to help.”

McCullen said she and other protesters had no plans to assemble in large numbers at clinics now that the law has changed. “We’re not there to disturb the peace,” she said. “We’ll be gentle and loving.”

Buffer zones exist in numerous states — the newest, in New Hampshire, takes effect next month and specifies a 25-foot zone — and have often been controversial. Others also have made their way to the Supreme Court.

In 1994, the justices upheld a buffer zone for abortion clinics in Florida. Three years later, they upheld a 15-foot buffer zone around the entrances of abortion facilities in New York state but struck a 15-foot floating zone.

A Portland, Maine, city ordinance bans protests within 39 feet of an abortion facility. In February, an evangelical couple filed a federal lawsuit that is pending.