Yesterday, the Supreme Court heard oral arguments in McCullen v. Coakley, which concerns a challenge to a Massachusetts law creating a 35-foot buffer zone around health clinics. The Court upheld at least one form of buffer zone in the 2000 case Hill v. Colorado. But as the Prospect's Amelia Thomson-DeVeaux noted in her comprehensive preview of the case, personnel changes to the Court put the buffer zone on much thinner ice. Two members of the 2000 majority (O'Connor and Rehnquist) have been replaced by justices much more likely to be hostile to the law (Alito and Roberts.) The oral argument generally support this head-counting-the question appears to be not whether Massachusetts will lose but how bad the loss will be. Workers at clinics and women seeking reproductive health care may pay a substantial price.
The key issue in the case is whether the 35-foot buffer zone is constitutional as a "place, time and manner" restriction on speech. Speech that would otherwise be constitutionally protected can be regulated or prohibited by neutral rules that uphold a legitimate state interest in upholding safety and order. (You have a First Amendment right to criticize the Supreme Court's opinions, but you don't necessarily have a First Amendment right to broadcast these opinions with a bullhorn on the sidewalk outside of Chief Justice Roberts's house at four in the morning.) The key word here is "neutral." The challengers to the buffer zone have a superficially persuasive argument that the Massachusetts law lacks the content neutrality the First Amendment requires. Presumably, the law is most likely to affect opponents of reproductive rights-supporters of abortion rights are unlikely to try to interfere with women heading into an appointment-and in this way can be seen as targeting anti-abortion speech.
This argument, however, is not terribly convincing on further inspection. Certainly, the law does not target solely anti-abortion speech on its face; as Justice Ginsburg put it, the law is "not content [based]-it's not based on speech about abortion. It's that you can't speak about anything." And, as Massachusetts assistant attorney general Jennifer Grace Miller noted, the law would not only apply to anti-abortion speakers even in practice: in one case in the record, "[y]ou had the Pink Group, which is a pro-choice organization, pushing and shoving and jockeying for position." As debate takes place near health clinics, there may be circumstances in which groups of abortion rights supporters might impede access, and the law would apply to them.
As Thomson-DeVeaux observes, the challengers made the shrewd decision to focus on Eleanor McCullen, a soft-spoken anti-abortion activist who generally tries to speak to women entering clinics quietly and alone. And if this was the only possible speech restricted by the statute, the case against it might be compelling. But as Justice Ginsburg noted during the oral argument, the law was enacted in response to much more disruptive actions the pre-existing law failed to prevent:
Mr. Rienzi, the problem that the State faced is it doesn't know -- and it has a history, there was a considerable history of disturbances and blocking the entrance, and it doesn't know in advance who are the well-behaved people and who are the people who won't behave well. So -- and after the disturbance occurs, it's too late. So the State is trying to say, We want to make sure that the entrance is not blocked, and the only way we can do that is to have a rule that applies to everyone. We can't -- we can't screen people to know who will be well behaved and who will be disruptive.
Indeed, as Justice Breyer later argued, a law that tried to distinguish among protestors based on their style of speech would be more constitutionally problematic than a law that applies to everyone. And it the extensive history of disruption that prevents women from entering health clinics cited by Ginsburg that is crucial to the case. The fact that the state would, in practice, be more likely to apply to opponents of abortion rights is constitutionally problematic only if the state lacks an independent reason for doing so. But the extensive history in the record provides a more than adequate justification.
Despite this, it seems unlikely that the law will stand. Justices Scalia, Kennedy, and Thomas dissented from the 2000 case holding a much smaller buffer zone unconstitutional, so they are certain votes to strike down the Massachusetts law. Chief Justice Roberts said very little during the oral argument but is in fundamental sympathy with this troika on both abortion and First Amendment issues. The only potentially interesting vote among the conservative bloc is Justice Alito. Alito has had a consistently narrow vision of the First Amendment, in several cases issuing solo dissents that would have upheld content-based restrictions on speech. In theory, Alito might be amendable to upholding the law that is plausibly a regulation of conduct, not speech.
However, Alito is also the most consistent Republican party-liner on the Court, the least likely to let legal principles stand in the way of his policy preferences. The oral arguments suggest that his hostility to reproductive rights will trump his typically narrow conception of the First Amendment. I agree with Irin Carmon of MSNBC, who reported that "Alito made clear he is highly skeptical of the Massachusetts law," even oddly suggesting that an exception allowing clinic workers to perform job functions violates content-neutrality.
The Massachusetts law seems likely to fall. The question is how the majority will choose to do so. The best-case scenario is that the Court maintains Hill v. Colorado but argues that Massachusetts went to far beyond the eight-foot buffer contained in that law. This might provide suboptimal protection to clinic workers and patients but better than nothing. The worse option would be for Roberts and Alito to overrule Hill altogether. I'm often skeptical of the "minimalist" theory of jurisprudence espoused by George W. Bush's nominees, but this is one case where I'm hoping for the narrowest possible opinion.
