The U.S. Supreme Court invalidated buffer zones around Massachusetts abortion clinics Thursday morning, in a ruling that held a Massachusetts law that effectively barred anti-choice activists from protesting less than 35 feet from a clinic was unconstitutional. The ruling was a blow for the reproductive rights community, but its outcome wasn’t a surprise to many.
The Massachusetts law was among the nation’s broadest in barring most individuals from standing less than 35 feet from an abortion clinic. As the court recognizes in McCullen v. Coakley, this law was instituted to protect the public health and safety of both patients and employees at the clinics, particularly from stalking and harassment that has turned violent in many instances. In Massachusetts, this violence included clinic shootings less than 20 years ago that killed 2 employees and wounded 5 others. Harassment and stalking around clinics can also dissuade many individuals from visiting clinics altogether.
But narrower laws in Colorado and a number of cities and localities could survive the majority’s relatively narrow ruling, led by Chief Justice John G. Roberts. While the four justices who wrote separate concurring opinions would take a hatchet to all restrictions surrounding abortion clinics, the five who signed onto the majority opinion applied a scalpel that may not necessarily affect many of the other existing laws.
“This really was very narrowly crafted to Massachusetts,” said National Abortion Federation President Vicki Saporta.
The court rejected the assertion of the four concurring justices. While these justices would have struck down Massachusetts’ law as inherently disfavoring anti-abortion speech, the five-justice majority held instead that the law could not punish such a broad swath of conduct.
“The buffer zones burden substantially more speech than necessary to achieve the Commonwealth’s asserted interests,” Chief Justice John G. Roberts wrote for the majority, calling Massachusetts’ law “exceptional” among all 50 states (while also incorrectly suggesting that Massachusetts is the only state with a fixed buffer zone). To elaborate on this point, it cites several other laws that it presumably would uphold, seemingly because they punish particular types of conduct rather than barring everybody within a certain distance. Punishing “harassment,” for example, would be permissible. It cites as an example a New York City law that creates a protected zone of 15 feet, but specifically prohibits “follow[ing] and harass[ing]” another person within that protected distance. If it wanted to protect against physical violence, the court suggests it could pass a law similar to the federal Freedom of Access to Clinic Entrances Act of 1994 (FACE Act), which punishes ‘physical obstruction,” “injury,” and “intimidation.”
By the Guttmacher Institute’s count, there are at least 12 other cities whose buffer zone laws may be challenged in light of today’s ruling. But many other laws, including Colorado’s “bubble zone” law that prohibits individuals from getting within a certain distance of an abortion patient, are more specific about the types of conduct they prohibit, and thus might very well survive the Supreme Court’s new test.
Chicago’s “bubble zone” law, for example, bars individuals from getting closer than 8 feet to someone entering an abortion clinic with the intent of handing them a leaflet or speaking to them without their consent. It is unclear whether the court would deem this close enough to “harassment” or another harm the state is authorized to prevent. And it is unclear whether another similar law with a different sized buffer zone would survive scrutiny. But the Court is clear that it favors more specificity in these laws.
The Massachusetts law arose from a failed attempt at protecting abortion clinic patients and staff. In fact, Massachusetts used to have a narrower law that was deemed wholly ineffective. That law prohibited individuals from getting closer than six feet to a person entering an abortion clinic to counsel or persuade that person without their consent. But even police officials testified that this moving buffer zone, often known as a “floating” or “bubble” zone was nearly impossible to enforce, and that onerous crowds were collecting around the edges of the prohibited zone.
To better protect the safety of those inside the clinic, Massachusetts passed the 35-foot buffer zone. This new law prohibits anyone from entering that zone, with the exception of passersby, patients, employees, and law enforcement personnel. And advocates say it’s the only thing that’s worked. To address similar problems of chaos, violence, and harassment in its state, New Hampshire just last month passed a buffer zone law that establishes a smaller zone — 25 feet — but with very similar language.
While McCullen will prevent Massachusetts and other states from using what they have determined is the most effective means to protect people entering these clinics, one thing that is clear from the rhetoric of the four concurring justices is that this ruling is about as narrow as one could reasonably expect from the current U.S. Supreme Court. In one of the concurring opinions, Justice Antonin Scalia lamented that even today’s ruling invalidating Massachusetts’ law on narrow grounds “carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents.”