Supreme Court Unanimously Rules Pro-Lifers Have Free Speech at Abortion Clinics

by Steven Ertelt | Washington, DC | LifeNews.com | 6/26/14 10:35 AM

In a unanimous decision today, the Supreme Court struck down a Massachusetts buffer zone law prohibiting pro-life free speech outside abortion clinics. The decision is a huge victory for pro-life sidewalk counselors who provide women with abortion alternatives.  The decision strikes down a Massachusetts law that created a 35-foot “buffer zone” restricting pro-life advocates from speaking with people entering abortion facilities.

Saying the abortion buffer zone is “inconsistent with the First Amendment,” the Supreme Court ruled that that the buffer zone violated the First Amendment because it “restricts access to ‘public way[s]’ and ‘sidewalk[s],’ places that have traditionally been open for speech activities.”

Read Justica Scalia’s decision here.

Mark Rienzi, professor of constitutional law at Catholic University of America’s Columbus School of Law and lead counsel in McCullen v. Coakley, told LifeNews, “Americans have the freedom to talk to whomever they please on public sidewalks. That includes peaceful pro-lifers like Eleanor McCullen, who just wants to offer information and help to women who would like it. The Supreme Court has affirmed a critical freedom that has been an essential part of American life since the nation’s founding.”

Kristan Hawkins, the president of Students for Life of America, told LifeNews:

“Today’s Supreme Court ruling in McCullen v. Coakley is wonderful news for all Americans because it upholds our crucial First Amendment rights of free speech but perhaps no more important than for women considering abortion because it frees sidewalk counselors at abortion facilities to be able to offer compassionate and caring alternatives.

“While the ruling is great news for the free speech of anti-abortion advocates, this isn’t about us. This is about giving women the opportunity to be informed of all of their options and isn’t that what the pro-abortion movement is all about? If Planned Parenthood and their allies truly favored choice and not their pocketbooks, they would be elated at this decision as well. Because if abortion is right and harms no one, then why not give the woman a chance at choosing life by presenting her options she may not even know about? Sidewalk counselors can’t stop women from having abortions, but they can offer information, resources, and just a listening ear  to those young women who feel desperate and alone.

“Because of this ruling striking down the buffer zone and upholding our constitutional rights, pro-life students across the nation will continue to be that compassionate lifeline for women in their most desperate hour, helping her to choose life for both her and her child.”

Americans United for Life legal counsel Bill Saunders previously wrote at LifeNews about the scope and magnitude of the case:

For years, the government in Massachusetts has been treating public sidewalks as private property of the abortion clinic, with criminal penalties for anyone that offers life-affirming alternatives.  But among the decisions to be issued by the U.S. Supreme Court by the end of June is a case challenging that restrictive Massachusetts law, McCullen v. Coakley. Hopefully, the Court will go further  and reverse a 2000 decision, Hill v. Colorado, which has been the basis of restrictions on pro-life free speech ever since.

In 2007, Massachusetts enacted a law that prohibits anyone to “enter or remain on a public way or sidewalk adjacent” to a stand-alone abortion facility, but it does not equally apply to all persons. The “no entry zone” is actually a “no pro-life speech” zone, as the Massachusetts government explicitly exempts employees or agents of the abortion facilityacting within their scope of employment.

Americans United for Life has been actively involved opposing this anti-American, anti-speech law, twice filing an amicus brief on behalf of 40 Days for Life. In 2009, we filed an amicus brief urging the U.S. Supreme Court to hear this case (on petition for cert). This past fall, we filed again, urging the Court to overturn the law.

The AUL brief explains how the Massachusetts law violates the First Amendment freedom of speech rights of 40 Days for Life by establishing a no pro-life speech zone, where no alternatives to abortion may be offered.  Contrary to the First Amendment and Supreme Court precedent, it forces pro-life speakers to either shout (from 35 feet away) or be silent, effectively foreclosing speech by those who engage in personal, direct, peaceful communication.

