Unanimous Supreme Court Strikes Massachusetts Buffer Zone Law


On Thursday, a unanimous U.S. Supreme Court held that a Massachusetts law that provides for a 35-foot buffer zone around abortion clinics is unconstitutional.

The decision reverses a federal appeals court decision that had held that the buffer zone was constitutional.

The ruling, while unanimous, did not throw out buffer zones around abortion clinics entirely. According to the Court, the Massachusetts buffer zone law violates the First Amendment because it burdens more speech than necessary.

According to the Court, clinics should rely first on existing laws like local traffic ordinances to keep clinic protesters at a distance. Furthermore, the Court said, Massachusetts had not shown that it “seriously undertook” efforts to address clinic protests and blockades with the legal tools already available prior to enacting the buffer zone. Therefore, the Court held, the state could not show that the law at issue was narrowly tailored enough to meet the requirements of the First Amendment.

“Petitioners wish to converse with their fellow citizens about an important subject on the public streets and sidewalks—sites that have hosted discussions about the issues of the day throughout history,” the Court wrote. “But here the Commonwealth has pursued those interests by the extreme step of closing a substantial portion of a traditional public forum to all speakers. It has done so without seriously addressing the problem through alternatives that leave the forum open for its time-honored purposes.”

Reproductive health and rights advocates expressed disappointment in the decision Thursday. “No one should be physically attacked or threatened for simply seeking out healthcare. Buffer zone laws, like the one in Massachusetts, create a safe space, which allows reproductive healthcare facilities to meet the needs of patients, including contraception, cervical cancer screenings, and abortion care.” said Jessica Gonzalez-Rojas, executive director of the National Latina Institute for Reproductive Health, in a statement following the opinion. “These facilities are often the only places where low-income women can access these critical services. Despite this disappointing decision, we will continue to work with advocates and policymakers to ensure that Latinas and their providers can seek and provide care without fear of violence, threats, or intimidation.”

Since enactment of the Massachusetts law, at least four states or local municipalities have enacted buffer zone laws.

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  • feloneouscat

    Okay, I’m confused. How can you use traffic ordinances to keep protesters away? Isn’t that dangerously circular? Is the court saying “You have other options but didn’t use them?” – i.e. giving Mass. a court sanctioned way of implementing buffer zones?

    Sorry, I’m not a lawyer… so this seems all rather confusing.

  • fiona64

    One’s right to free speech is not accompanied by the right to a captive audience — which, in effect, is what the Roberts court has now given to the anti-choice asshats who feel that they should be able to verbally assault women seeking health care.

    • goatini

      I am shocked by this decision, and even more shocked at the unanimity. The only two things I think can possibly be happening here are (1) this is the deal struck for a decision against radical theocratic Hobby Lobby et al; or (2) threats of bodily harm to the families of the progressive Justices, if they voted to protect citizens from stalking and harassment, have been made.

    • Cactus_Wren

      Oh, but they’re not a captive audience at all! If you don’t want to listen, you can just skip your Pap smear or breast exam, right? {spit}

  • Lynnsey

    How long until one of these “protesters” is less sweet old granny McCullen and more John Salvi?

    • goatini

      McCullen isn’t “sweet”, she’s a vile perpetrator of hate speech.

      • Lynnsey

        You and I know that, but there is a reason they chose her to be the public face of this case. She looks like what people like Scalia pretend these people are like…just offering a friendly prayer instead of screaming obscenities and chasing you from you car to the door.

        • goatini

          And HOW is obstructing access to medical care, and forcing lying propaganda on innocent patients, “free speech”?

          • Lynnsey

            You’ve got me. I’ve been asking that the whole time. That these people need to be right up in others’ faces in order to “protest” tells you all you need to know about what they’re actually doing as far as I’m concerned. Even for those who aren’t overtly physically menacing anyone, there is no right to demand that someone entertain your unsolicited counsel.

  • purrtriarchy

    Good article on salon, relating how violent and disruptive these protestors can be:
    http://www.salon.com/2014/06/26/do_what_we_tell_you_to_do_or_we_will_kill_you/

  • cvxxx

    However it may be a blessing is he protesters ever become violent then the tide will turn quickly against them and the court will have to revisit this decision.

  • Chris Ranmore

    Whilst the Supreme Court is stuffed with Catholics we will continue to see this kind of idiocy. Obama hasn’t helped with the appointment of Sotomayor.

