The Supreme Court struck down a Massachusetts statute that created a 35-foot buffer zone around the entrances and driveways to abortion clinics on Thursday in a unanimous decision in McCullen v. Coakley.
Just the day before,if Eleanor McCullen had stepped over one of the painted lines outside a Massachusetts abortion clinic to hand out a leaflet,she would have been arrested.
“It’s a big win for Mrs. McCullen and a big win for the women who get help on the sidewalks,” Rienzi said.
Massachusetts Attorney General Martha Coakley said in a statement that she would work with the governor,legislature and advocates to create protective legislation that meets the Supreme Court’s requirements.
“With today’s decision,our work begins again. We are not going to give up our fight to make sure women have safe access to reproductive health care,” Coakley said.
Massachusetts enacted the Massachusetts Reproductive Health Care Facilities Act in 2000 to try to decrease clashes between abortion opponents and advocates of abortion rights,especially at one Boston clinic where gatherings are common on Saturdays. That law made it illegal for people within an 18 foot radius of a clinic’s entrance to get within 6 feet of someone to talk to her or hand her a leaflet without her consent. The law was hard to enforce,so in 2007,lawmakers amended it to create the 35-foot buffer zone. Clinic employees and passersby are allowed to be in the zone.
The law,meant to deter protesters of the angry,sign-waving variety,also affected those like McCullen. Her tactic is called “sidewalk counseling,” and she and others calmly talk to women and offer them leaflets,Chief Justice John G. Roberts Jr. wrote in the opinion. They weren’t nearly as effective when restricted by the buffer zone.
“If all that the women can see and hear are vociferous opponents of abortion,then the buffer zones have effectively stifled petitioners’ message,” Roberts wrote.
“It is no accident that public streets and sidewalks have developed as venues for the exchange of ideas,” Roberts wrote. “Even today,they remain one of the few places where a speaker can be confident that he is not simply preaching to the choir.”
Although the court determined the law was “content neutral,” meaning it didn’t discriminate against protesters because its purpose was to protect public safety,the court ruled that the Massachusetts law was overbearing. Roberts said the law showed Massachusetts’ “failure” to look for better methods. For example,sidewalk obstructions could be resolved with local ordinances rather than a blanket block.
“For a problem shown to arise only once a week in one city at one clinic,creating 35-foot buffer zones at every clinic across the Commonwealth is hardly a narrowly tailored solution,” Roberts wrote.
The court’s decision will affect any city or state that wants to construct a buffer zone,Georgetown Law professor Susan Bloch said. It’s not just abortion-specific or Massachusetts-specific,and it shows that states can’t single out a specific group if they choose to create a buffer zone. The decision doesn’t mean a city or state can’t protect certain areas,they just need to “read carefully” to see what they can do under the law.
“They need to make sure their effort to buffer is not overbroad,” Bloch said.
Bloch said the unanimous decision in this case was significant and showed that Massachusetts “went too far” when creating the act.
“The Supreme Court is very sensitive to free speech principles we hold so dear,” Bloch said.
In another highly anticipated ruling,the Supreme Court struck down the so-called recess appointments President Barack Obama made to the National Labor Relations Board in 2012 between the Senate’s Jan. 3 and Jan. 6 pro forma sessions,when it wasn’t conducting business. The court decided unanimously in National Labor Relations Board v. Canning.
Obama justified the appointments with the Recess Appointments Clause in the Constitution,which gives presidents the power “to fill up all Vacancies that may happen during the Recess of the Senate.” Normally,the Senate must confirm all appointments as a check on the executive branch,but presidents have historically used the clause to make appointments without the Senate’s approval.
The court determined a “recess” could be considered breaks between sessions of Congress and breaks within sessions,but a break would have to be longer than 10 days for the president to make an appointment without approval.
Justice Stephen G. Breyer wrote that the three days between Senate sessions was not a long enough break. He wrote that the clause couldn’t apply because “the Senate is in session when it says that it is,provided that,under its own rules,it retains the capacity to transact Senate business.” With technology such as email available,it would not have been difficult to notify the Senate of an appointment.
Obama and future presidents retain the ability to make recess appointments,but the court narrowed their window to do so.
“Here,as in other contexts,friction between the branches is an inevitable consequence of our constitutional structure,” Breyer wrote.
Reach Reporter Kate Winkle at [email protected] or 202-326-9865. SHFWire stories are free to any news organization that gives the reporter a byline and credits the SHFWire.