by Gary Taylor
McCullen v. Coakley
(US Supreme Court, June 26, 2014)
In 2007, Massachusetts amended its Reproductive Health Care Facilities Act to make it a crime to knowingly stand on a public way or sidewalk within 35 feet of an entrance or driveway to any “reproductive health care facility,” defined as “a place, other than within or upon the grounds of a hospital, where abortions are offered or performed.” the Act exempted four classes of individuals, including “employees or agents of such facility acting within the scope of their employment.” Another provision of the Act makes it a crime for the knowing obstruction of access to a reproductive health care facility. McCullen and others who attempt to engage women approaching Massachusetts abortion clinics in “sidewalk counseling” – offering information about alternatives to abortion and help in pursuing those options – raised First Amendment claims, arguing that the buffer zone displaced them from their positions outside clinics which considerably hampered their counseling efforts. Their attempts to communicate with patients are further hampered by clinic escorts who accompany arriving patients through the buffer zones to the clinic entrances.
The US Supreme Court held that the Act violates the First Amendment. First the Court noted that “public ways” and “sidewalks” are traditional public fora which have traditionally been open for speech activities. The government’s ability to regulated speech in traditional public fora is very limited, where traditional time, place and manner restrictions on speech are allowed only if the restrictions (1) are justified without reference to the content of the regulated speech, (2) are narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of the information.
Content based. The Court determined that the restrictions were neither content nor viewpoint based. Just because the buffer zones were drawn specifically around abortion clinics does not mean the restriction was directed, on its face, at a specific message. It was adopted in response to a record of crowding, obstruction and even violence outside abortion clinics that was not present in other locations. Violation of the Act does not depend on what individuals say, but rather where they say it. The Act’s purposes include protecting public health, safety and welfare, and unobstructed public use of streets and sidewalks. Furthermore, the exemption for clinic employees was not an attempt to favor one viewpoint over another, but rather was necessary to allow them to enter and exit the clinics in the performance of their duties.
Narrowly tailored. The Court determined that the buffer zone restriction was not narrowly tailored, in that it burdened substantially more speech than is necessary to further the government’s legitimate interests. While it served the interest in public safety on sidewalks, it deprived the petitioners of their two primary methods of communicating their message: close personal conversations with arriving patients and distribution of literature. Those forms of expression have historically been closely associated with the transmission of ideas. Petitioners are not merely protesters; they seek not only to express their opposition to abortion but also to engage in personal conversations with women about various alternatives to abortion. “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 Court suggested that Massachusetts could adopt legislation similar to the federal Freedom of Access to Clinic Entrances Act of 1994, which prohibits obstructing, intimidating, or interfering with persons obtaining or providing reproductive health services. The Court also noted that the problems the legislation sought to address were principally limited to one Boston clinic on Saturday mornings. The police are capable of singling out those who harass or intimidate patients, and so the restrictions in the Act burden substantially more speech than necessary to achieve the government’s public safety interests. The government must demonstrate that such alternative measures that would burden substantially less speech would fail, not simply that the chosen route (buffer zones) is easier to enforce.