How far can lawmaking go in creating a buffer zone around abortion clinics to ensure women can go to the clinic before violating the First Amendment rights of those who want to talk to women about alternatives to abortion?
On Jan. 15, the Supreme Court heard arguments in McCullen v. Coakley against a Massachusetts law under which a line is painted on the ground 35 feet from the door of abortion clinics. Anyone who enters that zone to speak against abortion to a woman can go to prison for committing a crime.
Eleanor McCullen is an elderly woman who counsels younger women who are pregnant to have their baby instead of an abortion. She is challenging the Massachusetts law, which was upheld by the First Circuit federal appeals court in Boston.
McCullen was represented by Prof. Mark Rienzi of Catholic University. Rienzi began, “This Court has held that the public sidewalks are a natural and proper place for free citizens to exchange information and ideas, and for that reason the Court has held that public sidewalks occupy a special position in First Amendment analysis.”
Justice Sonia Sotomayor compared pro-lifers’ speech outside abortion clinics to protests at military funerals. “So protesters like the one we had in the Schneider case at a funeral of a veteran can go right up to the public sidewalk outside the church and put up the signs that they did… That’s okay with you?” Sotomayor said both share one thing in common, that “there is the potential for disruption because of the strong sentiments around that.”
Rienzi responded that this law is targeting a very different type of expression. He contended that “a law that makes it illegal to even engage in consensual conversation, quiet conversation, on a public sidewalk, [a law] that makes that a criminal act for which Mrs. McCullen can go to prison… is not permissible under the First Amendment.”
Justice Elena Kagan suggested she thought government must be able to do something. “But you say… we have to let whatever interference goes on, even if there’s a record of real obstruction, of real interference with the operation of the facility… And I guess I think that’s pretty hard.”
Justice Antonin Scalia saw this case in a very different light. He asked Rienzi, “It is the case, isn’t it, that not only abortion counselors are excluded from this area. Everybody is, right? Anybody who wants to talk to anybody or who just wants to be there can’t. I mean, this is a dead speech zone, right?”
When Kagan tried to say that all conduct is barred from this 35-foot area, not just speech (suggesting this is not a pure ban on speech), Justice Samuel Alito disagreed: “Well, they haven’t entirely eliminated speech because [abortion clinic] employees are permitted to speak within the scope of their employment.”
This distinction is critical, because if only anti-abortion speech is barred, while pro-abortion speech is allowed, that would be viewpoint discrimination, which is always unconstitutional. Alito later added the example that the way this law is written, it would be acceptable for a clinic employee to tell a woman that the abortion clinic is a safe facility, but a crime for non-employees to tell a woman that the clinic is unsafe. This argument seemed to get traction with Justice Anthony Kennedy who is very likely the swing vote in this case.
Kennedy also suggested that he regards this restriction as a form of content-based speech restriction (which under these circumstances would be unconstitutional), asking, “Am I correct that the attorney general’s regulation with respect to employees of the clinic in a way made this even more content-based because there was a prohibition on discussing the abortion procedure?”
Rienzi sensed an opening and was quick to drive that point home. He answered Kennedy, “I agree. That’s one of the reasons that the interpretation is flagrantly unconstitutional. The government can’t say to people who work for Planned Parenthood, ‘We won’t arrest you when you talk on the sidewalk unless you talk about abortion.'”
Massachusetts Assistant Attorney General Jennifer Grace Miller then argued in favor of the law. She began by saying that people are still free to protest abortion outside clinics so long as they remain outside the line.
Scalia pushed back, saying:
This is not a protest case. These people don’t want to protest abortions. They want to talk to the women who are about to get abortions and talk them out of it… If it was a protest, keeping them back 35 feet might not be so bad. They can scream and yell and hold up signs from 35 feet. But what they can’t do [from 35 feet] is try to talk women out of the abortion. It’s a counseling case, not a protest case.
When Miller responded that it just moves back those conversations “a few feet,” Kagan disagreed, saying, “Well, it’s more than a few feet… if you imagine the chief justice as sort of where the door would be, it’s most of the width of this courtroom… That’s a lot of space.” Later in the argument Kagan signaled this could be a problem for her, adding, “I guess I’m a little bit hung up on why you need so much space.”
Justice Stephen Breyer asked if it was possible to write a statute that would ban yelling, protesting, and obstructing access 35 feet from the clinic door, but still allow for quiet and peaceful speech. When Miller responded that there’s no legal means of guaranteeing the right to engage in calm speech so long as there are alternative channels for communication, Kennedy asked incredulously, “Do you want me to write an opinion and say there’s no free speech right to quietly converse on an issue of public importance?”
The Obama administration also participated in oral argument, represented by Deputy Solicitor General Ian Gershengorn. When Gershengorn said Massachusetts’s law was needed to prevent congestion that blocks women’s ability to enter the clinic, Kennedy brushed aside that this law is needed for that purpose, saying, “That’s obstruction under the federal statute,” referring to a federal law that already makes blocking access illegal.
The legal arguments in this case were multifaceted, since the First Amendment requires different standards depending on whether the speech restriction discriminates on the basis of viewpoint or content subject-matter, or by means of content-neutral regulations on the time, place, and manner of speech. Yet under any of these standards, it seems more likely that a majority of the justices think this law crosses a line the Constitution does not allow.
A decision is expected in June.
Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.