  • JoyceArthur

    The Court got it wrong because it’s not about “Petitioners wish[ing] to converse with their fellow citizens about an important subject on the public streets and sidewalks.” It’s about protecting the safety, privacy, and rights of a specific sub-group of vulnerable people in a narrow circumstance – patients about to access a legal and necessary healthcare service.

    That makes it very different from simple protection of “free speech.” It looks like the Court may have also overlooked the aggressive and dangerous nature of this so-called “conversing”, which is generally one-way and unwanted, provokes anxiety and fear in the compelled listener, and raises the risk of violence outside clinics.

    • bitchybitchybitchy

      I would suggest to the Supreme Court that screaming “Abortion is murder”, “Mommy, please don’t kill me” is NOT conversation. Falling down in front of women attempting to enter a clinice is NOT conversation.

      • fiona64

        Grabbing women and shoving leaflets into their hands isn’t conversation, either; it’s assault and battery.

        • bitchybitchybitchy

          Indeed it is. It really angers me that the entire court stuck their collective heads in the sand and pretended that the very real harassment of women exercising their constitutional right to make their own decisions isn’t important. Personally I”d like to see those justices face a gauntlet of protesters EVERY SINGLE DAY of every term and to have to walk to their office through lines of people screaming at them and grabbing at them.

      • http://batman-news.com Mummel18000

        Somewhere on youtube I saw a “pro life” moron actually ran over by a car when attempting to stop it from entering a clinics premises. I still have a problem deciding if I liked it or not. When writing, I am more inclined to like it…no one forced him to be there.

        • bitchybitchybitchy

          That person put himself in harm’s way when he foolishly did that. I can’t say I like it, but I like people who attempt to impose their beliefs on women even less.

  • jruwaldt

    I’m not entirely surprised that Sotomayor signed on. She’s shown some sympathy for the anti-choice side and may feel that as a Catholic she has to lean anti. However, what got Kagan and Ginsburg to join them? I’ve never heard of them belonging to an anti-choice Jewish sect, and they’re usually more understanding of women’s concerns.

  • lady_black

    There’s always stand your ground.

    • Shan

      Right? I keep saying it: pepper spray. Then the protesters will WANT a buffer zone.

      • lady_black

        Pepper spray, a hatpin, whatever it takes. I also had a thought that now that sidewalks are open for business, that means churches and banks, etc. can be targets for protesters. Let’s see how long this sentimental crap ruling lasts.

        • bitchybitchybitchy

          I have fond memories of cheering on two young women years ago who were picketing the Catholic student center near my alma mater.

        • goatini

          We need to make sure that ALL the actions of the antis are recorded, and that there are witnesses that will attest to actions that warrant defense. You KNOW they will be recording, trying to make one of their fake “Violent Pro Aborts” videos in which THEY instigate the result that they record.

          • colleen2

            Quite so. Indeed documenting and distributing the evidence of what the ‘gentle sidewalk counseling’ of social conservatives looks like is the best weapon. We no longer have actual investigative reporting so the onus is on individual citizens to collect and distribute evidence. This would be useful at election time too. If Abu Grahib taught us anything, it was the value of damning photographic evidence.

      • bitchybitchybitchy

        A travel size can of hairspray, insecticide or lysol could also be used to ward off the sidewalk harpies.

        • Shan

          Maybe pepper spray and all that is too violent. Diluted salt water might work just to make a point and not get the user arrested for assault. I keep a bottle of it on my front porch to train-remind the random cats in the neighborhood to stay away.

          • lady_black

            There’s no such thing as “too violent” for someone who is putting their hands on you, or screaming in your face.

          • Shan

            Good point, but I’d hate to see the protesters go the Phelps route of goading people into “assaulting” them. Can’t keep your clinic appointment if you’re in the clink.

          • lady_black

            Phelps was just obnoxious. I’ve never heard about him touching anyone.

          • Shan

            Ack! My eyes just saw the words “Phelps” and “touching” way too close together.

  • goatini

    Is the sidewalk or street in front of Eleanor McCullen’s house public property? If so, then Boston area reproductive freedom fighters know what to do.

