The free speech of pro-life Americans—particularly their ability to protest, offer counseling, or even hold silent prayer outside abortion clinics—is at stake in a case before the U.S. Supreme Court this term.
McCullen v. Coakley, which went before the high court in mid-January for oral arguments, deals with the legality of buffer zones around abortion clinics, which critics say severely curtail First Amendment rights. The case, which originated in Massachusetts, pits the state, represented by Attorney General Martha Coakley—the failed Democratic Senate candidate against the GOP’s Scott Brown in 2011 election—against pro-life men and women who have been offering counseling to women outside abortion clinics. (One of them is the lead petitioner, Eleanor McCullen.)
A decision in favor of the pro-life petitioners could reverse the growing practice of instituting buffer zones (what the legal brief for the petitioners calls “speech-exclusion zones”) around abortion clinics. A ruling the other way, on the other hand, could imperil the future of pro-life protests and counseling outside abortion clinics, emboldening other states to follow Massachusetts, legal experts say.
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“I think it is a very important case as it deals with buffer zones at abortion clinics,” said Richard Thompson, President and Chief Counsel of The Thomas Moore Law Center.
Massachusetts Law Establishes “Speech-exclusion Zones”
The Massachusetts law being challenged bans speakers from entering or remaining on streets, sidewalks, or any other public spaces within 35 feet of an entrance, exit, or driveway of an abortion clinic. However, the law exempts abortion clinic employees, who are permitted to enter the zone—and, presumably, have a decided advantage over pro-life speakers in expressing their own pro-choice views.
Massachusetts passed the law in November 2007, seven years after the U.S. Supreme Court upheld the constitutionality of a far smaller floating eight-foot buffer zone around patients at health care facilities in Colorado (with an exception for consensual conversations).
Pro-life groups contend that Massachusetts has taken that case, Colorado v. Hill, too far. “This case is an opportunity for the Supreme Court to either clarify or overturn that case to make First Amendment law more consistent,” said Carrie Severino, an attorney with the Judicial Education Project who has filed an amicus curiae (“friend of the court”) brief on behalf of a dozen women who had abortions. The women argue that free speech rights for pro-life counselors is necessary to ensure women make fully informed choices—which they say they were not able to do.
Under the Massachusetts law, not only are protests on sidewalks within the zone forbidden, but even consensual conservations between pro-life counselors and women who are heading towards the abortion clinics. “Barring use of a quintessential public forum for the peaceful exchange of ideas or information among willing citizens strikes at the very heart of the First Amendment,” writes the lead author of the petitioners’ brief, Catholic University of America law professor Mark Rienzi.
Another quintessential expression of First Amendment rights—leafleting—is also banned within what Rienzi variously describes as a “forbidden zone” and “First Amendment-free zone.” Rienzi concludes:
Gone is the freedom to speak face to face with a willing listener. Gone is the ability to speak from a normal conversational distance. Gone is the ability to offer leaflets. Gone is the ability of a potential listener to respond to a non-threatening proffer of information or support by inviting petitioners to approach and talk. Gone is the ability to stand peacefully and hold a sign, or even simply stand in silent prayer.
Such “targeted burdening of speech” is no more acceptable than a law banning protests outside of schools during labor disputes, Rienzi, notes, citing a 1972 case where the U.S. Supreme Court ruled against exactly that, Police Department of Chicago v. Mosley. He points out that such restrictions would be immediately rejected as distasteful and constitutionally suspect if they were applied in other circumstances, such as protests by animal rights groups outside of slaughterhouses, environmental activists by power plants, or unions outside of factories. In fact, just such a concern has driven an unlikely ally—the AFL-CIO—to file an amicus curiae brief with Rienzi.
