U.S. Supreme Court

35-foot buffer zone for abortion-clinic protests violates First Amendment, SCOTUS rules

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The U.S. Supreme Court has ruled that a Massachusetts law banning abortion-clinic protests within a 35-foot buffer zone violates the First Amendment rights of protesters.

Chief Justice John G. Roberts Jr. wrote the opinion (PDF) for the court, which was unanimous in the judgment. The 35-foot buffer zone, he said, isn’t narrowly tailored to carry out the state’s aims of ensuring safety, preventing harassment and keeping clinic entrances free of obstruction.

The 2007 Massachusetts law generally barred people from public sidewalks and public ways within 35 feet of abortion clinics. Among those exempted were people entering the clinics, employees, police, and people who happened to be walking.

The lead plaintiff was Eleanor McCullen, who said she wants to hold quiet conversations with women entering clinics to persuade them not to have an abortion. She testified that the buffer zones made her sidewalk counseling more difficult. She can’t distinguish protesters from passersby from her distant vantage point, she said, and when she does counsel someone, she has to stop abruptly at the buffer-zone border, making her appear suspicious.

Massachusetts could enact different laws that are more narrowly tailored than the buffer-zone law to prevent harms, Roberts said. He pointed to a federal law that provides criminal and civil penalties for intentionally injuring, intimidating or interfering with a person obtaining reproductive health services. Another possible alternative, he said, is a New York law that makes it a crime to follow and harass another person within 15 feet of an abortion clinic.

Massachusetts “has available to it a variety of approaches that appear capable of serving its interests, without excluding individuals from areas histor­ically open for speech and debate,” Roberts wrote.

Justice Antonin Scalia concurred in the judgment in an opinion joined by Justices Anthony M. Kennedy and Clarence Thomas. Scalia objected to Roberts’ conclusion that the buffer-zone law was not content-based and was not subject to strict scrutiny. The decision to strike down the Massachusetts law “is certainly attractive to those of us who oppose an abortion speech edition of the First Amendment,” Scalia wrote. “But think again. This is an opinion that has Something for Everyone, and the more significant portion [finding no need for strict scrutiny] continues the onward march of abortion-speech-only jurisprudence.”

“Having eagerly volunteered to take on the level-of­ scrutiny question, the court provides the wrong answer,” Scalia wrote.

The case is McCullen v. Coakley.

Prior coverage:

ABAJournal.com: “SCOTUS to consider whether 35-foot abortion-clinic buffer zone impedes free speech”

ABAJournal.com: “Chief justice asks no questions in challenge to abortion-clinic buffer zones”

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