The Supreme Court on Thursday unanimously struck down protest-free buffer zones around abortion clinics in Massachusetts as an unconstitutional infringement on free speech.
But Chief Justice John G. Roberts Jr.’s ruling was a narrow one, pointing out that other states and cities had found less-intrusive ways to both protect women entering clinics and accommodate the First Amendment rights of those opposed to abortion.
Massachusetts asserts “undeniably significant interests in maintaining public safety on [its] streets and sidewalks, as well as in preserving access to adjacent healthcare facilities,” Roberts 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.”
Significantly, only the court’s liberals joined Roberts’s opinion: Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. That is a rare combination at the court, Roberts’s majority opinion upholding the Affordable Care Act in 2012 the most notable example.
The court’s four conservatives agreed that the law violated the First Amendment but, writing separately from Roberts, said he was wrong in not simply finding that the law discriminated against those opposed to abortion.
“Today’s opinion carries forward this court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents,” Justice Antonin Scalia wrote in a concurring opinion joined by Justices Anthony M. Kennedy and Clarence Thomas. “There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.”
Justice Samuel A. Alito Jr. did not join Scalia’s biting opinion and wrote his own, agreeing that the law was unconstitutional because employs “blatant viewpoint discrimination.”
Roberts’s opinion did not mention a 2000 Supreme Court decision that said governments could enact some restrictions. It upheld a Colorado law that established 100-foot buffer zones outside all health-care facilities — not just abortion clinics — and prohibited approaching a person within an eight-foot bubble to protest or counsel.
That ruling brought forceful dissents at the time from Scalia, Kennedy and Thomas, who again Thursday called for it to be overruled, and was sharply criticized by First Amendment activists.
The latest case seemed to divide justices during oral arguments in January, and the outcome was hard to predict because Roberts, normally an active participant, did not ask a single question.
The challenge to the Massachusetts law was brought by activist Eleanor McCullen, 77, and others who say they use quiet conversation and offers of help to try to persuade women not to have an abortion.
Because of the law, they must stay behind painted lines on the sidewalk at a clinic in Boston and away from driveways that lead to other facilities. They say this hinders their chance for persuasive conversation — McCullen said she had persuaded about 80 women not to terminate their pregnancies since the 2007 law passed, far fewer than before.
But the state maintained that the buffer zones were the most effective way of dealing with decades of harassment and violence at abortion clinics, including shootings in the 1990s.
While McCullen’s group might be nonviolent, the state said there was no way of knowing who would show up at the clinics, and the law kept away those on both sides of the controversial issue.
The law bars everyone from entering or remaining in the zones. There are exceptions for people going in or out of the building, people using the sidewalk, law enforcement officials and clinic employees.
McCullen and her supporters said that last exception was one reason the law was unconstitutional, because it allowed speech from clinic employees but not from others. They also said it singled out abortion clinics as the only places where speech was restricted.
Roberts’s opinion, which Scalia mocked as “Something for Everyone,” found a middle ground.
Roberts said the law was viewpoint-neutral, because neither clinic employees nor activists were permitted to talk to women about abortion within the buffer zones. And he said Massachusetts had a legitimate interest in enacting restrictions only around abortion clinics, because that is where it had problems in the past.
To meet First Amendment standards, a law that restricts speech has to be narrowly drawn so as not to be more restrictive than necessary, Roberts said. The Massachusetts law failed that test, he said, because it did not consider “alternatives that leave the forum open for its time-honored purposes.”
The commonwealth is alone among states with such restrictions, he said, and just a handful of cities have similar ones. As a practical matter, Roberts said, the problems are only at the Boston clinic on Saturday mornings.
“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,” he wrote.
He said Massachusetts could “consider” a New York City ordinance that prohibits obstructing access to a clinic and following and harassing another person within 15 feet of an abortion clinic.
Scalia criticized Roberts for offering an example of legislation that the court has not reviewed.
Mark Rienzi, the Catholic University law professor who argued the case, said the decision meant that “the government cannot reserve its public sidewalks for Planned Parenthood, as if their message is the only one women should be allowed to hear.”
He also released a statement from McCullen: “I am delighted and thankful to God that the court has protected my right to engage in kind, hopeful discussions with women who feel they have nowhere else to turn.”
Massachusetts Attorney General Martha Coakley (D) said the state’s work “begins again.”
She said the state will look for a solution that meets the court’s requirements and protects “everyone from harassment, threats, and physical obstruction.”
While Roberts’s opinion did not make his conservative colleagues happy, it also was not well received by abortion rights supporters.
Cecile Richards, president of the Planned Parenthood Federation of America, said the ruling showed a “disregard for American women, who should be able to make carefully considered, private medical decisions without running a gauntlet of harassing and threatening protesters.”
The Massachusetts case is McCullen v. Coakley.