Outside Planned Parenthood’s clinic in downtown Boston, a painted yellow line swoops across the sidewalk and into the well-trafficked street, marking a 35-foot half-circle around the entrance. Most days, anti-abortion demonstrators gather on the edge of the line, holding signs and rosaries, and clutching bundles of pamphlets. As women approach the half-circle, the demonstrators spring into action. The goal is getting the women to pause and talk to them before they cross into the “buffer zone” on the other side of the line, which Massachusetts law declares a protest-free space.
The Supreme Court will hear oral arguments about the constitutionality of these buffer zones tomorrow, in McCullen v. Coakley. The arguments won’t tackle the polemical question of whether abortion should be available; instead, the justices will be asked to consider whether the buffer zones violate anti-abortion demonstrators’ First Amendment rights.
The petitioners are a small group of anti-choice demonstrators who claim that some of the women entering the clinic would welcome the information they have to offer. The buffer zones, they say, make it impossible for them to effectively convey their message, thus violating their freedom of speech.
The state of Massachusetts disagrees. Massachusetts Attorney General, Martha Coakley, argues that the buffer zone law strikes an appropriate equilibrium between the demonstrators’ free speech rights, and women’s ability to get an abortion without being subjected to harassment or violence.
The case will hinge, in large part, on whether the justices believe that Massachusetts’s history of violence against abortion clinics will repeat itself if the law is nullified. The state first imposed a buffer zone around abortion clinics in 2000, six years after a black-clad gunman entered a Planned Parenthood facility in Brookline, Massachusetts, and opened fire, killing two employees. The clinic had, since the late 1980s, been the target of hostile protests from Operation Rescue, a radical anti-choice group. According to the petitioners, the anti-choice demonstrators of today are unlikely to pose a public safety threat. But in the anxious eyes of the state, the past is prologue. Nullifying the law would invite aggressors onto clinics’ doorsteps once again.
This is not the first time the Supreme Court has considered the constitutionality of buffer zones around abortion clinics. Only two other states—Colorado and Montana—have statewide buffer zone laws, but over the past two decades, a sizeable handful of municipalities have passed similar ordinances, mandating a protest-free zone around clinics. The laws aren’t identical, which makes for an even knottier legal decision. In 2000 the Supreme Court confronted the Colorado law in Hill v. Colorado which made it illegal for a person within 100 feet of a health care facility’s entrance to “knowingly approach” within eight feet of another person to hand out leaflets or engage in oral protest without their consent. This is known as a “bubble zone,” a moving pod of protected space, rather than a “buffer zone,” which creates a ring of protected space around a health facility. To the dismay of many First Amendment scholars, the Court ruled 6-3 in favor of Colorado, saying the demonstrators had ample alternatives for conveying their message to the patients.
Both sides were surprised when the Supreme Court decided to take the Massachusetts case, a choice that signals a potential reversal of previous precedent. Since 2000, many of the justices who voted in the Hill majority have retired, but the three dissenters—Clarence Thomas, Antonin Scalia, and Anthony Kennedy—are still on the bench. Timothy Zick, a professor of constitutional law at the College of William & Mary, decided to co-sign an amicus brief alongside a handful of other legal scholars, in the hope that the new justices might be willing to scale back the buffer zone protections. “In previous decisions like Hill, the government has gone far beyond what’s needed to ensure access and safety,” Zick says. “These laws essentially say, we’re going to protect people from speech they don’t want to hear. That’s a dangerous thing to do.”
But this case is less open-and-shut than scholars like Zick would like. Although the petitioners argue that the law is discriminatory because it allows clinic employees to approach and speak with patients in the zone, although they’re not permitted to discuss anything political. Martha Davis, a professor of law at Northeastern University, says there’s no evidence that the law was enforced in an uneven way. Moreover, the state of Massachusetts’s brief argues that the law focuses not on speech, but on conduct. The demonstrators can still make their views heard; after all, 35 feet is less than the length of two standard parking spaces. They—and any other partisan protester—are prohibited from physically compromising clinic access. They can keep talking to patients who are in the zone. They’ll just have to shout.
