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). A large part of the struggle has occurred in front of reproductive health care facilities (“RHCF”), where pro-life advocates sometimes try to dissuade patients, shame the staff, and call attention to what they believe are the evil practices of these facilities. See id.In Massachusetts, the protests have often resulted in violence and other unruly behavior. See id.To encourage public safety in and around RHCFs without affecting the flow of traffic, the Massachusetts legislature passed An Act Relative to Reproductive Health Care Facilities (“2000 Act”). See id.at 173. The 2000 Act prohibited individuals, with the purpose of discussing protest-related content, from approaching another person within six feet without consent. See id.
The First Circuit upheld multiple challenges to the 2000 Act which was closely modeled on a Colorado statute that the Supreme Court upheld in Hill v. Colorado. See id.However, in 2007, the legislature decided to change the statute to cure unanticipated difficulties in enforcing the 2000 Act. See id.The result of the change was An Act Relative to Public Safety at Reproductive Health Care Facilities (“2007 Act”) that created buffer zones near access points to the clinics. See id. The 2007 Act defined the zone as a thirty-five foot radius from any entrance, exit or driveway of a reproductive RHCF, or a rectangle created from the outside boundaries of each access point, all the way to the street. See id.Furthermore, the 2007 Act prohibits all persons from remaining within the marked buffer zones with four exceptions; people entering or exiting the facility, staff of the facility acting within the scope of their employment, law enforcement and other public service officials acting within the scope of their employment, and people using the area solely for the purpose of reaching a destination. See id.
Eleanor McCullen and the other petitioners base their claims around their activities at three Massachusetts clinics. See McCullen v. Coakley, 708 F.3d 1, 4 (1st Cir. 2013). The first clinic is in Boston at 1055 Commonwealth Avenue, where the only access point is the front entrance that requires the use of a twenty-five foot sidewalk on Commonwealth Avenue. See id. at 5. McCullen parks her car on Commonwealth Avenue and covers it with pro-life signage, while other people pray with loudspeakers, sing religious hymns while holding religious imagery, and counsel potential patients. See id. The second clinic is in Worcester, where pro-life activists conduct the same aforementioned activities, although here, the activists will sometimes try to divert the potential patients to a pro-life center located across the street from this clinic. See id.The RHCF is a stand-alone building that has an access point through a large sidewalk located in front of the building and through a private parking lot behind it, which is the access point most commonly used. See id.The third RHCF is in a multi-tenant medical complex, in a building with at least eight other medical offices. See id. This building is bordered on two sides by private parking lots, a third side abuts another building, and the fourth side fronts an open expanse. See id.at 6. There are five driveways leading in an out of the building and two are marked as buffer zones. See id. One active pro-life supporter in Springfield prays aloud, shows pro-life signs, and counsels patients. See id.
On January 16, 2008, McCullen and other Massachusetts residents who regularly engage in pro-life activities around the RHCFs sued the Attorney General, Martha Coakley, in federal district court. See McCullen, 571 F.3d at 174. McCullen alleged violations of 42 U.S.C. § 1983 and other constitutional violations, seeking declaratory and injunctive relief. See id. The district court bifurcated McCullen’s claims into facial and as-applied challenges. See id. The district court denied relief on all of McCullen’s claims, and McCullen appealed to the First Circuit. See McCullen, 708 F.3d at 4–6. Nevertheless, the First Circuit concluded that the 2007 Act was content and viewpoint-neutral, and a valid time-place-manner regulation. See id. Additionally, the court held that the 2007 Act was not overly broad or vague, and thus ruled that the Act was not an unlawful restraint on protected speech. See id.McCullen then appealed to the Supreme Court of the United States, and the Supreme Court granted certiorari to determine whether the First Circuit erred in upholding Massachusetts’ 2007 Act as constitutional. See Petition for Writ of Certiorari, McCullen v. Coakley, (2013) at i.
