The U.S. Supreme Court handed down an expected ruling today that overturned a Massachusetts law which required a buffer zone around the entrances of abortion clinics. The only surprise is that the decision was unanimous.
Earlier this year, the Court heard oral arguments on the case McCullen v. Coakley. The plaintiff’s attorney argued that the Massachusetts law providing a 35 foot zone to keep protestors away from clinic doors is discriminatory because the law makes an exemption for employees to pass. The suit, brought by right-to-life activist Eleanor McCullen, additionally asserted that the buffer law doesn’t provide for any alternative means to get her message across to potential abortion seekers.
The Justices agreed that the buffer zone was a violation of the First Amendment, and struck down the law, but their opinions were not in lock-step. Chief Justice Roberts, who wrote the majority opinion, was joined by Breyer, Ginsburg, Kagan, and Sotomayor in reasoning that there remained ways for the state to protect women’s privacy without violating free speech.
Massachusetts had unsuccessfully argued that the buffer zone prevents all protestors from accessing the zone, including pro-choice activists. The state originally had in place a law similar to one in Colorado, which was upheld by the Supreme Court in 2000, (albeit, by a more moderate court at that time). The Colorado law has a 100 foot zone in which there is an 8 foot “floating bubble” around individuals within the protected area — meaning no one may approach a woman to “educate” or “counsel” her.
Massachusetts abortion clinics have historically been the scene of protests, some of which turned violent, including a shooting that killed two back in 1994. The state can choose to adopt a Colorado-style law, which would likely survive a court challenge.
Justices Scalia, Kennedy, and Thomas signed-on to a separate concurring opinion that criticized the majority for not taking an absolutist stand on the First Amendment. Justice Alito wrote his own opinion.
The irony of this ruling, as reported by Democracy Tree last January, and particularly with the concurrent opinion, is that the U.S. Supreme Court has its own buffer zone in which protests are banned. Found in the high court’s building regulations code, a protest-free zone was enacted one year ago this month:
So much for free speech at the U.S. Supreme Court.