    I’m not ready to make nice
    I’m not ready to back down
    I’m still mad as hell and
    I don’t have time to go round and round and round

    • MsC

      Yep. Do unto the misogynist anti-choicers everything they have done unto patients, clinic employees, escorts, and anyone else who happened to be in their line of fire. Take their pictures. Get their license plate numbers. Get up in their grill and tell them how ugly and worthless they are, and how their god is imaginary. Publish pictures of themselves and their families, and their personal information online and on “Wanted” posters. Offer sidewalk counseling outside their “crisis pregnancy centers” with information on abortion and Planned Parenthood.
      Karma. It’s a harsh mistress, anti-choicers, and it’s coming your way.

      • Ramanusia

        The sidewalk counseling outside of those fraudulent pregnancy centers is a must. Why isn’t anyone doing that?

        • Jennifer Starr

          They should. If the CPCs object to being forced to disclose that they are not actual medical clinics, that they don’t refer for abortions or offer contraception, we should do it for them–stand out there with signs telling the public the truth.

          • Ramanusia

            It’s also an opportunity to correct the outright lies they tell these women.

      • colleen2

        We really should be able to demonstrate in front of churches on Sundays. Those harmed by religious institutions should have freedom of speech too and the folks attending the services might not be aware of the immense harm the church they support does to others. WE could gently sidewalk counsel them.

    • Daidri Peysen-Vejil

      Abortion should be outlawed in all cases except:
      Rape
      Incest
      The life of the mother is at risk

      ALL other abortions are those of convienence and need never take place. Whatever happened to personal responsibility ? How about having some character ? Life in unpredictable ladies. When you have sex you take a risk. Why not just be decent human beings ? Have the baby and put it up for adoption. Oh, I forgot. That would interfere with YOUR life. Much easier to snub out another human being that grow the hell up.

      • kitler

        Why a rape exception?

        How is a rape baby any different from a non rape baby?

        • goatini

          Well, we know that person isn’t “pro-life”, s/h/it is just a vicious misogynist who thinks females should be punished for deliberate non-procreative sex.

          PS, love your nouveau nom du jour!
          http://tinyurl.com/pqsrn2f

          • kitler

            Thanks!

            i totally stole it from The Daily Show!

            I think I”ll use that pic as my avatar.

      • goatini

        Women ovulate 300 to 400 eggs in a lifetime. 50-80% of the VERY few eggs that get fertilized never implant in the uterine lining and are sloughed off as bodily waste and flushed down the toilet. 2/3 of all human embryos fail to develop successfully. Based on science and mathematics, you have a HELL of a nerve wanting to impose mandatory pregnancy and gestational slavery on ALL women, regardless of THEIR lives, educational and career goals, and family and community responsibilities. YOU have NO character, NO morals, and NO respect for living, breathing WOMEN. Women are NOT livestock.

      • kitler

        If pregnancy is a minor inconvenience then please explain why rape or incest exemptions? If it is so minor…shouldn’t there be nothing wrong with forcing a rape victim to gestate?

        And if pregnancy is so minor, explain this list of side effects:

        Normal, frequent
        or expectable temporary side effects of pregnancy:

        exhaustion (weariness
        common from first weeks)

        altered appetite
        and senses of taste and smell

        nausea and vomiting
        (50% of women, first trimester)

        heartburn and indigestion

        constipation

        weight gain

        dizziness and light-headedness

        bloating, swelling,
        fluid retention

        hemmorhoids

        abdominal cramps

        yeast infections

        congested, bloody
        nose

        acne and mild skin
        disorders

        skin discoloration
        (chloasma, face and abdomen)

        mild to severe backache
        and strain

        increased headaches

        difficulty sleeping,
        and discomfort while sleeping

        increased urination
        and incontinence

        bleeding gums

        pica

        breast pain and
        discharge

        swelling of joints,
        leg cramps, joint pain

        difficulty sitting,
        standing in later pregnancy

        inability to take
        regular medications

        shortness of breath

        higher blood pressure

        hair loss

        tendency to anemia

        curtailment of ability
        to participate in some sports and activities

        infection
        including from serious and potentially fatal disease

        (pregnant women are immune suppressed compared with
        non-pregnant women, and
        are more susceptible to fungal and certain other diseases)

        extreme pain on
        delivery

        hormonal mood changes,
        including normal post-partum depression

        continued post-partum
        exhaustion and recovery period (exacerbated if a c-section
        — major surgery — is required, sometimes taking up to a full year to
        fully recover)

