Supreme Court arguments today on abortion-clinic protest zones; Update: Skepticism over the law?

posted at 10:01 am on January 15, 2014 by Ed Morrissey

On Monday, the Supreme Court held hearings on an overreach of executive power in a fight between the branches of government over presidential appointments. Today they tackle a thornier issue between public safety, the First Amendment, and preferential treatment of speech. Massachusetts passed a law (as did several other states) requiring a buffer zone between abortion clinics and protesters that pushed the latter at least 35 feet away from the facility in order to demonstrate and conduct “sidewalk counseling” to prevent abortions. The protesters claim that the buffer zone violates their First Amendment rights because it privileges their opponents in relation to the positioning of the protests.

At issue is not just the state law, but also an earlier Supreme Court decision that upheld a similar law in a different context:

Anti-abortion protesters challenged the law, saying it violated their freedom of speech rights under the First Amendment of the U.S. Constitution by preventing them from standing on the sidewalk and speaking to those entering clinics. The protesters say their main aim is to counsel women in an effort to deter them from having abortions.

The 2007 law, which amended an existing statute, restricted conduct outside abortion clinics by introducing a 35-foot (11-meter) no-entry zone that allowed only patients, staff, passersby and emergency services to enter.

The Reuters write-up misses an important argument in this case, which Politico noted on Monday and I linked previously (emphasis mine):

The Massachusetts law set up the 35-foot zone around abortion clinics. The only people who can enter are those going to and from the clinic, passersby and employees of the clinic and their “agents” conducting official business.

That last exemption, McCullen’s lawyers say, allows Planned Parenthood employees and escorts to operate within the buffer zone but denies access to the protesters. That unequal prohibition on speech, they say, is unconstitutional.

“Massachusetts’s statute allows only employees and agents of abortion clinics to speak, and it isn’t hard to guess what their viewpoint on abortion is,” wrote 11 attorneys general, led by Michigan’s Bill Shuette, who support McCullen’s case. “When the government draws distinctions based on viewpoint, it has gone too far.”

The decision will come down to whether the law essentially privileges one side and whether it is a rational response to serve the state’s pressing interest in preventing violence.  The violence was rare in the first place and became more rare over the last twenty years, and the amount of distance in this law may have the court inclined to consider whether the state intended to handicap the pro-life message.

Still, don’t expect miracles in this case. The precedent from 14 years ago, Hill vs Colorado, will weigh heavily in the court’s collective mind, but there are a couple of differences.  The Colorado law upheld by the court restricted demonstrations to a zone 100 feet outside the clinic, but only prevented individuals from coming within eight feet of those entering or exiting the clinics — well within hearing range. The decision relied heavily on that point to find Colorado’s statute “content neutral,” which allowed the court to uphold the statute. If the Massachusetts statute forbids any protesters from approaching at all past the 35-foot line, that could be a big issue for content neutrality. Second, the passage of time without regular eruptions of violence could erode the case for a pressing state interest in barring political speech from public property around abortion clinics in particular, which could also have the court considering whether these restrictions are actually “content neutral” at all.

The safest bet in this case is that the court will split on it — it went 6-3 for Colorado in Hill — which means we won’t see a decision until May or June. The questions from the Court today will be interesting to see what they’re actually considering, but don’t take skepticism itself as an indicator of which direction the Court will move.

Update: Apparently the session did not go well for Massachusetts’ attorneys:

The Supreme Court seems likely to strike down a Massachusetts law setting a 35-foot protest-free zone outside abortion clinics.

Liberal and conservative justices alike expressed misgivings about the law during arguments at the high court Wednesday. They questioned the size of the zone and whether the state could find less restrictive ways of ensuring patient access and safety.

Again, don’t read too much into this, as the questions from the justices would have to take the form of skepticism over the law in order for Massachusetts to answer the complaint. But these are the grounds on which this case differs from Hill, and that’s probably going to be where this case gets decided.


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Not holding my breath…

OmahaConservative on January 15, 2014 at 10:04 AM

Is there any buffer zone requirement for protests around gun shops?

Just wondering.

Akzed on January 15, 2014 at 10:05 AM

I don’t like “free speech” zones at all.

MoreLiberty on January 15, 2014 at 10:09 AM

Arguments over “protest zones” outside abortion clinics, have made it all the way to the SCOTUS ?

Words fail me . . . . . .
.

Is there any buffer zone requirement for protests around gun shops?

Just wondering.