The petitioners’ brief stresses the peacefulness of their speech and actions, painting Eleanor McCullen as a kindly grandmother who has spent tens of thousands of her own money to help save women from the scourge of abortion. In this view, the buffer zone significantly impedes McCullen, who says her most effective encounters with potential abortion patients are quiet and intimate. Sure, McCullen could tote gruesome signs or a megaphone, this reasoning goes, but that will make her seem hostile and aggressive, when her true desire is to help women rethink the gravity of their decision—and offer them comfort and support.
Part of the problem is optics. To someone who cares enough about ending abortion to stand on a sidewalk in the hope they might be able to change a woman’s mind, shouting or blocking the woman’s path into the clinic might seem like an appropriate exercise of free speech. But for pro-choice advocates, looking back at the years of bloodshed, the buffer zones are essential—not because of peaceful demonstrators like McCullen, but because other protesters routinely made patients and employees feel unsafe, and have at times committed actual violence against them. There’s a reason why many of the petitioners are senior citizens; who would argue that a Catholic grandmother should be forced off a public sidewalk for offering kindhearted advice to young women? The problem is, anti-choice demonstrators come in all stripes. There are plenty of churchgoers holding rosaries standing peacefully outside the clinics; then there are the arsonists who try to burn the clinics down.
The respondents’ prognostications, unsurprisingly, tend toward the latter. Marty Walz, the CEO of Planned Parenthood of Massachusetts, recalls the scene outside the Boston clinic six years ago, when state lawmakers were revamping the buffer zone law passed in 2000, which was modeled after Colorado’s and created moving bubble zones for patients and clinic and employees. Walz, who was then serving as a state representative, was a co-sponsor of the new law, which mandated a fixed 35-foot buffer zone. She says the old law was largely unenforceable. “I came on a typical Saturday morning to see what it was like, and I had a protester inches away from my face, screaming at me,” she remembers. “Of course, that protester was breaking the law, but you can’t have a police officer out there listening to every conversation.”
Teresa Roberts, a staff nurse at Planned Parenthood of Massachusetts who has worked on and off at the Boston clinic since 1993, says the tone outside the clinic has changed immensely since the 2007 law was imposed. “In the 1990s, protesters would approach patients as they got out of their cars and follow them into the clinic, yelling nasty things,” she says. “They would stand outside the clinic with cameras, taking pictures and videos and saying they’d publish them. My coworkers got stalked walking home, protesters following them to the train. Sometimes their protests were more peaceful, but mostly it was very tense.” Now, Roberts says, the mood has changed. Before 2007, women would come into the clinic in tears, wondering why they had been verbally abused on their way to get a Pap smear. “It feels like a health center again, not a boxing ring.”
A ruling striking down the Massachusetts law could also have implications for other protected zones like polling places, where partisan activity is forbidden within a certain space. In Massachusetts, it’s 150 feet—a far greater distance than the abortion buffer zone.
In the arguments, Justice Kennedy will once again reprise his starring role as the Supreme Court’s perennial swing vote. But although some of the more conservative justices may be gunning for the precedent set in Hill, Davis says it will be hard to override the previous case completely, because the facts are different. Instead, McCullen could be an opportunity to raise questions about the constitutionality of the buffer zones sprinkled across the country. One possibility, she says, is that the justices will say the Massachusetts law is too slipshod, because it doesn’t tailor the buffer zones to fit the clinics’ geography. In its amicus brief, the ACLU points out that while any patient entering the Boston clinic must use a public sidewalk, the Planned Parenthood clinics in Worchester and Springfield are differently configured, making it harder for the demonstrators to catch the patients before they enter the protected zone.
But even this complaint, Davis says, might be going too far. “In a democratic process, that kind of individual tailoring would be very hard to achieve—almost unworkable. She adds that however eager the conservative justices may be to roll back Hill’s expansive precedent, the moderates will be concerned about the hovering specter of anti-abortion bloodshed. “When they look at Massachusetts’s history, I think Kennedy in particular will struggle with the idea that they could be opening the door to killings, or an upswing in clinic violence that can be traced back to the Supreme Court.”