        Normal, expectable,
        or frequent PERMANENT side effects of pregnancy:

        stretch marks (worse
        in younger women)

        loose skin

        permanent weight
        gain or redistribution

        abdominal and vaginal
        muscle weakness

        pelvic floor disorder
        (occurring in as many as 35% of middle-aged former child-bearers
        and 50% of elderly former child-bearers, associated with urinary and rectal
        incontinence, discomfort and reduced quality of life — aka prolapsed utuerus,
        the malady sometimes badly fixed by the transvaginal mesh)

        changes to breasts

        varicose veins

        scarring from episiotomy
        or c-section

        other permanent
        aesthetic changes to the body (all of these are downplayed
        by women, because the culture values youth and beauty)

        increased proclivity
        for hemmorhoids

        loss of dental and
        bone calcium (cavities and osteoporosis)

        higher lifetime risk of developing Altzheimer’s

        newer research indicates
        microchimeric cells, other bi-directional exchanges of DNA, chromosomes, and other bodily material between fetus and
        mother (including with “unrelated” gestational surrogates)

        Occasional complications
        and side effects:

        complications of episiotomy

        spousal/partner
        abuse

        hyperemesis gravidarum

        temporary and permanent
        injury to back

        severe
        scarring
        requiring later surgery
        (especially after additional pregnancies)

        dropped (prolapsed)
        uterus (especially after additional pregnancies, and other
        pelvic floor weaknesses — 11% of women, including cystocele, rectocele,
        and enterocele)

        pre-eclampsia
        (edema and hypertension, the most common complication of pregnancy, associated
        with eclampsia, and affecting 7 – 10% of pregnancies)

        eclampsia (convulsions,
        coma during pregnancy or labor, high risk of death)

        gestational diabetes

        placenta previa

        anemia (which
        can be life-threatening)

        thrombocytopenic
        purpura

        severe cramping

        embolism
        (blood clots)

        medical disability
        requiring full bed rest (frequently ordered during part of
        many pregnancies varying from days to months for health of either mother
        or baby)

        diastasis recti,
        also torn abdominal muscles

        mitral valve stenosis
        (most common cardiac complication)

        serious infection
        and disease (e.g. increased risk of tuberculosis)

        hormonal imbalance

        ectopic pregnancy
        (risk of death)

        broken bones (ribcage,
        “tail bone”)

        hemorrhage
        and

        numerous other complications
        of delivery

        refractory gastroesophageal
        reflux disease

        aggravation of pre-pregnancy
        diseases and conditions (e.g. epilepsy is present in .5%
        of pregnant women, and the pregnancy alters drug metabolism and treatment
        prospects all the while it increases the number and frequency of seizures)

        severe post-partum
        depression and psychosis

        research now indicates
        a possible link between ovarian cancer and female fertility treatments,
        including “egg harvesting” from infertile women and donors

        research also now
        indicates correlations between lower breast cancer survival rates and proximity
        in time to onset of cancer of last pregnancy

        research also indicates
        a correlation between having six or more pregnancies and a risk of coronary
        and cardiovascular disease

        Less common (but
        serious) complications:

        peripartum cardiomyopathy

        cardiopulmonary
        arrest

        magnesium toxicity

        severe hypoxemia/acidosis

        massive embolism

        increased intracranial
        pressure, brainstem infarction

        molar pregnancy,
        gestational trophoblastic disease
        (like a pregnancy-induced
        cancer)

        malignant arrhythmia

        circulatory collapse

        placental abruption

        obstetric fistula

        More
        permanent side effects:

        future infertility

        permanent disability

        death.

      • fiona64

        Have the baby and put it up for adoption.

        So, a woman should risk her life and health on the off-chance that her child would be adopted?

        What about the 100K+ children currently available for adoption in the US alone (most of whom will age out of the foster care system without having a permanent home)? Are those children not worthy? And why should their number be increased?

  • infarmol

    Why is my bodily autonomy not “time-honored” enough to protect from threats and intimidation? I want an answer!

  • Caitlin Quinn

    Does this mean that the Supreme Court is going to strike down their own buffer law now too? Because last time I checked there was a considerable buffer zone around the Court to protect the Justices and lawyers.

    • lady_black

      Well, I think they just DID strike it down.