McCullen argues that the 2007 Act is unconstitutional because it denies RHCF patients the opportunity to access information about abortion alternatives. See Brief for Petitioners, Eleanor MCullen, Jean Zarrella, Gregory A. Smith, Eric Cadin, Cyril Shea, Mark Bashour, and Nancy Clark at 31. Coakley argues that the zones help promote public safety by protecting patients. See Brief for Respondents, Martha Coakley, Attorney General for the Commonwealth of Massachusetts, et al. at 28. The Supreme Court’s decision implicates access to information about abortions and alternatives, freedom of speech, and women’s rights.
Planned Parenthood League of Massachusetts (“PPLM”) argues that the 2007 Act is neutral on its face because, in order to prevent violence, it restricts who can congregate outside of RHCFs, regardless of what those individuals say. See Brief for Amici Curiae Planned Parenthood League of Massachusetts and Planned Parenthood Federation of America in Support of Respondents in Support of Respondent at 22. According to PPLM, protestors with any message cannot congregate outside RHCFs, and that includes pro-choice protestors as well as the petitioners in this case. See id. Furthermore, PPLM argues that in order to promote safety around RHCFs, the statute grants RHCF employees access to the buffer zones as a matter of logistical necessity. See id. at 26. Furthermore, PPLM acknowledges that there are PPLM escorts at the Boston facility on Saturday mornings stationed outside of the buffers zone to help patients locate and enter the facility, but the PPLM escorts are prohibited from counseling patients within the buffer zones and only assist patients in the buffer zone upon request. See id.at 29-31.
In support of McCullen, 40 Days for Life Organization (“40 Days”) asserts that the 2007 Act lacks neutrality because it restricts speech only around RHCFs as other health care facilities are exempt. See Brief of 40 Days for Lifeat 10. In limiting the application of the 2007 Act to RHCFs, 40 Days claims the Massachusetts legislature was not making a general policy choice for health care facilities, rather it was targeting the content of speech around RHCFs. See id. at 9-10. Furthermore, 40 Days points to the 2007 Act’s exception allowing RHCF employees into the buffer zone as allowing only one side of the debate to be represented inside that zone. See id. at 10-11.
ACCESS TO INFORMATION
The Justice and Freedom Fund (“Fund”), in support of McCullen, argues that the statute hinders speech by changing the channels for communicating the pro-life message, and hence depriving pro-life activists of the most effective means of communicating with potential patients. See Brief of Amicus Curiae Justice and Freedom Fund in Support of Petitioner at 16. Democrats for Life also argues that the no-speech zone changes the tone, voice, and identity of the speaker, and thus the law hinders its members’ ability to communicate. See Brief of Democrats for Lifein Support of Petitioner at 17–18.Moreover, 40 Days claims that the no-speech zone denies women the opportunity to receive information about possible abortion alternatives that may promote their health. See Brief of 40 Days at 27. As a result, 40 Days argues that it should be up to the woman to receive or reject that information, but that the State’s responsibility is to allow her to access alternative sources of information. See id.
The United States, in support of Coakley, counters that the statute does not ban speech, it merely regulates the place where the communication takes place. See Brief of Amicus Curiae United States in Support of Respondent at 26. Therefore, the United States maintains, anti-abortion activists can approach whomever they want, whenever they want, for whatever purpose they want, so long as they do this outside the buffer-zone, because, so far, buffer-zones are the only viable means of keeping those areas safe and clear. See id.at 25.The United States also points out that women are not prevented from obtaining this information on their own; women who are interested can easily approach the activists and request the information from them. See id.at 30. Furthermore, activists have many other adequate channels of communication, such as holding signs, praying, singing, and approaching people right outside the zones. See id.at 26–27. Moreover, activists can engage in many activities that allow people within the zone to hear their message. See id.at 30.