Yet Supporters of Law Say Grim Reaper is Protected
Supporters of the Massachusetts abortion clinic law, however, contend that protesters and counselors still have ample opportunity to express their viewpoint. The U.S. Court of Appeals for the First Circuit, in its ruling upholding the law Jan. 9, 2013, claimed the following:
The record makes plain that communicative activities flourish at all three places. To begin, the plaintiffs and their placards are visible to their intended audience. Through their signs and demonstrations, the plaintiffs disseminate their message and elicit audience reactions. Their voices are audible. They have the option (which they sometimes have exercised) of using sound amplification equipment. When they and their cohorts deem it useful to do so, they congregate in groups outside a clinic, engage in spoken prayer, employ symbols (such as crucifixes and baby caskets), and wear evocative garments. They sometimes don costumes (dressing up as, say, the Grim Reaper).
But the pro-life counselors who are appealing the law do not want to loudly protest, in a confrontational or provocative manner. They want to reach out to women in a calm tone, at a conversational distance. They argue that the limited circumstances imposed upon them by the law affect both the content of their speech. “There’s a world of difference between shouting at someone with a bullhorn and walking up to them face to face as a friend,” said Severino. The women she represents in her amicus curiae brief testified that they would not have positively responded to people shouting at them and would have been turned off by someone dressed as the Grim Reaper.
As a result of the restrictions, the pro-life counselors appealing the law say their ability to get their message out has been severely constrained. They point to the difference in the numbers of women whom they have persuaded to seek alternatives to abortion prior to the enactment of the law and afterwards.
For example, one of the petitioners, 85-year-old grandmother Jean Zarrella, says she has not had “a single successful interaction with an incoming woman” at the Boston clinic where she offers counseling since the law took effect.
Likewise, Eleanor McCullen, the first-named petitioner, says that the buffer zones prevent her from reaching almost half a dozen people daily, totaling an estimated 480 to 586 people a year. “Even when she is able to make initial contact, McCullen testified that the Act’s restrictions change the nature of her conversations, making them shorter and less effective because she is forced to speak hurriedly, sometimes speak louder, and stop walking at the painted exclusion line,” Rienzi writes in the brief. Plus, the fact that they are required to stop at that line, Rienzi notes, undercuts their credibility with the women they are trying to dissuade from having an abortion.
By contrast, employees of abortion clinics may freely enter the zone. Presumably, their presence is permitted only when they are “acting within the scope of their employment”—as the law states—but, in fact, they themselves engage in free speech activities, according to Rienzi. He reports that clinics station uniformed escorts in the zone, who surround women “sometimes yelling, making noise, chattering” and telling them they don’t need to listen to the pro-life counselors—even berating them as “crazy.” “The escorts use their statutory exemption to interfere with petitioners’ attempts to communicate,” Rienzi concludes.
Thus, the law not only regulates the content of speech, it privileges one viewpoint at the expense of the other, according to Rienzi.
“So it is not a law of neutral content or a law that is applied neutrally,” Thompson said. He added, “This is a thinly disguised statute aimed at people who oppose abortions.”
Rienzi says his conclusions about the built-in bias of the law are reinforced by a letter Massachusetts Attorney General Martha Coakley issued in January 2008 to local law enforcement and clinic employees. In her letter, Coakley warned that employees in the zone could not “express their views about abortion.” “The Attorney General’s ‘guidance’ should be taken for what it is—a deliberate but unsuccessful attempt to ‘rewrite a law to conform it to constitutional requirements,’” Rienzi writes, citing a 2010 case. Her explicit mention of abortion, he adds, only confirms that abortion-related speech is the target of the law. (Coakley does not directly respond in her brief.)
Either way, Coakley’s guidance has little legal weight, Rienzi says. According to long-standing principles of statutory construction, an enforcement authority may narrow the scope of a law, but it may not broaden it, Rienzi writes. Even Coakley recognizes the constitutional vulnerability of the employee exemption: in her brief she makes a technical legal argument for the “severability” of that clause, meaning effectively that she believes the court could strike that clause down without invalidating the entire law.