      • colleen2

        Exactly. I see no reason why we can’t ‘gently sidewalk counsel’ at political conventions too. After all, the buffer zone is about 1/2 mile there and the ‘free speech zones’ are cages.

    • Lisa Kazmier

      Protesters ought to test this — why do they get one?

  • red_zone

    Free speech does not equate to freedom to harass others, which is what those buffer zones did.

    If someone is badly hurt-or heaven forbid, killed- due to the absence of these buffer zones, the SCOTUS will look like fools for allowing it to happen.

    • lady_black

      I’m hoping some women stand their ground.

  • Lisa Kazmier

    I think the SC’s own buffer zone ought to be challenged — physically and in court.

  • http://crissa.twu.net/ Crissa

    35-feet is like the tiniest buffer ever.

    Why is it that the Supremes never hear on ‘free speech zones’ and just last year, upheld a trespass arrest and exclusion for a military base that spanned a US highway (the second largest of only a handful of ways to get from northern to southern California)

  • goatini

    What I want to know is where the hell Bu$hCo lickspittle Roberts, participant in and beneficiary of illegal human trafficking for profit*, gets the gall to state that vicious forced-birther stalking, harassment and intimidation of innocent patients is “consensual”.

    * illegal adoption of Irish children that were secretly funneled to South America, via the billion-dollar global human trafficking adoption syndicate, to facilitate their illegal sale and transport to Roberts.

  • goatini

    Even MORE true today than it was 42 years ago….

    http://youtu.be/OA8N0xy3hjE

    • lady_black

      The world lost a bright light that day in Manhattan.

  • Unicorn Farm

    This was a very weird, and I think deeply misguided and dishonest, analytically weak decision. Each section of the opinion- majority, and two occurrences have substantial flaws (Alito, I’m looking at you. WTF). It’s infuriating, and a lot of the pieces I’m reading about it, including even on the NYT, are warping the issues in this case in odd ways. Really disappointed. I may write out something longer this weekend to fully convey my disgust, in case anyone wants another lawyer’s perspective.

    • purrtriarchy

      That will be awesome.

      I am still using your tort law essay. A moron on personhood USA won’t shut up about “reasonable foreseeable consequences” and bodily compensation. Yet, he ONLY applies this rule to women, because “nature”. Men are exempt, as is everyone else because forced bodily compensation through technogy is ” not a foreseeable consequence”.

      What a misogynist. I showed him you essay and his reply “that lawyer is wrong and does not understand the law”

      Lulz

      • Unicorn Farm

        I’m so glad! Gah, I wish I had the fortitude/patience to rebut all the morons, but alas. I’m glad you do. That misogynistic ass is welcome to show me how I’m wrong…. but we all know he can’t. }:)

        • purrtriarchy

          Yeah. I told him to show how you are wrong, and he basically repeated the appeal to nature argument listed above

      • Unicorn Farm

        Quick response- apparently Richard Posner (7th circuit judge) wrote an article for (or at least it appeared in) Slate? (lol) that addressed this opinion. He said pretty much exactly what I think: On the one hand, the court fetishizes what these “counselors” are doing, describing it as contributing to the market place of ideas in a traditional public forum-thus elevating its value as protected speech. All the while the justices are talking out of the other side of their mouths and calling the speech “close, personal, caring consensual conversations” (which we know they are anything but), and thus taking the focus off their harassing nature. That way, the public safety/privacy rationales are significantly downplayed and the least restrictive means test is harder for the state to pass.

        Posner says: ” The issue is the privacy, anxiety, and embarrassment of the abortion clinic’s patients—interests that outweigh, in my judgment anyway, the negligible contribution that abortion protesters make to the marketplace of ideas and opinions.”

        Gah, so many problems with this opinion.

  • purrtriarchy
  • fiona64

    Well, as long as you call it “wanting to have a peaceful conversation,” clearly it’s all good.

  • almond_bubble_tea

    A humorous take on the case can be found here:

    http://www.opednews.com/articles/Mother-Mary-by-Kathy-Malloy-Abortion_Equal_Prayer_Pregnancy-140627-451.html

    “Who are they kidding? You can bet the Quiet Ones like Mrs. McCullen
    will be joined by the shouters and spitters and sign-flayers, but this
    time, the more zealous followers of Christ will be able to shout and
    scream and spit right in her face.”