The Supreme Court will determine the constitutionality of a Massachusetts law, which creates a buffer zone around RHCFs which forbids speakers (other than clinic employees or agents acting within the scope of their employment) from visiting a public sidewalk within thirty-five feet of a clinic’s entrance, exit, or driveway. See Brief for Petitioner at i; Brief for Respondent at i. Deciding this issue will require an analysis of two sub-issues: (1) whether, under the First and Fourteenth Amendments, the First Circuit erred in upholding Massachusetts’s buffer zone law; and (2) whether Hill v. Colorado should be limited or overruled. See Brief for Petitioner at i; Brief for Respondent at i; see also Hill v. Colorado, 530 U.S. 703 (2000).
Eleanor McCullen claims that the First Circuit erred in upholding the 2007 Act because the law is not a permissible time, place, and manner regulation of free speech. See Brief for Petitioner at 21. McCullen also claims that Hill should be substantially limited or overruled. See id. at 53.
Massachusetts Attorney General Martha Coakley claims that the First Circuit did not err in upholding the 2007 Act because the law is a permissible time, place, and manner regulation of free speech. See Brief for Respondent at 13. Coakley also asserts that Hill should not be limited or overruled. See id.at 33.
THE 2007 ACT’S EFFECT ON FIRST AMENDMENT RIGHTS
Coakley asserts that the First Circuit did not err in upholding the 2007 Act because the law is a permissible time, place, and manner regulation of free speech. See Brief for Respondent at 13. According to Coakley, the 2007 Act is permissible under the Supreme Court’s well-established standard for evaluating the constitutionality of regulations on the time, place, or manner for engaging in expressive activity in a public forum. See id. at 25. According to Coakley’s interpretation of Supreme Court precedent, a regulation of free speech is permitted if the restriction is (1) both content- and viewpoint-neutral; (2) “narrowly tailored to serve asignificant government interest”; and (3) “leaves open ‘ample alternative channels for communication.’” See id.at 25-26 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)).
McCullen claims that the First Circuit erred in upholding the 2007 Act because the law is not a permissible time, place, and manner regulation of free speech. See Brief for Petitioner at 21. First, McCullen argues that the law is not content-neutral because the law creates buffer zones only at RHCFs, as opposed to all health care facilities, and thus only impacts the free speech of citizens who want to speak on the issue of abortion. See id. at 32. McCullen also argues that the law is not viewpoint-neutral because the law exempts RHCF employees and agents from the buffer zone. See id. at 28–29. Thus, McCullen asserts that the 2007 Act provides RHCF employees and agents with privileged access to public sidewalks for the purpose of promoting the clinics’ pro-choice views, while obstructing anti-abortion groups from expressing their views. See id.
Coakley, however, argues that the law is content-neutral because, even though the law creates buffer zones only at RHCFs, the statutory language of the law is not limited to people who oppose abortion. See Brief for Respondent 27. The law neutrally applies to all demonstrators, whether they oppose or support the women who are making an abortion decision. See id. at 30-31. Coakley further argues that the law is viewpoint-neutral, even though the law exempts RHCF employees and agents from the buffer zone, because clinic employees often assist in protecting patients and ensuring their safe passage as they approach the clinic. See id.at 35-36. Even employees and other individuals exempt from the 2007 Act are prohibited from blocking access to RHCFs or stopping traffic on the sidewalk. See id.at 39. Still, in the event that the Court determines that the employees exemption is not permissible, Coakley argues that the employee exemption should then be severed rather than invalidating the entire act. See id. at 40.
Second, McCullen argues that the law is not narrowly tailored because the law unnecessarily bans citizens from entering otherwise public sidewalks to distribute leaflets or conduct consensual conversations with willing listeners. See Brief for Petitioner at 38–39. McCullen elaborates that a narrowly tailored law will only regulate close, physical approaches to unwilling listeners. See id. at 44.