Akzed on January 15, 2014 at 10:05 AM

.
It would be really cool, if someone brought that up, wouldn’t it? . : )

listens2glenn on January 15, 2014 at 10:14 AM

The 2007 law, which amended an existing statute, restricted conduct outside abortion clinics by introducing a 35-foot (11-meter) no-entry zone that allowed only patients, staff, passersby and emergency services to enter.

Why would they have to be worried about emergency services? I thought abortions were simple outpatient “procedures.”

The pro-murder crowd here in VA even screeched when the state imposed ANY sort of medical safeguards on the killing factories even though barbershops had stricter health standards.

Happy Nomad on January 15, 2014 at 10:16 AM

Is there any buffer zone requirement for protests around gun shops?

Just wondering.

Akzed on January 15, 2014 at 10:05 AM

Ssshhhhhhhh. Personally I would enjoy shoving my way through the limp-wristers who might decide to protest outside a gun store though I’ve never seen so much as one person doing such a thing around here.

Bishop on January 15, 2014 at 10:19 AM

The Abortion itself is “violence”. If you are going to kill your kid, don’t whine about someone trying to change your mind out of compassion for innocent life.

I don’t care if it is “legal”.

Mord on January 15, 2014 at 10:20 AM

First off, I consider all abortion wrong. In the rare situation where the life of the mother is in danger, I think they should try to save both lives.

That said, folks will do the human chain, sitdown, etc if the distance barrier is removed. I think knowing that this will happen, will prevent the justices from removing the restriction.

Sapience on January 15, 2014 at 10:28 AM

After striking down the 20 week abortion limit I’d don’t hold out any hope. It’s open season on babies in this country.

Cindy Munford on January 15, 2014 at 10:32 AM

I’m a bit torn. While I want to prevent abortions, protest zones are important to me, because we have plenty of protestors that are not exactly nice in my town during our big festival each year. Our small town of 6000 or so has a protest zone, simply because we HAD to have it after confrontations and fights over the years broke out. This case would destroy those protest zone regulations, and we’d be back to the fighting and so forth.

Vanceone on January 15, 2014 at 10:33 AM

…they’re talking about “buffers” ?
…Godfather?

KOOLAID2 on January 15, 2014 at 10:35 AM

We wouldn’t want to make anyone feel uncomfortable about their decision to kill their child.

NavyMustang on January 15, 2014 at 10:42 AM

soon?

Eph on January 15, 2014 at 10:44 AM

Why is the supreme court worrying about protecting the rights of murdering women?

They don’t need “protecting” they need to be put in prison.

Pablo Honey on January 15, 2014 at 10:49 AM

Is there any buffer zone requirement for protests around gun shops?

Just wondering.

Akzed on January 15, 2014 at 10:05 AM

Or, Marine recruiting offices?

Fallon on January 15, 2014 at 10:54 AM

Or, Marine recruiting offices?
Fallon on January 15, 2014 at 10:54 AM

Or Churches and Church sponsored events.

tommyboy on January 15, 2014 at 11:02 AM


state’s pressing interest in preventing violence

.

Like this violence

http://www.youtube.com/watch?v=e6yaeD-E_MY

yep…. protect’n & serve’n

BTW….. 2 of the goons were found not guilty…. America home of the Free

roflmmfao

donabernathy on January 15, 2014 at 11:06 AM

This case is very reminiscent of Westboro Baptist and previous court cases surrounding free speech. The last I heard was THIS from last August:

Missouri can keep protesters 300 feet away from around a funeral without violating free speech rights, a federal appeals court in St. Louis ruled on Friday.
The Missouri law had been challenged by the Westboro Baptist Church, which has held hundreds of anti-gay protests around the country in recent years.

The Missouri law, as originally written, would violate protesters’ free speech rights, the appeals court said. But, by judicially removing one word from the law, the court was able to allow the buffer zone to go into effect.

The bottom line is that Missouri can enforce a 300-foot buffer zone around funerals for the hour before and after a service.

Now, if the same outcome applies to anti-abortion protests outside clinics, wouldn’t it be probable that the same sort of “buffer zone” in place already have had precedence? Or is there something more recent on the federal level surrounding Westboro’s protests that I missed?

I think most of us here can agree that Westboro and their protests are despicable. Same for abortion on demand. But it seems to me there’s not much difference when it comes to these “protest zones” in either group.

If we protect the free speech of groups we support, we also have to do the same for those groups we abhor. Just sayin’.

