By Carol Zimmermann/Catholic News Service—In a June 26 decision, the U.S. Supreme Court unanimously ruled that 35-foot buffer zones around abortion clinics — meant to keep demonstrators away — violates First Amendment rights.
The decision, a victory for pro-life groups, reversed an appellate court decision upholding a 2007 Massachusetts law that made it a crime for anyone other than clinic workers to stand within the yellow semicircular lines painted 35 feet from entrances of Planned Parenthood clinics in Boston, Springfield and Worcester.
Eleanor McCullen, lead plaintiff in the case, McCullen v. Coakley, said she should be able to speak and offer advice to women going to these clinics. McCullen, a 77-year-old who attends Mass at St. Ignatius Church at Boston College, said when the case was brought to the Supreme Court that she had helped many women decide against abortion.
The Supreme Court, in its opinion written by Chief Justice John Roberts, said the state law blocked public sidewalks that have been traditionally viewed as open for free speech. It also said the government’s ability to limit speech in those places is “very limited.”
The law in question was put in place in an attempt to prevent violent demonstrations or protests outside clinic entrances. It replaced a 2000 state law that kept protesters from approaching within 6 feet of a person who was within 18 feet of an abortion clinic — similar to a 2000 law in Colorado that the Supreme Court upheld that year.
The Supreme Court’s opinion distinguished protesters from those who “seek not merely to express their opposition to abortion, but to engage in personal, caring, consensual conversations with women about various alternatives.”
The court’s decision “has affirmed the American tradition of basic constitutional rights for all,” said Boston Cardinal Sean P. O’Malley, chairman of the U.S. bishops’ Committee on Pro-Life Activities.
He said in a June 26 statement that the now-overturned legislation “reflects an ominous trend in our society” because it reveals how abortion supporters seek to deny Americans who “seek to protect the unborn” their right to freedom of speech and association as well as the “right to participate in the public square and serve the vulnerable in accord with our moral convictions.”
The U.S. Conference of Catholic Bishops had joined with other religious groups in filing an amicus, or friend of the court, brief for this case.
Tom Brejcha, president of the Thomas More Society, a Chicago-based law firm, used the words “fantastic, wonderful” and “great achievement” to describe the court’s decision.
Brejcha is familiar with the notion of buffer zones because his firm has defended pro-life advocates accused of violating Chicago’s “bubble-zone” law, which forbids picketers, protesters or counselors within 50 feet of the clinic entrance to approach clients within 8 feet to talk or give literature.
He said some of the passages of the court’s decision are “almost lyrical,” particularly when it describes how the plaintiff was “trying to communicate a peaceful message.”
He said the court’s opinion that sidewalk counselors are not necessarily protesters — but people who want to engage in one-on-one conversations — confirms the work they do, which he described as “conversations at the edge of an abyss.”
A group that was praying outside a Planned Parenthood facility in Worcester, Massachusetts, on June 26, also was pleased with the court’s decision.
“I’m very excited,” said Nancy Clark of Worcester, one of the plaintiffs in the case, “The Holy Spirit is slowly guiding us in the right direction.”
Mark Bashour, another plaintiff, has been doing sidewalk counseling in Worcester for 30 years. “Obviously I am very pleased,” he said. “Now we can get closer and they can hear us much better.
“It was a long, time-consuming three-year process taking the issue to the Supreme Court,” he said, “but by winning, now no other states will try to pass a law like this. It is very important.”
In a concurrence with the main opinion, Justice Antonin Scalia discusses what he sees as the court’s “onward march of abortion-speech-only jurisprudence.” He was joined by Justices Anthony Kennedy and Clarence Thomas.
Scalia observed that the court’s majority opinion “carries forward this court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents.”
He said that the opinion “has something for everyone,” and invalidating the law in question because it is inadequately tailored to circumstances is “certainly attractive to those of us who oppose an abortion-speech edition of the First Amendment.”
But the main part of the opinion moves toward creating a version of the First Amendment that applies only to speech about abortion, he said. By concluding that a statute like the one overturned is not content-based and therefore not subject to strict scrutiny under the law, “the court reaches out to decide that question unnecessarily,” Scalia wrote.
Scalia cited ways in which he says the main opinion singled out abortion-only speech in reaching its conclusion that the law was unconstitutional. And he concluded that although he agrees with what the court decided, he thinks it unnecessarily addressed the issue of whether the law was sufficiently narrowly tailored.
“The obvious purpose of the challenged portion of the Massachusetts Reproductive Health Care Facilities Act is to ‘protect’ prospective clients of abortion clinics from having to hear abortion-opposing speech on public streets and sidewalks,” he said.
“The provision is thus unconstitutional root and branch and cannot be saved, as the majority suggests, by limiting its application to the single facility that has experienced the safety and access problems to which it is quite obviously not addressed,” he concluded.
Justice Samuel Alito also had a separate concurrence. In it he faulted the majority for concluding that the Massachusetts law is viewpoint neutral, but he nevertheless agreed that it is unconstitutional because it burdens free speech more than necessary to accommodate state interests.
Contributing to this report were Patricia Zapor in Washington and William T. Clew and Margaret M. Russell in Worcester.