Coakley, however, counters that the 2007 Act is sufficiently narrowly tailored, even if the regulation has the effect of limiting communications with some willing listeners. See Brief for Respondent at 40-41. Coakley points out that the Supreme Court has repeatedly held that a sufficiently narrowly tailored law can constitutionally bar protestors from approaching both willing and unwilling listeners, where there is ample opportunity to communicate outside the zone. See id.at 47-48. According to Coakley, Massachusetts tried to eliminate harassment from protestors on both sides of the abortion issue who have a history of preventing patients and staff from entering RHCFs. See id.at 48.
Third, McCullen argues that the law does not provide sufficient alternative channels of communication. See Brief for Petitioner at 46. McCullen testified her group’s anti-abortion messages are most effective when conveyed through personal communication from a conversational distance with a calm voice, caring demeanor, and eye contact. See id. at 47–49. McCullen states that the alternative means of communication available under the 2007 Act, which requires standing outside the exclusion zones shouting using bullhorns and/or waving large signs, is not an adequate alternative. See id.
On the other hand, Coakley contends that there are ample opportunities to communicate outside the buffer zone, even if protestors are not afforded an absolute right to communicate from a conversational distance. See Brief for Respondent at 27. Coakley points out that the First Amendment does not guarantee citizens the right to communicate one’s view at all times and places or in any manner desired. See id. at 28. Coakley states that the Supreme Court restricts the time, place, and manner of speech in order to protect public health and safety, and the 2007 Act was specifically designed to protect the health and safety of women seeking reproductive health care services. See id. Further, Coakley argues that the fact that McCullen continued to succeed in convincing some pregnant women, whom McCullen met outside the buffer zone, to not undergo abortions further establishes that alternative channels of communication are available to McCullen. See id.at 31.
LIMITING OR OVERRULING HILL
McCullen argues that Hill v. Colorado should be substantially narrowed or overruled. See Brief for Petitioner at 53. In Hill, the Supreme Court affirmed a Colorado law that created a buffer zone around all health facilities so that protestors could not approach within eight feet of a person without their consent. See id. at 5 (citing Hill v. Colorado, 530 U.S. at 707 n.1). McCullen, however, argues that since Hill was decided, no Supreme Court majority opinion has relied on Hill’s First Amendment analysis because that case contradicts other well-established First Amendment principles. See id. at 54. Further, McCullen claims that Hill emboldens legislatures and lower courts to encroach on important First Amendment liberties. See id. at 55.
Coakley argues that Hill should not be substantially narrowed nor overruled. See Brief for Respondent at 57. Coakley contends that, because there are important differences between the 2007 Act and the law reviewed in Hill, this case is not a proper vehicle for reconsidering Hill. See id.For example, the 2007 Act deals with a fixed buffer zone that excludes all non-exempt individuals, without regard as to whether they are engaged in any kind of speech or communicative activity. See id.But, Coakley contends, the law reviewed in Hill dealt with a floating buffer zone that excluded individuals from approaching others without consent for the purposes of protest, education, or counseling. See id.Coakley also argues that the Supreme Court has upheld other fixed buffer zone laws that are similar to the buffer zone established under the 2007 Act and that the Massachusetts law is narrower than the Colorado statute in Hill. See id. at 57-58.
In this case, the Supreme Court will address the scope of free speech rights afforded to anti-abortion protesters. Eleanor McCullen claims that Massachusetts’ 2007 Act is unconstitutional because the law is not a permissible time, place, and manner regulation of free speech. McCullen also claims that Supreme Court precedent in Hill v. Colorado, which addressed a similar buffer-zone law, should be substantially narrowed or overruled. Martha Coakley claims that the 2007 Act is necessary to protect RHCF patients and that it still allows protestors the ability to reach their targeted audience even if it restricts how the activists communicate their message. Coakley argues that the 2007 Act is not similar enough to the act in Hill to make this case a proper vehicle for revisiting the decision in Hill. The Supreme Court’s decision could alter the balance between a state’s interest in protecting women who visit RHCFs, and the interests of anti-abortion protesters who want to counsel women approaching these clinics.
- 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).