Abortion Protest Case Tests First Amendment Boundaries

Supreme Court to review Massachusetts law that created 35-foot buffer at clinics.

, The National Law Journal

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Protestors behind the 35-foot buffer zone outside the Planned Parenthood Clinic in Boston
Protestors behind the 35-foot buffer zone outside the Planned Parenthood Clinic in Boston

Abortion returns to the U.S. Supreme Court docket on Jan. 15, in the form of a First Amendment dispute over the right to protest outside reproductive health clinics.

But even though it will be decided as a free speech case, there is a sense that the buffer-zone dispute could be the first in a new round of Supreme Court litigation that will affect the deeply divisive issue of a woman's right to an abortion.

At issue in McCullen v. Coakley is a Massachusetts law creating a fixed 35-foot buffer zone around entrances to facilities that provide abortions. Within that zone, identified by painted lines, only staff, patients and passersby are allowed. Protesters claim the law improperly singles them out for exclusion because of their antiabortion views.

Many of the parties that do battle over abortion rights have filed briefs in the McCullen case, and some make a direct connection between free speech and abortion. Abortion rights, the American Civil Liberties Union says, "can quickly become meaningless if they cannot be exercised without running a gauntlet of violence, intimidation, and harassment." Carrie Severino of the Judicial Education Project counters that the law "undermines the very essence of the First Amendment by silencing one side of what may be the most profound and most deeply emotional political debate of our day." Severino wrote a brief telling the story of 12 women who regret having had abortions.

The court this term will also hear two other cases in which the abortion issue looms in the background: Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius, which challenge the Affordable Care Act requirement that employers provide contraceptive coverage in their health insurance plans. The companies claim that it would violate their religious beliefs to offer some contraceptives that in effect trigger abortions.

Not far behind are lawsuits over the wave of abortion restrictions that have been enacted by state legislatures across the country, including bans on abortion after the 20th week of a pregnancy. The court agreed to weigh an Oklahoma restriction earlier this term, but then dismissed the case.

The court's decision to consider the McCullen case and the Oklahoma dispute, even briefly, worries Roger Evans of Planned Parenthood Federation of America, a veteran of decades of abortion litigation. "It makes me concerned that the Supreme Court is about to wade into that area again," he said.

WIDE REACH

As usual, Anthony Kennedy may be the crucial justice in the equation. On June 28, 2000, the court issued two key abortion rulings: one striking down a Nebraska "partial-birth" abortion ban, the other upholding a Colorado buffer zone around abortion clinics. Kennedy dissented strongly in both cases. In 2007, with more conservative members, the court reversed course and upheld a federal partial-birth abortion ban — in a ruling written by Kennedy.

The McCullen case may grant Kennedy's wish to reverse the Colorado buffer-zone ruling as well. First Amendment lawyer Floyd Abrams of Cahill Gordon & Reindel thinks a majority of the court will decide that clinic protesters are "entitled to the highest level of First Amendment protection," unless their actions block or interfere with access to the clinics.

With the stakes that high, the McCullen case has attracted more than two dozen friend-of-the-court briefs. First Amendment scholars including Eugene Volokh of University of California at Los Angeles School of Law and Richard Garnett of University of Notre Dame Law School filed a brief opposing the buffer zone for stifling speech in the name of "avoiding offense" to listeners, even though the protests take place on public streets.

Abortion rights groups counter that the buffer zone is about much more than avoiding offense. "Reproductive health care facilities regularly encounter violence and obstructed access to this day," wrote Maria Vullo of Paul, Weiss, Rifkind, Wharton & Garrison on behalf of 31 abortion rights groups that want the buffer zone upheld. Writing for victims' rights groups, Lisa Blatt of Arnold & Porter told the court that rape victims often go to the same clinics and deserve protection from harassment by protesters.

Federal, state and local governments argue that striking down the Massachusetts law would put other buffer zones in limbo and jeopardize public safety at a time of budget cuts. Localities have created zones around ATMs, circuses, funeral homes and other locations — all of which could be called into question.

"If the court overturns Massachusetts, we're going to have to rewrite a bunch of ordinances," said Lisa Soronen, executive director of the State and Local Legal Center.

Contact Tony Mauro at tmauro@alm.com.

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