In a surprising unanimous decision Thursday, the Supreme Court ruled in McCullen v. Coakley that Massachusetts’ law forbidding people from coming within 35 feet of an abortion clinic entrance to talk to women seeking an abortion violates the Free Speech Clause of the First Amendment to the U.S. Constitution.
Chief Justice John Roberts wrote the majority opinion for five justices, joined by the four liberal members of the Court. He began by discussing Supreme Court precedents that sidewalks are a “traditional public forum,” where citizens are generally free to discuss any matter they choose.
Roberts described the Massachusetts statute, which only has narrow exceptions for clinic employees and similar individuals. He then wrote that the law was a content-neutral restriction on speech, and thus violates the First Amendment because it fails “intermediate scrutiny” (which in speech contexts means the law is not narrowly tailored to advance a significant public interest).
Roberts and the liberals ruled that the restriction is not narrowly tailored because it burdens a significant amount of legally-protected speech and is not the least-restrictive means available to achieve the government’s purposes.
Justice Antonin Scalia concurred in the judgment only that the Bay State’s law is unconstitutional, but he wrote a separate opinion, joined by Justices Anthony Kennedy and Clarence Thomas. Scalia wrote:
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.
The second half of the Court’s analysis today, invalidating the law at issue because of inadequate “tailoring,” is certainly attractive to those of us who oppose an abortion-speech edition of the First Amendment. But think again. This is an opinion that has Something for Everyone, and the more significant portion continues the onward march of abortion-speech-only jurisprudence.
Scalia went on to say that this statute–as suggested by its title, the Massachusetts Reproductive Health Facilities Act–is not content-neutral, and instead specifically targets speech regarding abortion. Since it is content-based discrimination, the Court should have applied what is called “strict scrutiny,” a much more demanding standard than intermediate scrutiny, and struck down the statute on this higher standard that would provide broader protections for pro-life speakers in the future.
Justice Samuel Alito also wrote a separate opinion concurring only in the Court’s judgment. He wrote that beyond content discrimination, this law amounts to viewpoint discrimination, which is always, and automatically, a violation of the First Amendment, regardless of strict scrutiny.
Alito offered the example of a woman, nervous about having an abortion, approaching an abortion clinic. He said the law would allow a clinic employee to approach her to encourage her that she could get information from the clinic to prove how safe the abortion would be, but it would forbid a pro-life counselor from approaching her to discuss the health risks of having an abortion.
Therefore, Alito concluded, this was not content discrimination because both speakers would be discussing abortion. It instead allowed only one side of the issue to be communicated.
This case is a major win for Prof. Mark Rienzi, the constitutional law professor from Catholic University who argued the case. Rienzi managed to keep every liberal justice on his side on an abortion-related case.
Although split between three opinions, the Court’s 9-0 decision Thursday was a major victory for anti-abortion activists–a major setback for pro-abortion forces.
Ken Klukowski is senior legal analyst for Breitbart News and a fellow with the American Civil Rights Union. Follow him on Twitter @kenklukowski.