Today, in McCullen v. Coakley, the Supreme Court struck down a Massachusetts statute that created a "buffer zone" enabling women to access reproductive health clinics without interference. As with the ruling on the EPA and Greenhouse gases from earlier in the week, however, the decision could have been much worse. While the Court held that the Massachusetts law was not consistent with the First Amendment, it did so in a way that should allow states to protect women who seek reproductive health care from having their clinic access blocked or impeded by protesters.
There is no question that the 35-foot buffer zone around clinics created by the statute restricts speech. This does not, however, necessarily mean that a buffer zone violates the First Amendment. The state can restrict speech using "space, time, and manner" restrictions. (You have the right to express your political views, but do not necessarily have the right to express them through a megaphone in a residential neighborhood at 3 A.M.) Indeed, in 2000, the Court upheld Colorado's buffer zone law in Hill v. Colorado. In order to be consistent with the First Amendment, restrictions like buffer zones need to be viewpoint-neutral, and narrowly tailored to a legitimate state interest.
The Court's judgment that the buffer zone was unconstitutional was unanimous, but on the rationale, the Court split five to four. The majority of the Court, with Chief Justice Roberts speaking for the Court's four Democratic nominees, agreed that the Massachusetts law advanced a legitimate state interest, protecting women seeking access to medical care. Importantly, and correctly, the majority also found that the regulation was viewpoint-neutral. The statute applies to all speech equally, the restrictions are clearly related to neutral and legitimate objectives, and the exemptions created by the statute for clinic employees and patients exist for obvious reasons unrelated to a desire to suppress speech. The objections expressed in dissents by Justices Antonin Scalia and Samuel Alito focus on this point, but Roberts's rebuttals are convincing. In particular, the argument made by the dissenters that the law discriminates based on viewpoint by focusing on reproductive health clinics ignores the fact that protesters do not try to block access to other kinds of health care facilities. The dissenters, in these arguments, are arguing that the state needs to ban more speech than is necessary for its objectives, which cannot be right.
Where the statute fails, according to the majority, is on the narrow tailoring part of the analysis. According to the Court, Massachusetts could—as many other states have—protect clinic access without creating a buffer zone that extends onto public sidewalks. According to Roberts, "the Commonwealth has available to it a variety of approaches that appear capable of serving its interests, without excluding individuals from areas historically open for speech and debate." The Supreme Court tends not to be kind to ouliers and, to the majority, the relative novelty of the Massachuetts law compared to other buffer zone regulations appeared to be fatal.
I am not fully persuaded by the majority's contention that the Massachusetts law is unconstitutional. Some of the arguments in the opinion, such as the assumption that the anti-abortion activists challenging the law as "counselors" rather than "protesters," are problematic, and Massachusetts had tried a narrower approach that had not been successful before, suggesting that it deserved more leeway to legislate in this area.
Nonetheless, the balance the opinion strikes between the state's interest in protecting access to reproductive health clinics and First Amendment rights is not unreasonable, and should not unduly restrict states going forward. Particularly important is that the fact that the majority did not overrule Hill v. Colorado, and indeed strongly suggests that most of the common means states use to protect clinic access are constitutional. States still have the tools to protect women's access to reproductive care, and it's important that they continue to exercise it.
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