U.S. Supreme Court Invalidates Massachusetts Abortion Clinic Buffer Zone Law

By: Evan J. Seeman and Dwight Merriam, Robinson & Cole, LLP

In a unanimous decision, the U.S. Supreme Court has stricken as a violation of the First Amendment to the U.S. Constitution a Massachusetts statute making it a crime to knowingly stand on a “public way or sidewalk” within 35 feet of an entrance or driveway to any place (other than a hospital) where abortions are performed. The statute was modeled after another similar statute in Colorado, which the Supreme Court upheld in Hill v. Colorado, 530 U.S. 703 (2000). While the Supreme Court found that the Massachusetts statute was content neutral, it concluded that the Commonwealth of Massachusetts had available to it alternative means that were more narrowly tailored to achieve its governmental interest ─ public safety ─ than enacting the buffer zone law, which burdens substantially more speech that necessary to further the government’s legitimate interests.

While some individuals outside of Massachusetts’ abortion clinics can be described as protestors utilizing aggressive methods, including face-to-face confrontation, the petitioners instead “attempt to engage women approaching the clinics in what they call ‘sidewalk counseling,’ which involved offering information about alternatives to abortion and help pursuing those options.” The petitioners “consider it essential to maintain a caring demeanor, a calm tone of voice, and direct eye contact during these exchanges.” They believe that this approach is much more effective to dissuade women from having abortions than using confrontational methods such as shouting or brandishing signs.

The petitioners claim that at three specific abortion clinics, the buffer zone law has significantly hampered their “sidewalk counseling” efforts. While they are able to still conduct some counseling and distribute some literature outside the buffer zones, their conversations are far fewer and their ability to distribute literature far reduced. They sued, alleging that the buffer zone law violated the First and Fourteenth Amendments to the Constitution, but the U.S. District Court for the District of Massachusetts and the U.S. Court of Appeals for the First Circuit rejected these challenges. They found that the law was a reasonable “time, place, and manner” regulation and that petitioners had “ample alternative channels of communication.”

The Supreme Court reversed the decision of the First Circuit, concluding that the buffer zone law, though content-neutral, is not “narrowly tailored” to achieve Massachusetts’ public safety interest outside abortion clinics:

Petitioners wish to converse with their fellow citizens about an important subject on the public streets and sidewalks ─ sites that have hosted discussions about the issues of the day throughout history. Respondents assert undeniably significant interests in maintaining public safety on those same streets and sidewalks, as well as in preserving access to adjacent healthcare facilities. But here the Commonwealth has pursued those interests by the extreme step of closing 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. The Commonwealth may not do that consistent with the First Amendment.

Petitioners contended that the buffer zone law was content-based for two reasons. First, they claimed that the law “discriminates against abortion-related speech because it established buffer zones only at clinics that perform abortions.” The Supreme Court rejected this argument because the law does not draw content based distinctions, even though “by limiting the buffer zones to abortion clinics, the Act has the ‘inevitable effect’ of restricting abortion-related speech more than speech on other subjects.” “[A] facially neutral law does not become content based simply because it may disproportionately affect speech on certain topics,” since “[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” The Supreme Court noted that “[t]he Act would be content based if it required ‘enforcement authorities’ to ‘examine the content of the message that is conveyed to determine whether’ a violation has occurred. . . . But it does not. Whether petitioners violate the Act ‘depends’ not ‘on what they say,’ . . . but simply on where they say it. Indeed, petitioners can violate the Act merely by standing in a buffer zone, without displaying a sign or uttering a word.”

Second, the petitioners argued that the buffer zone law was content based because it exempted four classes of individuals from the effects of the law, including employees of abortion clinics. Petitioners contended that by exempting clinic employees from complying with the law, the state favored one side in the abortion debate over the other, constituting viewpoint discrimination. The Supreme Court also rejected this argument: “There is nothing inherently suspect about providing some kind of exemption to allow individuals who work at the clinics to enter or remain within the buffer zone,” and noted that the exemption also extends to employees such as maintenance workers and security guards.

Even though the buffer zone law was content neutral, it burdened substantially more speech than necessary to further the government’s legitimate interests. The Supreme Court described the burden on the petitioners’ free speech as compromising their “ability to initiate the close, personal conversations they view as essential to sidewalk counseling.” One petitioner explained that “she often cannot distinguish patients from passerby outside the Boston clinic in time to initiate a conversation before they enter the buffer zone. . . . . And even when she does manage to begin a discussion outside the zone, she must stop abruptly at its painted border, which she believes causes her to appear untrustworthy or suspicious . . . .” Due to these limitations, this petitioner “is often reduced to raising her voice at patients from outside the zone – a mode of communication sharply at odds with the compassionate message she wishes to convey,” and she is severely hampered from distributing literature to patients because the buffer zone pushes her so far back that there is little opportunity for her reach patients before entering the zone. In short, the law deprives petitioners of their two primary methods to communicate with patients.

The Supreme Court found that there were alternative options available to Massachusetts to allow it to further its legitimate interests while imposing less of a burden on free speech. Some alternatives the Supreme Court noted include enforcing generic criminal statutes or enacting new law, such as the federal Freedom of Access to Clinic Entrances Act of 1994, 18 U.S.C. § 248(a)(1), to impose civil and criminal penalties against anyone who “by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any other person or any class of persons from, obtaining or providing reproductive health services.” It also pointed out an ordinance adopted by New York City “that not only prohibits obstructing access to a clinic, but also makes it a crime ‘to follow and harass another person within 15 feet of the premises of a reproductive health care facility.’” Targeted injunctions, the Supreme Court stated, could serve as “alternatives to broad, prophylactic measures,” such as the buffer zone law.

Further, “[s]ome localities . . . have ordinances that require crowds blocking a clinic entrance to disperse when ordered to do so by the police, and that forbid the individuals to reassemble within a certain distance of the clinic for a certain period.” Massachusetts already had in place similar ordinances to address congestion/obstruction for certain areas, including abortion clinics. In short, Massachusetts, “has not shown that it seriously undertook to address the problem with less intrusive tools readily available to it. Nor has it shown that it considered different methods that other jurisdictions have found effective.”

The Supreme Court’s decision in McCullen v. Coaxley, No. 12-1168 (2014) is available here. Justice Scalia authored a concurring opinion joined by Justices Kennedy and Thomas. Justice Alito concurred in a separate opinion.

What is noteworthy about this case is the Supreme Court’s analysis of alternatives that could still further Massachusetts’ legitimate interests while impinging less on free speech. Under the Religious Land Use and Institutionalized Persons Act’s (RLUIPA) substantial burden provision, municipalities often raise public health and safety as governmental interests that justify an alleged substantial burden on religious exercise. Notably, the Supreme Court found that enforcement of existing generic criminal laws and ordinances were alternatives that Massachusetts should have considered before enacting the sweeping buffer zone law. Might religious institutions use the Supreme Court’s alternatives analysis to argue that municipalities should first consider enforcing existing criminal laws and other ordinances – particularly if the claimed governmental interest is public health and safety – under RLUIPA’s more exacting “least restrictive means” requirement?

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