Restricted Speech Also Deprives Pregnant Women of Rights
Those who suffer the loss of their rights are not just the speakers outside the buffer zone. The rights of their listeners—the women inside the buffer headed towards the clinics—are also at stake, Severino argues in her brief. “The First Amendment is there not only to protect the people who are speaking but the people in the audience,” Severino said. “When you block one side of the argument from being made then that marketplace of ideas just cannot function.”
In her brief, Severino argues that “[n]owhere is a robust supply of information” more important than in a decision about abortion, which—besides being a matter of life or death from a pro-life perspective—is a choice that can have weighty consequences for the women making it. She noted that many of the women she represents have struggled with anxiety, depression, thoughts of suicide, and problems in their marriages and with their families as a result of their choice to have an abortion.
In upholding the law, the Court of Appeals, she writes, “ignores the burden the Act places on the rights of women entering reproductive health facilities.” Particularly egregious, she adds, is the ban on consensual conversation: even women who meet a pro-life counselor outside the zone and want to continue speaking with them inside it are unable to do so under the law. “Massachusetts has no legitimate interest in prohibiting willing listeners from communicating with speakers inside the buffer zone,” she writes.
Notably, the U.S. Supreme Court, in its decision in Police Department of Chicago v. Mosley, precisely warned against this, in a majority opinion authored by none other than liberal legal lion Thurgood Marshall:
Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone.
When the state does have a legitimate interest, such restrictions must be “carefully scrutinized”:
Conflicting demands on the same place may compel the State to make choices among potential users and uses. And the State may have a legitimate interest in prohibiting some picketing to protect public order. But these justifications for selective exclusions from a public forum must be carefully scrutinized.
When Speech Can and Can’t Be Restricted
Restrictions on freedom of speech in the legal world are known as “time place and manner” regulations. In order to pass constitutional muster, such laws must meet four criteria: they must be content-neutral, they must be narrowly tailored, serve a legitimate state interest, and allow for ample alternatives to the speech that is restricted. (A classic case that spells out and clarifies these criteria is Ward v. Rock Against Racism.)
The law—based on its narrow application only to abortion clinics and its exemption for their employees, coupled with the damning concessions in the Attorney General’s letter—clearly fails to meet the first criterion, Rienzi argues in his brief. It cannot be considered “narrowly tailored” either, since all pro-life speech is excluded from the zones—even consensual conversations and leafleting, according to Rienzi.
In her brief, Coakley insists that the law only restricts the conduct of speakers, not the content of their speech: outside of the 35-foot buffer their free speech rights are not abridged. They are barred from entering the zone not because of their speech but for public safety reasons. Coakley emphasizes the state’s longstanding struggle to maintain law and order outside of clinics—saying the history of public safety issues created even by peaceful protestors who throng the entrances of the facility is what motivated the 2007 law. It is a concern for public safety that is the legitimate state interest at issue, according to Coakley.
But such a legitimate state interest is already served by existing laws, including a subsection of the 2007 law that is not challenged, according to Rienzi. “By establishing a further broad, prophylactic zone from which petitioners and similar speakers are wholly excluded, the 2007 Act burdens substantially more speech than can be justified,” he writes.
Prior to 2007, the existing law on the books instituted an 18-foot buffer around clinics, within which pro-life speakers could not come within six-feet of a woman entering an abortion clinic—with an exemption for consensual conversations. Rienzi has questioned why state lawmakers deemed it necessary to replace that law, which dates back to 2000, given that it is a law enforcement tool that appears to have been under-utilized: there were only a “handful” of arrests under the old law and just a “few” prosecutions, according to Rienzi—something that Coakley does not dispute.
Instead, she has argued that the law has been difficult to enforce—particularly because of the difficulty to prove “intent” to violate it. Then why did she show a video depicting a “clear” violation of the law? Rienzi counters in his brief. Perhaps more importantly, why were the alleged perpetrators never arrested and prosecuted?
Pro-life advocates also insist that the law flatly fails the “ample alternatives criterion” as well—arguing that dressing up as Grim Reaper is hardly an acceptable alternative to the calming voice of a grandmother engaged in personal conversation.
