Abortion Clinic Buffer-Zone Law Upended by High Court

WASHINGTON (CN) - Anti-abortion advocates persuaded the U.S. Supreme Court on Thursday to revive their challenge of a Massachusetts buffer-zone law.

The 30-page opinion insists that the challengers here, led by Eleanor McCullen, "are not protestors."

"They seek not merely to express their opposition to abortion, but to inform women of various alternatives and to provide help in pursuing them," Chief Justice John Roberts wrote for the essentially unanimous court. "Petitioners believe that they can accomplish this objective only through personal, caring, consensual conversations. And for good reason: It is easier to ignore a strained voice or a waving hand than a direct greeting or an outstretched arm. While the record indicates that petitioners have been able to have a number of quiet conversations outside the buffer zones, respondents have not refuted petitioners' testimony that the conversations have been far less frequent and far less successful since the buffer zones were instituted. It is thus no answer to say that petitioners can still be 'seen and heard' by women within the buffer zones. If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners' message."

The law makes it a crime to "knowingly enter or remain on a public way or sidewalk adjacent to a reproductive health care facility" within a 35-foot buffer zone. It also exempts clients and staff "acting within the scope of their employment."

After losing their facial challenge to the Massachusetts law in 2009, McCullen and six others unsuccessfully challenged the law as applied to clinics in Boston, Worcester and Springfield.

They argued that the law restricts the speech of "only those who wish to use public areas near abortion clinics to speak out about abortion from a different point of view."

A federal judge dismissed the case, however, and the 1st Circuit affirmed, saying states had the right "to take reasonable steps to ensure the safe passage of persons wishing to enter healthcare facilities."

Reversing that decision Thursday, the U.S. Supreme Court concluded that the statute violates the First Amendment because the statute is not sufficiently tailored to limit the burden on the protesters' speech.

"Although McCullen claims that she has persuaded about 80 women not to terminate their pregnancies since the 2007 amendment, she also says that she reaches 'far fewer people' than she did before the amendment," Roberts wrote.

The ruling also quotes two other protesters who joined McCullen in the lawsuit, Jean Zarrella and Nancy Clark.

Zarrella "estimated having about 100 successful interactions over the years before the 2007 amendment, but not a single one since," Roberts wrote. "And as for the Worcester clinic, Clark testified that 'only one woman out of 100 will make the effort to walk across [the street] to speak with [her]."

These burdens should not be downplayed, the court found.

"While the First Amendment does not guarantee a speaker the right to any particular form of expression, some forms - such as normal conversation and leafletting on a public sidewalk - have historically been more closely associated with the transmission of ideas than others," Roberts wrote.

"When the government makes it more difficult to engage in these modes of communication, it imposes an especially significant First Amendment burden," he added.

The court rejected claims by Massachusetts that less-restrictive alternatives to the buffer zone have been attempted to no avail.

"Given the vital First Amendment interests at stake, it is not enough for Massachusetts simply to say that other approaches have not worked," Roberts wrote.

Though the state "undeniably" has significant interests in maintaining public safety on its streets and sidewalks, as well as in preserving access to adjacent health care facilities, the court found it too "extreme" to close off a substantial portion of a traditional public forum to all speakers.

"It has done so without seriously addressing the problem through alternatives that leave the forum open for its time-honored purposes," Roberts wrote. "The commonwealth may not do that consistent with the First Amendment."

Justice Antonin Scalia concurred only in the judgment, joined by Justices Anthony Kennedy and Clarence Thomas.

"The gratuitous portion of today's opinion is Part III, which concludes - in seven pages of the purest dicta - that subsection (b) of the Massachusetts Reproductive Health Care Facilities Act is not specifically directed at speech opposing (or even concerning) abortion and hence need not meet the strict-scrutiny standard applicable to content-based speech regulations," Scalia wrote. "Inasmuch as Part IV holds that the act is unconstitutional because it does not survive the lesser level of scrutiny associated with content-neutral 'time, place, and manner' regulations, there is no principled reason for the majority to decide whether the statute is subject to strict scrutiny."

Justice Samuel Alito wrote his own opinion concurring in judgment.

"In this case, I do not think that it is possible to reach a judgment about the intent of the Massachusetts Legislature without taking into account the fact that the law that the Legislature enacted blatantly discriminates based on viewpoint," Alito wrote. "In light of this feature, as well as the overbreadth that the court identifies, it cannot be said, based on the present record, that the law would be content neutral even if the exemption for clinic employees and agents were excised. However, if the law were truly content neutral, I would agree with the court that the law would still be unconstitutional on the ground that it burdens more speech than is necessary to serve the commonwealth's asserted interests."

The remaining justices joined the lead opinion by the chief justice.

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