Buffer Zones: How Abortion Became a First Amendment Issue

By Natasha Kang

Natasha Kang is a rising senior at University of California, Davis.

Abortion, long considered a controversial issue, has gotten even more complicated. The debate no longer focuses solely on what happens in an abortion clinic, but also on what happens around the clinic. 

To protect prospective patients entering abortion clinics, Massachusetts law placed a fixed thirty-five foot “buffer zone” around facilities. The statute stipulates that the “entrance, exit or driveway” of a reproductive health care facility is protected by the buffer zone from anyone who is not: (1) a person entering or leaving the facility, (2) employees or agents of the facility, (3) a municipal agent such as an ambulance or law enforcement doing their job, or (4) a person merely passing the facility to reach another destination. [1] The law specifically does not mention those attempting to persuade prospective patients against terminating their pregnancies.

On January 9th, 2013, the First Circuit of Appeals ruled in favor of the law in McCullen v. Coakley. The court ruled that the law was a “content-neutral, narrowly tailored time-place-manner regulation” that protected the prospective patients and reproductive health care facility employees “without offending the First Amendment rights of others.” [2]

In the First Circuit court decision, Circuit Judge Selya seemed less than impressed with the arguments from plaintiffs McCullen et al., opponents of the buffer zone. Selya criticizes the inadequate factual basis for many of their claims as well as the lack of “developed argumentation.” [2]

Judge Selya reasons that there are other means of communication. Protestors can express their opinions through signs, sound amplification equipment, and costumes such as that of the grim reaper. Plaintiffs claimed they are not able to use “gentle discussions” with the prospective patients. However, the First Amendment, as stated by Judge Selya, does not guarantee the right to a preferred way of communication. [2]

The Supreme Court thought differently. In a unanimous decision on June 26, 2014, the Court ruled against the Massachusetts buffer zone law. [3] Chief Justice Roberts, delivering the majority opinion, ruled that the law is not consistent with the free speech rights of the First Amendment as it closes off a “substantial portion” of a “traditional public forum.”  Following this, he stated there were other ways of promoting safety such as laws against harassment. [4]

Interestingly, though the Court was unanimous in their decision, their reasoning did not perfectly align. Justice Scalia concurred with the reasoning that the law was content-based and under the First Amendment, the government cannot protect someone from speech they do not wish to hear. Justice Alito also concurred, arguing that the law discriminates based on viewpoint and unfairly silences opponents of abortion. [4]

The decision puts abortion clinics at unease. The Massachusetts law was created due to a history of violence at abortion clinics including past shootings. [5] Planned Parenthood League of Massachusetts’s chief executive, Martha M. Walz, claims that patients will be safe and that despite a tool being taken away, it was only one tool. Walz counters the ruling with the question of the constitutionality of the buffer zone around the Supreme Court. A federal law uses a buffer zone to protect the Court from protestors. This question may be answered, as a challenge to the constitutionality of the Supreme Court’s buffer zone is set for September. [6]

But attention should be paid to the Supreme Court’s reasoning. The First Circuit had said there were “alternative means of communication.” [2] Under the buffer zone law, people wanting to talk to prospective patients still could, though they had to do so at a distance. Rather than infringing upon free speech, it seems to be the right of the state to take steps to “ensure the safe passage of persons wishing to enter healthcare facilities.” [2] Although these plaintiffs may want to use the method of gentle communication, not everyone will use the same tactics. Walz herself has encountered a not-so-gentle protester yelling at her from close quarters when she was standing by a center’s door doing research.

From now on, abortion clinics and state legislatures supporting pro-choice ideas will have to be more creative in protecting these prospective patients from possible violence that may occur around these clinics. What laws we will see and what will become of the challenge to the Supreme Court’s own buffer zone will certainly be on the watchlist for many.
 

[1] Mass. Gen. Laws ch. 266, § 120E 1/2 (2007) (the Act).
[2] McCullen v. Coakley, 708 F.3d 1 (2013.
[3] Adam Liptak and John Schwartz, “Court Rejects Zone to Buffer Abortion Clinic,” The New York Times, June 26, 2014, http://www.nytimes.com/2014/06/27/us/supreme-court-abortion-clinic-protests.html.
[4] McCullen v. Coakley, 573 U. S. ____ (2014).
[5] John Kifner, “Anti-Abortion Killings: The Overview; Gunman Kills 2 at Abortion Clinics in Boston Suburb,” The New York Times, December 31, 1994, http://www.nytimes.com/1994/12/31/us/anti-abortion-killings-overview-gunman-kills-2-abortion-clinics-boston-suburb.html.
[6] Brett Logiurato, “Here’s The Ultimate Irony of the Supreme Court Banning ‘Buffer Zones’ At Abortion Clinics,” Business Insider, June 27, 2014, http://www.businessinsider.com/supreme-court-abortion-buffer-zones-decision-2014-6.


Photo Credit: Flickr user kbrookes