The Supreme Court gave abortion protesters a win this morning in McCullen v. Coakley, but it was not the knockout blow against all clinic buffer zones that they had hoped for. While the Justices all agreed on the result, they were bitterly divided on their reasoning, with the majority opinion relatively narrow compared to the concurrences of Justices Scalia, Thomas, Kennedy, and Alito.
The Court was being asked to overrule a 2000 precedent that upheld buffer zones making it illegal to approach within eight feet of people at reproductive health clinics for the purpose of counseling, education, or protesting. (This applied anywhere within 100 feet of the clinic.) Hill v. Colorado had analyzed that state’s law as a content-neutral regulation of speech that was reasonable in light of the importance of protecting unwilling people’s right to avoid unwanted conversations and their right to pass without obstruction. The “content-neutral” part is important, because that means it was subject to a lower level of scrutiny under the First Amendment, which made it easier to pass constitutional muster.
Massachusetts had a law like Colorado’s which, after several years, legislators realized was not working as effectively as they had intended. So they adopted a new law creating a static 35-foot buffer zone around such clinics (with exceptions for employees, patients and others with business there, and people passing through on their way somewhere else). (PFAW Foundation had joined an amicus brief supporting the law’s constitutionality.)
Even with the law in place, anti-choice advocates were able to distribute literature to individuals approaching clinics, as well as to have quiet conversations with them. Nevertheless, these advocates urged the Court to consider the Massachusetts law as an impermissible content-based regulation, subject to a much higher level of scrutiny, and strike it down as distinguishable from Hill. Even further, they asked the Court to overrule Hill completely. This seemed like a real possibility, given that Kennedy, Scalia, and Thomas had dissented in Hill, and since Roberts and Alito had joined the Court since then.
However, that isn’t what happened. Instead, the four moderates joined a majority opinion written by the Chief Justice reaffirming that buffer zones at reproductive health clinics are not necessarily content-based speech restrictions, nor was this one in particular. The ruling also reaffirmed the state’s interests in adopting buffer zones: maintaining public safety on streets and sidewalks and preserving access to reproductive healthcare clinics.
That said, the Court still struck the law down. Noting that the text of the law makes it a crime to stand on a “public way or sidewalk” within the buffer zone, Roberts and the majority expressed concern that public ways and sidewalks are areas that “occupy a special position in terms of First Amendment protection because of their historic role as sites for discussion and debate.” They ruled that even under the diminished scrutiny of content-neutral regulations, this particular law burdened substantially more speech than necessary to achieve those goals. State law, they noted, prohibits the deliberate blocking of clinics. To address harassment, Massachusetts could adopt laws like those elsewhere that (for instance) make it a crime to follow and harass a person within 15 feet of a clinic. In addition, civil injunctions against specific individuals and their conduct would raise fewer concerns than a blanket law covering everyone. The Court basically said that the state needs to show that it has tried a number of other, less restrictive ways to achieve its goals without success before its law can be upheld.
Justice Scalia, on the other hand, would have demolished all buffer zones protecting women seeking access to reproductive health clinics. In a concurrence joined by Thomas and Kennedy, the three Hill dissenters would have applied the highest level of scrutiny to the law. They wrote that the majority’s ruling “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. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.” Keep in mind that Chief Justice Rehnquist, hardly a supporter of abortion rights, was part of the Hill majority.
But while today’s Court did not overrule Hill, it didn’t exactly reinforce it, either. In fact, they barely mentioned Hill at all. That may not be a positive sign, given the Chief Justice’s penchant for gradually undermining precedents he doesn’t like rather than immediately overturning them, part of what some have called his “long game.”
So what is the status of other buffer zone laws, ones that aren’t structured like the Massachusetts law? What about the Colorado law itself that was upheld in Hill? Would it be upheld today? While it is hard to know for sure, it may be on shakier ground than it was yesterday.