The Supreme Court ruled unconstitutional a Massachusetts law creating buffer zones around abortion clinics stating that the law does not use the least restrictive means to achieve the State’s goal of preserving public safety. The ruling ultimately makes it easier for protestors to obstruct, intimidate, and interfere with individuals obtaining or providing reproductive health services.
In 2007, the state of Massachusetts amended its Reproductive Health Care Facilities Act and created a 35-foot buffer zone around health care facilities that provided abortion services. The amended version of the Act made it a crime to knowingly stand on a “public way or sidewalk” within 35 feet of any entrance or driveway to any reproductive healthcare facility during business hours. The statute only exempts four types of individuals including employees or agents of the facility acting in the scope of their employment.
The original law passed in 2000 was based on a Colorado statute approved by the Supreme Court of the United States and contained an 18-foot zone where no one could come within 6-feet of another person without their consent. However, the legislature amended the law when it reviewed evidence of this law being insufficient, ineffective and unenforceable. The amended version replaced the six-foot no-¬approach zones (within the 18¬-foot area) and made it a crime to knowingly stand on a public way or sidewalk within 35 feet of an entrance or driveway to any reproductive health care facility.
The Petitioners in this case, opponents of abortion, attempt to engage women as they attempt to seek services at the clinics in what they call “sidewalk counseling.” Petitioners brought a case against the amended law alleging it violated First Amendment right to free speech and Fourteenth Amendment Right to equal protection. The District Court denied both challenges, and the First Circuit affirmed stating the Act was a reasonable “time, place, and manner” regulation in compliance with the applicable test laid out in the case Ward v. Rock Against Racism.
The case then went to the Supreme Court of the United States.
The Court begins by examining the State’s right to regulate access to “public ways and sidewalks”. These areas are specially protected by the First Amendment right to free speech because of their historic role as sites for discussion and free speech. The government’s ability to regulate speech in such locations is “very limited” but it may impose reasonable restrictions on the time, place, or manner of protected speech as long as the restrictions are the following: (1) not based on the content of the speech, (2) narrowly tailored to serve a significant governmental interest, and (3) leave open ample alternative channels for communication of the information. The Court examines the statute’s compliance with each of these three provisions in turn.
First, the Court determines that the restriction contained in the statute is not based on the content of speech. Though Petitioners attempt to argue that the statute regulates speech based on its content because it is applicable only to the exterior of reproductive healthcare facilities, the Court disagrees. It states that the statute does not contain provisions specifically targeting speech pertaining to abortion, therefore is facially neutral. Furthermore, it clarifies that a facially neutral law does not become content based if it disproportionately affects speech on certain topics.
Second, the Court moves on to the second criteria and determines that the statute is not narrowly tailored, finding it limits more speech than is necessary to achieve the government’s goal. The purpose of the law is rooted in public safety on streets and sidewalks and in preserving access to adjacent reproductive healthcare facilities. However, the Court determines that statute also imposes serious burdens on petitioners’ speech, depriving them of their two primary methods of communicating with arriving patients: close, personal conversations and distribution of literature.
The Court states that because petitioners are not protestors, the fact that they are permitted to “protest” outside the buffer zones does not make up for their exclusion from the areas where they typically approach prospective clinic patients. The Court concludes that if all that women approaching the clinic can hear protests coming from beyond the buffer-zones, then the buffer zones have stifled petitioners’ message.
Third, the Court also finds that the buffer zones substantially burden more speech than necessary to achieve the State’s goal alleging that the previous act already prohibited deliberate obstruction of clinic entrances. The State argues that when it tried other approaches, they simply did not work but the Court disagrees claiming the State did not make a serious attempt to use less intrusive tools readily available to address the problem.
In his Concurring Opinion, Scalia states that the statute is indeed content-based claiming the majority opinion found it was not content-based and therefore did not review the case on the basis of strict scrutiny because it was an abortion case and so that it “can preserve the ability of jurisdictions across the country to restrict antiabortion speech without fear of rigorous constitutional review”.
In his Concurring Opinion, Alito agrees with the majority that the statute violated the First Amendment but also argues the statute discriminates on the basis of view-point. He argues it discriminates by making it a crime for a person to entering a buffer zone around an abortion clinic during business hours while allowing for employees and agents of the clinic to be there and express positive viewpoints so long as it is within the scope of their employment.
The Supreme Court holds that the Massachusetts law prevented individuals from engaging in the exact activities protected under the First Amendment. The Massachusetts Act violates the First Amendment because it fails to meet the test required as a statute that restricts access to public ways and sidewalks. The Court determines that though it meets the first requirement by not being based on the content of the speech, it fails to meet the second requirement of only limiting the speech necessary to achieve its goal of public safety.