The Supreme Court unanimously struck down Massachusetts’ abortion buffer zone law on Thursday, ruling in favor of anti-choice protesters who argued that being required to stay 35 feet away from clinic entrances is a violation of their freedom of speech. The decision rolls back a proactive policy intended to safeguard women’s access to reproductive health care in the face of persistent harassment and intimidation from abortion opponents.
“By its very terms, the Act restricts access to ‘public way[s]’ and ‘sidewalk[s],’ places that have traditionally been open for speech activities and that the Court has accordingly labeled ‘traditional public fora,’ “ the opinion states. “The buffer zones burden substantially more speech than necessary to achieve the Commonwealth’s asserted interests.”
Reproductive rights advocates had been hoping the justices would uphold the policy, which they say has gone a long way to ensure that woman can safely enter abortion clinics. More than 30 pro-choice organizations filed an amicus brief urging the Supreme Court to rule in favor of Massachusetts’ buffer zone, which was approved in response to a mass shooting at several of the state’s abortion clinics.
According to the National Abortion Federation (NAF), which closely tracks threats and violence against abortion providers across the country, buffer zones have had a measurable impact in the areas where they’re in place. A recent survey conducted among NAF’s member organizations found that 51 percent of facilities in areas with buffer zones reported a decrease in criminal facility after the policy was enacted, and 75 percent of them said it helped improve patients’ and staff members’ ability to access the clinic.
“Buffer zones make a huge difference,” Ashley Hartman, who holds a master’s in public health from Ohio State University and has volunteered as a clinic escort in the Cleveland area, said in an interview with ThinkProgress. “The reality is, if you’ve ever been outside a clinic, it’s not about exchanging ideas… Protesting is about creating the feeling of intimidation, so the more distance you can have from them, the less powerful that intimidation is.”
Now that the policy has been struck down, however, the women visiting reproductive health facilities in Massachusetts won’t be able to rely on that distance. Protesters will be allowed to crowd the sidewalks around the clinic and speak directly to patients — something that can make people feel uncomfortable enough to avoid the clinic and skip out on the health services they need.
“The fact that we even have clinic escorts is a good signifier that we need things like buffer zones,” Hartman pointed out. Clinic escorts like her are typically responsible for providing a friendly face to women who are nervous to walk past protesters, often working to distract them from what abortion opponents are shouting at them. “We wouldn’t need escorts if walking into a clinic didn’t involve that type of harassment.”
Thursday’s decision may put other areas’ buffer zones in jeopardy, too. Now that Massachusetts’ policy has been invalidated, it could pave the way for opponents to strike down similar laws on similar grounds. In practical terms, that means it’s probably about to get harder for many women to access clinics.
“We feel so strongly that abortion access shouldn’t depend on your income, or whether you have a car, or whether you have the right kind of health insurance,” Alicia Johnson, a Boston resident who volunteers with the Eastern Massachusetts Abortion Fund, a nonprofit group that helps low-income women pay for their reproductive care, said. “Once all of those things line up into place, you shouldn’t also have to face protesters who are trying to scare you away from the health center once you get there.”
Buffer zones are not entirely unusual policies. There are already buffer zones around funerals and polling places. Ironically, the Supreme Court itself has a large buffer zone around it to prevent protesters from picketing on its 252-by-98-foot plaza, requiring demonstrations to take place on the sidewalk.
The opinion in the case acknowledges that states have a legitimate interest in passing laws to preserve access to reproductive health facilities. They’ll just have to figure out how to do it with different policies that “burden substantially less speech.” The justices write that Massachusetts hadn’t tried out enough alternatives before enacting a 35-foot zone, and could have proposed narrower solutions like passing local traffic ordinances to prevent the obstruction of clinic driveways.