JetBoy on January 15, 2014 at 11:16 AM

*correction, not last August, but April.

JetBoy on January 15, 2014 at 11:17 AM

If a couple of perverts can walk into a bakery and, with the pointy end of the government, force the owner to bake a cake for their wedding, a protester should be allowed to get as close as they like to the charnel house.

CurtZHP on January 15, 2014 at 11:18 AM

Is there any buffer zone requirement for protests around gun shops?

Just wondering.

Akzed on January 15, 2014 at 10:05 AM

Are you kidding? Those who would protest the existence of gun shops won’t go near them because GUNS!!!!!.

Bitter Clinger on January 15, 2014 at 11:23 AM

Are you kidding? Those who would protest the existence of gun shops won’t go near them because GUNS!!!!!.

Bitter Clinger on January 15, 2014 at 11:23 AM

Exactly. These are the same people who will gladly slap Christians around with impunity but won’t say an unkind word to Muslims, because Christians don’t tend to hack your head off when offended.

CurtZHP on January 15, 2014 at 11:32 AM

This will be an interesting case.

Schadenfreude on January 15, 2014 at 12:18 PM

Is there any buffer zone requirement for protests around

gun shops?

Just wondering.

Akzed on January 15, 2014 at 10:05 AM

.
Are you kidding? Those who would protest the existence of gun shops won’t go near them because GUNS!!!!!.

Bitter Clinger on January 15, 2014 at 11:23 AM

.
I thought there had already been a well documented instance of anti-gun protesters blocking the doorway to a gun shop.

listens2glenn on January 15, 2014 at 12:27 PM

It’s the Roberts Court, which means look for the most illogical, curious and confusing interpretation of the Constitution.

Marcus Traianus on January 15, 2014 at 12:42 PM

I’m a bit torn. While I want to prevent abortions, protest zones are important to me, because we have plenty of protestors that are not exactly nice in my town during our big festival each year. Our small town of 6000 or so has a protest zone, simply because we HAD to have it after confrontations and fights over the years broke out. This case would destroy those protest zone regulations, and we’d be back to the fighting and so forth.

Vanceone on January 15, 2014 at 10:33 AM

If fight break out, people should be arrested for assault and battery. They should be able to stand and scream at each other no matter what.

cptacek on January 15, 2014 at 1:15 PM

If a couple of perverts can walk into a bakery and, with the pointy end of the government, force the owner to bake a cake for their wedding, a protester should be allowed to get as close as they like to the charnel house.

CurtZHP on January 15, 2014 at 11:18 AM

Could you imagine? A ‘protest zone’ for someone ordering a SSM cake. “Nope, sorry. You have to stay 10 yards outside my door.”

cptacek on January 15, 2014 at 1:16 PM

The case is not about abortion rights:

The AFL-CIO, concerned about limits on picketing, also is calling for the law to be struck down.

Quod erat demonstrandum.

blammm on January 15, 2014 at 1:40 PM

That said, folks will do the human chain, sitdown, etc if the distance barrier is removed. I think knowing that this will happen, will prevent the justices from removing the restriction.

Sapience on January 15, 2014 at 10:28 AM

There still are less restrictive means of stopping such conduct, like barring people from blocking entrances. This law blocks protestors from walking alongside people walking to the door of the clinic. There’s a difference.

blammm on January 15, 2014 at 1:44 PM

If we protect the free speech of groups we support, we also have to do the same for those groups we abhor. Just sayin’.

JetBoy on January 15, 2014 at 11:16 AM

Abortion fans are perfectly within their rights to set up protest zones around birthing clinics and hospital OB wards, but they don’t seem to be doing that.

The point at issue is that this law privileges one side (abortion proponents) but not the other side.

“Massachusetts’s statute allows only employees and agents of abortion clinics to speak, and it isn’t hard to guess what their viewpoint on abortion is,”

AesopFan on January 15, 2014 at 6:14 PM

Exactly. These are the same people who will gladly slap Christians around with impunity but won’t say an unkind word to Muslims, because Christians don’t tend to hack your head off when offended.

CurtZHP on January 15, 2014 at 11:32 AM

Speak for yourself.

Immolate on January 15, 2014 at 6:36 PM

Oh my. I’m on pins and needles waiting to see whose rights the exalted sophists will decide for.

Spectator sham democracy is a thrill a minute!

It’s nearly as fun as the speculative special pleadings they might bless us with. Popcorn time!

Axeman on January 16, 2014 at 12:34 AM