Supreme Court Scrutinizes Massachusetts Buffer Zone at Abortion Facilities

Oral arguments for McCullen v. Coakley stir predictions that the state law could be overturned.

U.S. Supreme Court building
U.S. Supreme Court building (photo: Wikimedia Commons)

WASHINGTON — Do “buffer zones” at abortion businesses maintain order and protect clients from intrusive protesters? Or do such practices suppress the speech of peaceable pro-life counselors?

On Jan. 15, the U.S. Supreme Court weighed those questions during oral arguments for McCullen v. Coakley, a legal challenge to a Massachusetts law that requires a 35-foot “buffer zone” separating pro-lifer activists engaged in counseling and prayer from the entrances to state abortion businesses.

The closely watched case underscored the high stakes for abortion-rights supporters who have sought to frame McCullen as a threat to “reproductive rights” rather than a First Amendment case.

But a series of pointed questions and observations from justices on both sides of the Supreme Court’s ideological divide underscored their concerns about the law’s impact on constitutionally protected speech. Several justices noted that the law allowed abortion-facility employees and escorts to move through the buffer zone, giving the appearance that the state endorsed certain viewpoints on a contentious social and political issue.

“In speech cases, when you address one problem, you have a duty to protect speech that’s lawful,” said Justice Anthony Kennedy.

Justine Antonin Scalia took issue with the attorneys for the defendants who characterized pro-life activists as “protesters” rather than “counselors.”

“These people don’t want to protest abortion. They want to talk to women who are about to get abortions and try to talk them out of it,” said Scalia.

But Justice Elena Kagan, known as a strong supporter of abortion rights, also expressed surprise at the scope of the 35-foot buffer zone, surprising some court watchers.

The lead plaintiff in the legal challenge to the Massachusetts law is Eleanor McCullen, a Catholic who has counseled women at a Boston-area abortion facility since 2000 and argues that the buffer-zone ordinance has unlawfully violated her First Amendment rights.

McCullen says that her quiet words of advice and support have dissuaded more than 80 women from going through with an abortion, but the buffer zone has made it tough for her to reach even more women.

Massachusetts Attorney General Martha Coakley, the  lead defendant in the case, counters that the buffer zones have kept the peace on sidewalks near state abortion businesses, after a history of tense standoffs between protesters on both sides of the issue and a deadly 1994 rampage by an opponent of abortion rights. The Obama administration has backed the state law, and at the Jan. 15 hearing, a U.S. deputy solicitor general lent further weight to arguments defending the buffer zone.

 

What Might Happen

The justices will also consider whether a 2000 Supreme Court case, Hill v. Colorado, which upheld a more limited buffer-zone law in Colorado, applies to the Massachusetts law. Some experts believe that Hill could also be in jeopardy, as the composition of the high court has changed, and the oral arguments pointed to increased scrutiny of the constitutional problems posed by such statutes.

Three justices — Kennedy, Scalia and Clarence Thomas — dissented from the high court’s 2000 decision on Hill, and experts predict that Justice Samuel Alito, a strong supporter of First Amendment rights, will join them in opposing Massachusetts’ more intrusive buffer-zone ordinance. Chief Justice John Roberts Jr. did not signal his views during the oral arguments, surprising many court watchers, and there is some debate about whether he will join the conservative wing.

“Given Justice Kennedy’s clear concerns about the Massachusetts law, it seems safe to expect at least a 5-4 decision overturning it,” argued Carrie Severino, chief counsel and policy director for the Judicial Crisis Network, in a blog post on National Review’s Bench Memos.

“But there is an outside chance that Justice Kagan could either concur in the judgment to strike down the law on far more limited grounds or that even the chief justice, who remained uncharacteristically silent, could attempt to cobble together a coalition to strike down the law in a very limited way.” 

However, Mark Rienzi, an associate professor of law at The Catholic University of America and the lead attorney for McCullen, believes there is reason to expect an outright victory.

“I am not sure that modifying the law is an option. There is only one statute in Massachusetts. If 35 feet is too much, the answer is that it is invalid,” Rienzi told the Register.

“It is wrong for the government to say they are protecting women by stopping people from talking to them. If they want to have the conversation, they should have it, and the government should get out of the way.”

 

‘Politically Motivated’

Dana Cody, the executive director of the Life Legal Defense Foundation, which represents pro-life activists in court, is eager to see both the Colorado and the Massachusetts’ buffer-zone laws overturned.

While abortion-rights activists say the ordinances are needed to protect against protester-related problems, Cody told the Register that such ordinances are “politically motivated” and that laws already exist to punish actual cases of violence.

“You have a penal code, and if people are violent, they can be prosecuted under the pedal code,” she said.

Further, while media coverage of facility-related problems often scrutinizes the actions of pro-life activists, the Jan. 15 oral arguments cited aggressive behavior by abortion-right groups.

In one exchange, Justice Stephen Breyer asked the attorney for the state of Massachusetts to provide examples of past problems at abortion facilities that prompted the state Legislature to pass the more restrictive 2007 law, after an earlier statute failed to diffuse tensions.

The state attorney noted evidence that described “pro-choice advocates swearing and screaming at pro-life advocates within the buffer zone.” And he said, “You had the Pink Group, which is a pro-choice organization, pushing and shoving and jockeying for position.”

Bench Memos’ Ed Whelan, an expert on the Constitution and the president of the Washington-based Ethics and Public Policy Center, found it striking that “the primary evidence that the state’s lawyer cites for a law that has the predominant effect of barring peaceful pro-life expression on public sidewalks within 35 feet of an abortion clinic is hostile behavior by ‘pro-choice advocates.’”  

 

Concern Among Abortion-Rights Supporters

Beyond the courtroom, the legal challenge to the Massachusetts statute stirred anxiety from abortion-rights supporters. But commentators also noted that the polarized issue of abortion had shifted from facility protests to other forums.

“[T]he anti-abortion movement has professionalized and matured; it has also managed to maintain its grassroots activism in the absence of large-scale street protests,” suggested Joshua Wilson, the author of The Street Politics of Abortion: Speech, Violence and America's Culture Wars, in a Jan. 16 commentary  for The Washington Post.

“Just as with the policy fight, the work of anti-abortion ‘sidewalk counselors’ has moved indoors in the form of ‘crisis-pregnancy centers.’”

The New York Times editorial page, which defended the law as a legitimate response to “public-safety” concerns, acknowledged the First Amendment issues posed by the case but insisted “the broader issue at stake is protecting women’s access to abortion, which is under assault around the country by lawmakers and protesters alike.”

A decision from the court is expected by June, and the outcome will reveal whether the justices share the Times’ understanding of this case.

Meanwhile, pro-life leaders like Live Action’s Lila Rose and Abby Johnson, author of Unplanned and a onetime abortion-facility manager, argue that it’s past time for the Supreme Court to uphold the speech rights of pro-life counselors like Eleanor McCullen.

“Pro-choice activists support these laws because they know that sidewalk counseling works,” Johnson told the Register. “Advocacy outside of abortion clinics cuts into the abortion industry’s revenue. Every baby that is saved is a hit to their bottom line.”

Joan Frawley Desmond is the Register’s senior editor.