Massachusetts Enacts Temporary Buffer-Zone Law in Response to Supreme Court Ruling

While peaceful pro-life activism could be unimpeded by the new law, concern exists that it may not be fairly enforced.

Mass Statehouse
Mass Statehouse (photo: Shutterstock)

BOSTON — A new Massachusetts abortion-access law signed by Gov. Deval Patrick on July 30 creates a temporary buffer zone for potential unruly protesters, but it is not expected to interfere with peaceful pro-life advocacy at abortion facilities — if the law is fairly enforced.

However, concern exists that vagaries in the new law could end up restricting pro-life speech just as much as the previous buffer-zone law struck down by the U.S. Supreme Court.

The temporary buffer-zone law, known as the “Act to Promote Public Safety and Protect Access to Reproductive Health-Care Facilities,” went into effect immediately upon Patrick’s signature. Massachusetts lawmakers rushed to pass the legislation after the U.S. Supreme Court’s June 26 ruling in McCullen v. Coakley that found the state’s 2007 law requiring a 35-foot buffer zone around abortion businesses was a violation of the First Amendment right to freedom of expression. The new law, while allowing pro-life demonstrators and sidewalk counselors to operate in the immediate vicinity of abortion facilities, empowers police to “order the immediate withdrawal” of one or more individuals who have “substantially impeded access” to a person’s ability to enter or depart from  the facility. A law enforcement officer can then ban the individuals from coming within 25 feet of the facility “for eight hours or until the close of business.”

Violators of the dispersal order face a minimum $500 fine or three months in a jail, and repeat violators face between $500 to $5,000 in fines and the possibility of up to two and a half years in jail. The law has more serious penalties of up to $50,000 in fines or five years in jail for a “person who, by force, physical act or threat of force, intentionally injures or intimidates or attempts to injure or intimidate a person.”

Patrick said he was signing the bill (S. 2283) to guarantee “women seeking to access reproductive-health facilities can do so safely and without harassment and that the employees of those facilities can arrive at work each day without fear of harm.”

Marty Walz, President and CEO of Planned Parenthood League of Massachusetts, said in a statement that the law is “essential for protecting safe and unimpeded access to our health centers.”

Anne Fox, president of Massachusetts Citizens for Life, said the new law “essentially creates another buffer zone with much-worse penalties. It is very vague, and we believe it could catch almost anybody.”


Uncertain Legal Effects

However, the law’s practical impact on pro-life prayer and sidewalk counseling at Massachusetts abortion businesses could range from benign to harmful.

“I think if the law is fairly enforced, it will have no effect whatsoever on my clients,” Michael DePrimo, attorney for Eleanor McCullen, the sidewalk counselor behind the successful challenge of the previous buffer zone. “My clients are peaceful: They don’t obstruct, they don’t impede, and they don’t detain anybody. They are out there simply to offer alternatives to abortion and to provide the help that women may find they need in a very difficult time.”

DePrimo said he has several concerns with the law.

“First, I think some of the terms are vague. The term ‘detain’ is vague, the term ‘physical act’ is vague, and I’m especially concerned that law enforcement is allowed to restrict a person’s physical movement without due process of the law.”

DePrimo said that police have the inherent authority to disperse people from an area if they are causing a disturbance or blocking an entrance. But he said he didn’t know of any other law where the police had the power to tell people to stand 25 feet away behind a painted line for eight hours, saying it, in effect, allows the police to issue temporary restraining orders, which typically only a court can do.

“My view is that the U.S. Constitution and the Massachusetts Declaration of Rights protect freedom of movement,” he said.

“I think this particular law gives power to law enforcement officials that the U.S. Constitution simply does not permit.”

DePrimo said he is going to wait and see how the law and its temporary buffer zone actually are enforced before considering any legal challenge. But he said the law, to him, appears motivated by politics more than patient safety.

He said he asked Planned Parenthood to show evidence of harassment, obstruction, intimidation or other examples of wrongdoing from the video footage taken at its facilities. “And yet, they have never been able, despite their rhetoric … to produce any recordings that demonstrate any type of illegal conduct.”

“My clients don’t have any problem with a law that protects the patients going into abortion facilities,” he said. “But if the law is used to restrict or repress constitutionally protected speech, at that point, we will be concerned and possibly file another lawsuit in federal court.”


Peaceful Presence

Fox said pro-life advocates praying or doing sidewalk counseling at the abortion facilities self-police. She said the last thing they want is anyone coming to the facility shouting at women or displaying any kind of aggressive behavior.

“They just don’t do that,” she said, explaining that those behaviors would be completely counterproductive to a sidewalk counselor’s best practices for “loving and caring” outreach.

“What’s the point [of yelling]? Because if you yell, that woman is going to kill her baby,” she said. “But if you are kind and you are giving off helpful vibes — I mean Eleanor is there at the crack of dawn, three days a week and in the dead of winter. Why should she waste her time [if she didn’t care]?”

Fox said it is unclear to her how police would practically enforce the law if they did receive a complaint: Responding officers theoretically might order one person behind the line but are not required to limit that to one person.

“They could also just say, ‘Let’s put them all behind the line today and then take care of tomorrow.’”

“Nobody knows what it’s really going to do,” she said. “And one of the basic rules for writing a law is that you don’t write a law that does what you don’t know it is going to do.”

Back in Court?

James Driscoll, executive director of the Massachusetts Catholic Conference, believes it is likely that the new law will end up back in court for free-speech violations.

“To rush this thing through without being really vetted by both the proponents and opponents, without seeing what the ramifications will be, is really unfortunate,” he said.

Driscoll said the Church wants to see free speech protected, so people are free to have an opinion and “talk about what the alternatives are for abortion.”

“That’s the major concern, not only for Catholics, but also for any pro-life organization.”

Driscoll said the state should have waited at least one year to evaluate the impact of the rules set by the U.S. Supreme Court, instead of rushing to enact a new law right before the end of the session on July 31.

“It’s quite possible that nothing would have needed to be done,” he said. “But this was a rush to fix something that wasn’t broken.”

Peter Jesserer Smith is a Register staff writer.