WASHINGTON — On June 26, the U.S. Supreme Court ruled that Massachusetts’s 35-foot “buffer zone” that separates pro-life counselors from the entrance to abortion facilities violates First Amendment free-speech rights.

“The buffer zones burden substantially more speech than necessary to achieve the commonwealth’s asserted interests,” stated Chief Justice John Roberts, writing for the majority in a unanimous decision.

Justice Antonin Scalia, joined by Justices Anthony Kennedy and Clarence Thomas, wrote a concurring opinion that agreed with the majority’s judgment but was sharply critical of the reasoning behind the court’s narrow ruling, which will likely have limited application.

Still, the ruling was a clear defeat for the state of Massachusetts and for abortion-rights groups, which had argued that the ordinance maintained public order and protected women entering abortion businesses from intrusive protesters. Rejecting those arguments, the high court ruled that the state of Massachusetts failed to show that it had tried to provide other means of securing public order and access to abortion businesses without restricting speech rights.

Pro-life activists applauded the unanimous decision, but they questioned whether the ruling would provide the basis for successful legal challenges to similar ordinances in other states.

“While we are glad that the court unanimously struck [down] Massachusetts’ law, we are disappointed that the court did not recognize the viewpoint-based restriction this type of law creates,” said Rebekah Millard, staff counsel for the Life Legal Defense Foundation, which represents pro-life activists in court. The foundation filed an amicus brief in support of Eleanor McCullen, the Catholic sidewalk counselor who challenged the state ordinance.

“Because the Massachusetts law only applies to abortion clinics and only to non-employees of those clinics, it has the affect of only restricting pro-life speech,” Millard told the Register.

“The court did not agree with this argument today (although the concurrence of Justice Scalia certainly did).”

 

‘Clear Message’

Nonetheless, the Thomas More Law Center, a public interest group that is involved in a legal challenge to Maine’s 39-foot buffer-zone ordinance, welcomed the unanimous ruling.

“This is a clear message to other states and municipalities: that they may not take the extreme step of closing a substantial portion of a traditional public forum to all speakers simply because this extreme step would be easier than enforcing other less restrictive laws that already exist,” said Erin Kuenzig, a Thomas More Law Center attorney, in a statement following the ruling. “The First Amendment deserves greater protection.”

Eleanor McCullen, a Catholic who has served as a sidewalk counselor at a Boston-area abortion facility since 2000, had contended that the buffer-zone statute unlawfully violated her First Amendment rights.

She reported that her compassionate advice and support led 80 women to decide against having abortions. However, she contended that many more women could have been helped if the buffer zone had not prevented her from speaking with clients entering the site.

Massachusetts Attorney General Martha Coakley, the  lead defendant in the case, argued that the ordinance kept the peace on sidewalks near state abortion businesses, and Coakley’s supporters often cited a 1994 rampage by John Salvi, an opponent of abortion rights. The Obama administration has backed the state law, and  the U.S. deputy solicitor general addressed the court during oral arguments for the case in January.

 

Disagreements Among the Justices

While the court issued a unanimous ruling in McCullen v. Coakley overturning the state law, legal experts noted sharp disagreements among the justices regarding the basis of that judgment against the state of Massachusetts, with Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg and Stephen Breyer joining Chief Justice Roberts in a narrow opinion that suggested such ordinances did not explicitly suppress pro-life speech.

At National Review’s Bench Memos blog, Ed Whelan outlined the key points of the majority ruling.

“The chief justice concludes that the statute is content-neutral. First, although it has the inevitable effect of disproportionately restricting abortion-related speech, it can be justified by content-neutral concerns about public safety and patient access,” noted Whelan in a June 26 blog post.

Whelan also noted that Roberts found that “the statute’s exemption for clinic employees does not render it viewpoint-discriminatory because ‘[t]here is no suggestion in the record that any of the clinics authorize their employees to speak about abortion in the buffer zones.’”

However, the majority ruled against the ordinance because the buffer zones “burden substantially more speech than necessary to achieve the commonwealth’s asserted interests,” as Roberts explained.

Justice Scalia, concurring in the judgment only, issued an opinion that was joined by Justices Kennedy and Thomas, while Justice Samuel Alito issued his own opinion.

Scalia sharply criticized the majority for “carr[ying] forward this court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents.”

Scalia argued that the Massachusetts ordinance was not content-neutral.

“Every objective indication shows that the provision’s primary purpose is to restrict speech that opposes abortion,” he stated.

And he noted that the buffer-zone ordinance was imposed statewide, even though only one abortion business “is known to have been beset by the problems that the statute supposedly addresses.”

 

The Next Hill to Climb   

Pro-life activists and organizations had urged the justices to also decide whether the 2000 Supreme Court case Hill v. Colorado, which upheld a more limited buffer-zone law in Colorado, applies to the Massachusetts law.

Justice Scalia, in his opinion, also argued that the court should have addressed the Hill decision, which has been criticized by a range of legal scholars.

Predicted the Life Legal Defense Foundation’s Millard, “Going forward, there will be a continuing debate on how this decision impacts other buffer-zone/bubble-zone laws, such as the one upheld in Hill.”

Joan Frawley Desmond is the Register’s senior editor.