Part of the debate over the alternatives hinges on a question: are pro-life speakers entitled to use the most effective means of speech at their disposal? In its amicus curiae brief, the pro-life organization, 40 Days for Life, argues that existing case law has affirmed that its members may do exactly that, citing a 1988 case, Meyer v. Grant, in which the Supreme Court held that just because individuals “remain free to employ other means to disseminate their ideas does not take their speech … outside the bounds of First Amendment protection.” The law that the court struck down in that case was described by justices as barring “access to the most effective, fundamental, and perhaps economical avenue of political discourse.”
The problem of the so-called alternatives becomes particularly acute when viewed from the perspective of women seeking abortions who, because of the constrictions of the 35-foot buffer, may no longer receive the vitally needed information they once could, according to Severino. “The consequences of being prevented from communicating this type of information are immediate and irreversible; there is no second-best result and there are no second chances,” she writes.
Even the paucity of adequate alternatives has alarmed the ACLU, which has filed an amicus curiae brief on behalf of the pro-life petitioners. Although not agreeing with their arguments on most of the law, the ACLU does urge the Supreme Court to remand the case to the appeals court for further review of the adequacy of the alternatives to pro-life speakers in two cities where the layout of driveways particularly limits where pro-life speakers can congregate: Springfield and Worcester.
That outcome is probably the second-least desirable for pro-life advocates, short of a full decision against them. But the ACLU’s mere involvement is one indicator of the potentially broad appeal of the pro-life position, particularly on the nine-member Supreme Court.
Reasons for Optimism
Pro-lifers have reason to be optimistic that a majority of justices are amenable to their position. Three of the justices who dissented in Hill v. Colorado are still on the bench—justices Anthony Kennedy, Antonin Scalia, and Clarence Thomas. They presumably would be even less enamored of the expanded buffer zone that is instituted in the Massachusetts law. Based on his aggressive questioning of the attorney representing the state, it appears likely that at least one of President George Bush’s appointees, Samuel Alito is inclined to join them.
That leaves social conservatives in need of one more vote in order to get the necessary five-member majority to overturn the Massachusetts law. It’s unclear which way Bush’s other appointee, Chief Justice John Roberts might go—and his near silence during the January 15 oral arguments, apart from a few procedural remarks gave court observers little clues as to which way he might be leaning.
Overall, however, the Roberts court has been a strong advocate of First Amendment rights, according to Thompson. “So you have a formula for overturning or restricting Hill v. Colorado, which would be a tremendous victory for the pro-life movement,” Thompson said.
But social conservatives may not end up needing Roberts. One of the surprises during last month’s oral arguments was Justice Elena Kagan, a President Obama appointee, who hinted that she might support a ruling in favor of narrower buffer zones, according to the SCOTUSblog, which closely follows the high court.
In an interview prior to the oral arguments, Severino anticipated three possible outcomes. The most desirable from a pro-life perspective would be the overturning of Hill v. Colorado, which would, of course, entail a ruling against the Massachusetts law. The worst case scenario would be a decision in favor the Massachusetts law, expanding the size of the buffer allowed under Hill v. Colorado. A third outcome is a middle path, narrowing the interpretation of Hill, especially as it applies to Massachusetts, but still upholding the basic constitutionality of the buffer zones.
“I actually think most likely is that middle road,” Severino concluded.
While there is much cause for hope in the outcome of this case, pro-lifers must be as cognizant of the deleterious consequences of a ruling not in their favor. A Supreme Court stamp of approval for the Massachusetts law could embolden other states to follow suit, imperiling the future of prayer vigils, protests, and counseling outside of abortion clinics—activities that the pro-life movement considers vital to how it expresses its identity (as the amicus curiae briefs from 40 Days for Life argues).
Beyond the direct impact to the pro-life movement, are the consequences for the right to free speech, Thompson said. “It is going to have a chilling effect,” he said.