Supreme Court, 9-0, nixes 35-foot 'buffer zone' at abortion clinic

A Massachusetts law violated the free-speech rights of anti-abortion activists by keeping them 35 feet from abortion clinics, the US Supreme Court ruled Thursday. The state failed to seek less restrictive options, it found.

The US Supreme Court on Thursday struck down a Massachusetts law that enforced a 35-foot speech-free buffer zone around abortion clinics, saying the law silenced a broader spectrum of speech than is necessary to protect the clinics and their patients.

In a 9-to-0 decision, the high court ruled that the state law violated the free-speech rights of a group of anti-abortion counselors seeking the opportunity to convince women to reverse their plans to end their pregnancies.

The counselors said they had a right to approach would-be patients on public sidewalks and public streets to engage in quiet conversations and distribute leaflets. The 35-foot buffer zone prevented them from undertaking these activities, they said.

Writing for the court, Chief Justice John Roberts said the state was asserting an “undeniably significant interest in maintaining public safety” and preserving access to health-care facilities. But Massachusetts pursued those interests by taking the “extreme step of closing a substantial portion of a traditional public forum [public streets and sidewalks] to all speakers,” he said.

The state had failed to address less-restrictive alternatives that would protect free speech while also defending its interest in maintaining safety, he said.

The court record showed that most of the problem was associated with protests at a single clinic in Boston on Saturday mornings, Chief Justice Roberts said.

“For a problem shown to arise only once a week in one city at one clinic, creating 35-foot buffer zones at every clinic across the Commonwealth is hardly a narrowly tailored solution,” he said. “The Commonwealth has available to it a variety of approaches that appear capable of serving its interests, without excluding individuals from areas historically open for speech and debate.” 

Massachusetts lawmakers passed the abortion clinic buffer zone law in 2007 to prevent anti-abortion protesters from obstructing abortion clinic entrances or otherwise harassing or intimidating potential clinic patients.

The question in the case was whether the Massachusetts statute muzzled more speech than was necessary to prevent disruptions to the clinic’s operations, which are also constitutionally protected.

Massachusetts officials had argued that they had tried other less-restrictive methods – including a six-foot buffer zone that police said was too difficult to enforce.

“We cannot accept that contention,” Roberts said. “Although [state officials] claim that Massachusetts tried other laws already on the books, they identify not a single prosecution brought under those laws within at least the last 17 years.”

State officials had justified the 35-foot buffer zone by citing testimony from a police captain that such a zone would make the job of police officers “so much easier.”

“Of course it would,” Roberts said in his decision. “But that is not enough to satisfy the First Amendment.” He added: “A painted line on the sidewalk is easy to enforce, but the prime objective of the First Amendment is not efficiency.”

The decision on the Massachusetts law stems from a 2008 lawsuit filed by five anti-abortion activists charging that the Massachusetts Reproductive Health Care Facilities Act discriminated against them on the basis of their viewpoint. They argued that the law exempts abortion clinic workers from complying with the statute but not those with opposing viewpoints.

They also argued that unlike a similar law in Colorado upheld by the US Supreme Court, the Massachusetts law applied only outside abortion clinics, while the Colorado law applied outside all health-care facilities.

Before Thursday's ruling, a federal judge and a federal appeals court had upheld the Massachusetts law, ruling that it was content-neutral and, thus, did not discriminate against anti-abortion counselors. The appeals court noted that the activists and their hand-held signs were visible to women entering a clinic 35 feet away.

In reversing the appeals court, the Supreme Court said the buffer zone posed a substantial burden on the ability of anti-abortion counselors to engage in meaningful communications.

“Petitioners are not protestors. They seek not merely to express their opposition to abortion, but to inform women of various alternatives and to provide help in pursuing them,” Roberts said.

“Petitioners believe that they can accomplish this objective only through personal, caring, consensual conversations,” he said. They have been able to engage some patients, he said, but the buffer prevents them from reaching out to most.

“It is thus no answer to say that petitioners can still be seen and heard by women within the buffer zones,” the chief justice said. “If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners’ message.”

Although the decision was unanimous, Roberts’ full opinion was joined by only four justices – Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

Four other justices, Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito, agreed with the decision to invalidate the statute. But they disagreed with the majority’s conclusion that the Massachusetts law did not discriminate on the basis of the content of the counselors’ speech and their viewpoint.

In a statement after the decision, Massachusetts Attorney General Martha Coakley said her office would begin anew to work on a way to ensure safe access to abortion clinics.

“We will utilize all of the tools we have available to protect everyone from harassment, threats, and physical obstruction,” she said. “I will work with the governor, legislature, and advocates to explore additional legislative tools that also meet the court’s requirements,” Attorney General Coakley said.

Abortion rights groups expressed disappointment by the decision.

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

“While the Supreme Court today acknowledged that these laws play an important role in protecting women and doctors, today the justices made it more difficult for states to protect their citizens,” said Ilyse Hogue, president of NARAL Pro-Choice American, in a statement. “Let’s be clear: today’s decision puts women and healthcare providers at greater risk.”

Others praised the high court’s action.

“This is a double victory for the First Amendment. It was a victory for free speech and religious liberty,” Ashley McGuire of The Catholic Association said in a statement.

She said it is also a good day for women, “because women and their babies benefit from hearing there are alternatives to abortion when they feel they are in crisis."

The case was McCullen v. Coakley (12-1168).