This post updates my January 15, 2014, post on the oral argument in McCullen v. Coakley:
The State of Massachusetts enacted legislation which barred all individuals, except for certain municipal agents and facility workers “acting within the scope of their employment,” from approaching closer than 35 feet to any abortion clinic entrance, exit, or driveway. Violations of the statute could be punished by criminal penalties ranging from three months imprisonment for a first offense to a maximum of two and one-half years for subsequent offenses. In McCullen v. Coakley, No. 12-1168 (June 26, 2014), the Supreme Court unanimously struck down the statute as violative of the First Amendment. Previously, a very different Supreme Court had upheld an 8 foot ban on approaching a person without her consent within 100 feet from an entrance to any health care facility. Hill v. Colorado (2000) (6-3 vote; Stevens for the majority, Scalia (joined by Thomas) and Kennedy dissenting).
While the McCullen result was unanimous, the justices split 5 to 4 on why the Massachusetts statute was unconstitutional. The majority, in an opinion written by Chief Justice Roberts, and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, held that the statute was neither content nor viewpoint based (and thus not subject to strict scrutiny review), but nevertheless was invalid because it was not narrowly enough tailored, and burdened the free speech rights of the pro-life petitioners to express their opposition to abortion and to have conversations with women seeking to enter the clinics regarding alternatives to abortion. By contrast, Justice Scalia , joined by Justices Kennedy, Thomas, and Alito, saw the statute as content-based, aimed at anti-abortion speech, and would have held it unconstitutional as such. Indeed, Justice Scalia chided the majority for continuing to abridge the free-speech rights of pro-life speakers under an “abortion-speech-only jurisprudence” because of its refusal to adopt a strict scrutiny standard of review.
The outcome of McCullen was not a surprise based on the oral argument held on January 15, 2014. At that argument, several of the justices raised significant issues regarding the constitutionality of the ban. First, Justice Alito contended that the exemption for clinic workers made the statute one which was content-based because clinic workers within the buffer zone would be free to say that the clinic was safe, while pro-life advocates would not be permitted to contend that the clinic was unsafe [See Oral Argument Transcript ("Tr.") at 25, 37-38, 40]. Justices Scalia and Kennedy echoed this point in their comments. [Tr. 39]. This view was rejected in Chief Justice Roberts’ majority opinion, which characterized the exemption for clinic employees as one which “simply” allowed the employees “to do their jobs.”
Second, while the state argued that a long history of congestion and conflict around abortion clinics in Massachusetts justified the 35 foot buffer zone, the only specific instances of conflict offered by the defenders of the statute related to conflict caused by two different pro-choice groups who vocally attacked the pro-life individuals who were attempting to talk women approaching an abortion clinic from going through with an abortion. [Tr. 31]. In addition, in arguing that the buffer zone should be struck down, the lawyer for the pro-life advocate characterized the only problem as being that of “one clinic, one day, one time – Saturday mornings in Boston.” [Tr. 8]. Opposing counsel contended instead that a survey done by a pro-choice group indicated that six of the ten clinics in Massachusetts had experienced significant problems, but she conceded that two of the ten had not.
Third, several of the justices raised what became the focus of the majority opinion — whether the 35 foot buffer zone was narrowly tailored to address the problems clinics in Massachusetts had actually experienced. Justice Scalia, for example, noted that there were laws against obstructing Massachusetts abortion clinics and that the last prosecution under the state laws addressing obstruction dated back to 1997. [Tr. 8]. Moreover, Justice Kagan questioned both whether the buffer zone should be limited to weekends [Tr. 42], or should be limited to less than 35 feet, which she noted to be “a lot of space.” [Tr. 30]. By contrast, Justice Sotomayor (who nevertheless joined the majority opinion) noted that 35 feet was only “two car lengths.” [Tr.30]. The majority opinion of Chief Justice Roberts made much of this point, noting the availability of remedies for violence, obstruction of entry into a clinic, or other harassment in existing Massachusetts and federal laws, as well as in a New York City Ordinance which Massachusetts could enact. Moreover, to the contention that the buffer zones made the job of the police “so much easier,” Chief Justice Roberts said “Of course they would. But that is not enough to satisfy the First Amendment.”
Fourth, there was evidence of the buffer zone’s significant impact on the effectiveness of the advocacy being pursued by pro-life individuals. Justice Kennedy, for example, pointed out at the oral argument that the contention had been made “that an elderly lady… was quite successful and had meaningful communication with over 100 women going into the clinic, before this law, [but] was unable to talk to even one after this law.” [Tr. 35]. Again,the majority opinion picked up on this point as well, noting how the efforts of the pro-life leaders had been successful before establishment of the buffer zones, but had sustained a “precipitous decline” thereafter, and had made distribution of pro-life literature “substantially more difficult.”
Fifth, on two occasions, Justice Scalia contended, contrary to the position taken by those attempting to uphold the buffer zone, that the case was “a counseling case, not a…protest case.” [Tr. 29, 43]. Justice Kennedy similarly challenged the defenders of law, asking “Do you want me to write an opinion and say there’s no free-speech right to quietly converse on an issue of public importance?” [Tr. 35]. In this regard, it is significant that the majority opinion states that “Petitioners are not protestors. They seek not merely to express their opposition to abortion, but to inform women of various alternatives and to provide help in pursuing them. Petitioners believe that they can accomplish this objective only through personal, caring, consensual conversations.” In addition, Chief Justice Roberts’ opinion cites earlier cases for the proposition that ” ‘one-on-one communication’ is ‘the most effective, fundamental, and perhaps economical avenue of political discourse’.”
As I noted in my prior post on the oral argument in McCullen, it was unlikely, given Chief Justice Roberts’ reluctance to overrule prior precedent, that Hill v. Colorado (which was scarcely mentioned at the oral argument and only in passing in the majority opinion) would be overruled. Instead, as I also predicted at that time, the Chief Justice adopted a middle ground. Thus, the majority decided to send the Massachusetts legislature back to the drawing board, to attempt to draft a more narrowly tailored statute addressing the particular problems actually experienced by Massachusetts abortion clinics. The concurring justices would have gone far further. Justice Scalia and two others joining his opinion would have overruled the Hill decision.
It is important to keep in mind the extent to which the result in McCullen is consistent with the approach taken in recent years by the Roberts Court on First Amendment issues. The Court has been a vigorous advocate for a full-throated reading of the First Amendment, previously striking down laws, for example, banning violent video games and videos showing cruelty to animals, as well as one penalizing “stolen valor.” As such, the unanimous vote to strike down the Massachusetts buffer zone statute was predictable and consistent with current precedent on the wide protections accorded speech under the First Amendment.
Moreover, the approach taken is a familiar one for Chief Justice Roberts, who repeatedly in this and earlier Supreme Court Terms avoids in most instances sweeping decisions imposing hard and fast bright-line rules. The key point to take from the McCullen decision is that all nine justices voted to protect the free speech rights of peaceful pro-life advocates counseling women approaching a clinic to choose an option other than abortion with respect to their pregnancies. So long as their advocacy remains peaceful, it will be protected, although a legislature after careful study of any problems presented may attempt under the majority opinion to impose some limit on approaching women seeking to enter a clinic to terminate their pregnancy. Whether the limits chosen will pass constitutional muster will undoubtedly generate more litigation.
Reference: For a discussion of Hill v. Colorado, see Edward F. Mannino, Shaping America: The Supreme Court and American Society (University of South Carolina Press, 2009), at 253-254.