Will the Supreme Court Pop Abortion Clinic Bubbles?

Update (June 26): The Supreme Court ruled today that the Massachusetts "buffer law" is unconstitutional, arguing that sidewalks and public streets present public forums and that, in regulating their use broadly, the state's law violates the First Amendment.

"A painted line on the sidewalk is easy to enforce, but the prime objective of the First Amendment is not efficiency," Chief Justice John Roberts argued in a court document. "Given the vital First Amendment interests at stake, it is not enough for Massachusetts simply to say that other approaches have not worked."

According to Roberts:

It is no accident that public streets and sidewalks have developed as venues for the exchange of ideas. Even today, they remain one of the few places where a speaker can be confident that he is not simply preaching to the choir. With respect to other means of communication, an individual confronted with an uncomfortable message can always turn the page, change the channel, or leave the Web site. Not so on public streets and sidewalks. …

Petitioners wish to converse with their fellow citizens about an important subject on the public streets and sidewalks—sites that have hosted discussions about the issues of the day throughout history. Respondents assert undeniably significant interests in maintaining public safety on those same streets and sidewalks, as well as in preserving access to adjacent healthcare facilities. But here the Commonwealth has pursued those interests by the extreme step of closing a substantial portion of a traditional public forum to all speakers. It has done so without seriously addressing the problem through alternatives that leave the forum open for its time-honored purposes.

The Commonwealth may not do that consistent with the First Amendment.

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The U.S. Supreme Court has repeatedly allowed "buffer zones" that keep abortion protesters from approaching medical facility entrances. So the court surprised many observers when it agreed to hear a challenge to a Massachusetts "buffer zone" law on January 15.

Mark Rienzi, lead counsel for the pro-life plaintiffs, argues that the state's 2007 law creating a 35-foot buffer zone around abortion clinics and other health-care facilities exceeds the high court's ruling.

In its 2000 decision Hill v. Colorado, the Supreme Court upheld Colorado's so-called "bubble law" by a 6-to-3 vote. The law established a 100-foot zone in front of medical facilities and prohibited protesters from walking within an "8-foot bubble" of people.

"The Court allowed the restriction because the law had several key safeguards, all of which have been eliminated by the Massachusetts law," said Rienzi, a Catholic University of America law professor.

He declared the Massachusetts law "inescapably viewpoint-based"—and thus a violation of free speech—because it applies "only when and where abortion is allowed." It also lets staff promote abortion to potential patients in the buffer zone.

"These [laws] are being passed for one purpose: to shut down the speech of one opinion, which should be enough for the Supreme Court to reject them," said Brian Gibson, executive director of Pro-Life Action Ministries.

But in upholding the Massachusetts law a year ago, an appeals court disagreed, saying the free speech protections were similar to those in Hill.

In general, the Hill ruling had little effect on pro-life activism, said Michael New, a University of Michigan–Dearborn political scientist. Along with a handful of cities, just three states—Colorado, Massachusetts, and Montana—have buffer zones.

That's largely because six years earlier, the 1994 Freedom of Access to Clinic Entrances Act had changed the face of abortion protest. "When it became a violation of federal law with tough penalties to block an entryway to an abortion clinic, the rescue movement in the United States pretty much vanished," he said.

But Rienzi said his clients aren't like the protesters of the 1980s and early '90s. They aren't challenging "laws that make it illegal to bar the door or tackle someone or engage in violence or destruction of a facility."

"All those things are illegal and, frankly, should be illegal," he said. "This is about the peaceful speaker. The petitioners in this case, they don't want to shout [or] wave gory signs. They want to speak like civilized adults and offer these women help."

When the government puts a line on a sidewalk 35 feet away, it gives those who want to help no choice but to shout, Rienzi said.

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