Are state-mandated buffer zones around reproductive health care facilities that prohibit pro-life activists from approaching patients constitutional?
To dissuade women from having abortions, pro-life activists in Massachusetts sometimes attempt to communicate with women as they enter and exit reproductive healthcare facilities. To promote public safety, the Massachusetts legislature passed a law that imposes a thirty-five foot buffer zone around the access points to those clinics, and prohibits people from remaining in the buffer zone with a few exceptions. McCullen represents a group of Massachusetts residents who engage in pro-life counseling and who claim that the buffer zones put them at a disadvantage in their mission. McCullen also argues that the statute violates the First Amendment because it prevents patients who are contemplating having an abortion from obtaining information about alternatives. Coakley, the Massachusetts Attorney General, counters that the purpose of the statute is to prevent violence and facilitate access in and out of those healthcare facilities. The Supreme Court will have the opportunity to consider whether these buffer zones surrounding reproductive healthcare facilities are constitutional. The Court’s ruling will implicate the rights of pro-life and pro-choice activists in promoting their views near these facilities, as well as the rights of individuals seeking services there.
Massachusetts has made it a crime for speakers to “enter or remain on a public way or sidewalk” within 35 feet of an entrance, exit, or driveway of “a reproductive health care facility.” The law applies only at abortion clinics. The law also exempts, among others, clinic “employees or agents . . . acting within the scope of their employment.” In effect, the law restricts the speech of only those who wish to use public areas near abortion clinics to speak about abortion from a different point of view.
Petitioners are individuals who believe that women often have abortions because they feel pressured, alone, unloved, and out of options. Petitioners try to position themselves near clinics in an attempt to reach this unique audience, at a unique moment, to offer support, information, and practical assistance. They are peaceful, non-confrontational, and do not obstruct access. Yet, the State prohibits them from entering or standing on large portions of the public sidewalk to proffer leaflets or seek to begin conversations with willing listeners.
The questions presented are:
- Whether the First Circuit erred in upholding Massachusetts' selective exclusion law under the First and Fourteenth Amendments, on its face and as applied to petitioners.
- If Hill v. Colorado, 530 U.S. 703 (2000), permits enforcement of this law, whether Hill should be limited or overruled.
For over three decades, pro-life and pro-choice advocates have battled each other over the best forums for expressing their ideas. See McCullen v. Coakley, 571 F.3d 171, 172 (1st. Cir 2009).
- Vik Amar & Alan Brownstein, UC Davis School of Law Faculty Blog, The Question of Disparate Speech Impact in the Supreme Court’s Upcoming McCullen v. Coakley Case, (Dec. 22, 2013).
- Gabriella Khorasanee, FindLaw, McCullen v. Coakley: Abortion Buffer Zone Case Before SCOTUS, (Nov. 16, 2013).
- Alexandra Ma, PolicyMic, McCullen v. Coakley: Abortion Is Heading to the Supreme Court Again, (Nov. 16, 2013).