Governments cannot ban anti-abortion "sidewalk counselors" from a 35-foot buffer zone that includes the sidewalk in front of an abortion clinic unless the governments first have tried less restrictive methods of protecting women from face-to-face intimidation as they enter reproductive health facilities.
That's the decision of the U.S. Supreme Court, which unanimously struck down on Thursday a Massachusetts law creating a 35-foot buffer zone that included much of the sidewalk in front of a Boston abortion clinic that has been the focus of vigorous protests. The court said that the Massachusetts law violated the First Amendment because it was not tailored narrowly enough to restrict the least amount of speech.
But Chief Justice John G. Roberts Jr. and the four more liberal justices on the court left the way open for states and cities to enforce other laws that protect women from hostile, face-to-face confrontations. Roberts, who wrote the court's opinion, said that Boston could pass a law similar to the federal Freedom of Access to Clinic Entrances Act of 1994, which provides civil and criminal penalties for anyone who by force, threat or physical obstruction attempts to "intimidate or interfere" with a person seeking reproductive health services. Twelve states -- not including Missouri or Illinois -- have passed such bills.
Roberts wrote that Massachusetts also could follow the lead of New York City and make it a crime “to follow and harass another person within 15 feet of the premises of a reproductive health-care facility."
Justice Antonin Scalia angrily disagreed, saying all these laws suppress the speech of abortion opponents. "Today’s opinion carries forward this court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion."
NARAL, the abortion rights group, said the Supreme Court decision "puts women and health-care providers at greater risk." The sidewalk counselors who challenged the law said they could provide "loving" help to women unsure about whether to go ahead with an abortion. Phyllis Schlafly's Eagle Forum was one of the anti-abortion groups that had filed friend of the court briefs opposing the Massachusetts law.
In 2000, the Supreme Court upheld a Colorado law that made it illegal for a protester within 100 feet of an abortion facility to approach within eight feet of a woman in an attempt to pass out a leaflet opposing abortion. That same year, Massachusetts enacted a similar law that barred protesters within an 18-foot radius of the clinic from approaching within six feet of a woman to urge them not to have an abortion. Two people had been killed and five others wounded at abortion clinic attacks in the state in 1994.
Massachusetts found that the six-foot ban was unenforceable. So, in 2007 it passed a law making it a crime to be within a radius of 35 feet from an entrance, exit or driveway of a reproductive health facility. There were exceptions, however, for clinic personnel and others who needed to enter the facility as part of their job. This is the law that the Supreme Court struck down.
When the court agreed to last fall to hear the case, it indicated it would consider limiting or overturning its 2000 Colorado precedent, which has been the subject of sharp criticism from even more liberal constitutional scholars like Laurence H. Tribe of Harvard Law School. But the Colorado precedent was not overturned by the court, even though Scalia would have thrown it out.
Levels of scrutiny
The biggest argument among the justices was over what level of constitutional scrutiny to apply to the law - middle-level scrutiny, requiring the law to be narrowly tailored to achieve a "significant" government objective, or strict scrutiny, requiring it to be narrowly tailored to achieve a "compelling" government interest.
This is lawyer-speak, but it is important. Think of the levels of scrutiny as hurdles. More laws can get over the middle level of scrutiny than the high hurdle of strict scrutiny.
If a law regulating speech is content and viewpoint neutral -- in other words does not favor one side in a debate -- then it only has to clear the middle level of scrutiny. If, however, the law singles out particular speech for disfavored treatment, then strict scrutiny applies.
The chief justice concluded that the Massachusetts law was content neutral, a conclusion ridiculed by Scalia and the other move conservative justices on the court -- Justices Clarence Thomas, Samuel Alito and Anthony M. Kennedy.
Scalia pointed out that the law's exception allowing clinic employees inside the buffer zone favored abortion-rights speakers. Roberts said, however, that the clinic personnel in the buffer zone did not have a favored position as long as they did not use that position to push abortion on those they encountered.
Even though the chief justice applied the less stringent level of constitutional scrutiny to the Massachusetts law, he still found it it didn't clear that lower hurdle. The law was aimed at a significant public interest -- protecting public safety -- but it wasn't narrowly enough tailored to restrict the least possible amount of speech, Roberts said.
Sidewalks are forums
Roberts wrote that the women who challenged the law were not confrontational protesters. He said that Eleanor McCullen will typically initiate a conversation this way: “Good morning, may I give you my literature? Is there anything I can do for you?" McCullen and the other women said they had dissuaded hundreds of women from having abortions by using these direct but non-confrontational tactics.
Roberts wrote that the women challenging the law "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. (They) believe that they can accomplish this objective only through personal, caring, consensual conversations. And for good reason: It is easier to ignore a strained voice or a waving hand than a direct
greeting or an outstretched arm."
Roberts said that kind of speech should not be banned, particularly when it occurs on public sidewalks, which are traditional forums for public debate and "occupy a special position in terms of First Amendment protection." He noted that the 35-foot arcs from the Boston's clinics door and driveway result in a 56-foot portion of the public sidewalk that is off limits to these anti-abortion counselors.
The chief justice concluded that even though there are “undeniably significant interests in maintaining public safety on [its] streets and sidewalks, as well as in preserving access to adjacent health-care
facilities.... The commonwealth has pursued those interests by the extreme step of closing a substantial portion of a traditional public forum to all speakers.”
Scalia ridiculed the chief justice's opinion saying, "This is an opinion that has Something for Everyone, and the more significant portion continues the onward march of abortion-speech-only jurisprudence."
Scalia said he was dumbfounded that the court would have agreed to hear the case to consider overruling the 2000 Colorado precedent and then entirely ignored the issue.