An abortion clinic employee, under the law, is allowed to approach women on the public sidewalk and say anything. However, our client, 40 Days for Life, cannot on that same public sidewalk offer, “I can help you” or even stand and pray without facing criminal penalties.

Even if a woman consents to listen or wants to hear what 40 Days has to say on that public sidewalk, that communication is not allowed by the draconian Massachusetts law.

Such blatant viewpoint discrimination should be held unconstitutional, even under the standards of the Supreme Court’s 2000 decision, Hill v. Colorado. Important to the Court’s finding in  Hill that the “no approach” Colorado statute was “viewpoint neutral” was that it applied to “all” speakers: “That is the level of neutrality that the Constitution demands.”  The Massachusetts statute clearly does not meet that test.

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But the Court in McCullen has the opportunity to do more than merely correctly apply Hill; it has the opportunity to correct the strained reasoning of the majority in Hill   that upheld the Colorado statute.

In Hill, Justice Kennedy poignantly opened his dissent, writing that “[t]he Court’s holding contradicts more than a half century of well-established First Amendment principles. For the first time, the Court approves a law which bars a private citizen from passing a message, in a peaceful manner and on a profound moral issue, to a fellow citizen on a public sidewalk.” He continued, “If from this time forward the Court repeats its grave errors of analysis, we shall have no longer the proud tradition of free and open discourse in a public forum.”

It is time to reverse Hill.  Let us hope the Supreme Court will do so, thereby restoring the free speech rights of pro-life Americans not only in Massachusetts but throughout the land.

===========================================================================================================

1

(Slip Opinion)

OCTOBER TERM, 2013

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See

United States

v.

Detroit Timber & Lumber Co.,

200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

M

C

CULLEN

ET AL

.

v

. COAKLEY, ATTORNEY GENERAL

OF MASSACHUSETTS,

ET AL

.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FIRST CIRCUIT

No. 12–1168. Argued January 15, 2014—Decided June 26, 2014

In 2007, Massachusetts amended its Reproductive Health Care Facili­

ties Act, which had been enacted

in 2000 to address clashes between

abortion opponents and advocates of abortion rights outside clinics

where abortions were performed. The amended version of the Act

makes it a crime to knowingly stan

d on a “public way or sidewalk”

within 35 feet of an en

trance or driveway to

any “reproductive health

care facility,” defined as “a place,

other than within or upon the

grounds of a hospital, where abortions are offered or performed.”

Mass. Gen. Laws, ch. 266, §§120E½(a), (b). The Act exempts from

this prohibition four classes of in

dividuals, including “employees or

agents of such facility acting within

the scope of their employment.”

§120E½(b)(2). Another provision

of the Act proscribes the knowing

obstruction of access to an abortion clinic. §120E½(e).

McCullen and the other petitioner

s are individuals who attempt to

engage women approaching Massachus

etts abortion clinics in “side­

walk counseling,” which involves o

ffering information about alterna­

tives to abortion and help pursuing

those options.

They claim that

the 35-foot buffer zones have displaced them from their previous po­

sitions outside the clinics, cons

iderably hampering their counseling

efforts. Their attempts to comm

unicate with patients are further

thwarted, they claim, by clinic “escorts,” who accompany arriving pa­

tients through the buffer zones

to the clinic entrances.

Petitioners sued Attorney

General Coakley and other Common­

wealth officials, seeking to enjo

in the Act’s enforcement on the

ground that it violates the Firs

t and Fourteenth Amendments, both

on its face and as applied to them

. The District Court denied both

challenges, and the First Circuit affirmed. With regard to petition­

2

McCULLEN

v.

COAKLEY

Syllabus

ers’ facial challenge, the First Circuit held that the Act was a reason­

able “time, place, and manner” regula

tion under the test set forth in

Ward

v.

Rock Against Racism

, 491 U. S. 781.

Held

: The Massachusetts Act violates the First Amendment. Pp. 8–30.

(a)

By its very terms, the Act restricts access to “public way[s]” and

“sidewalk[s],” places that have tr

aditionally been open for speech ac­

tivities and that the Court has acco

rdingly labeled “traditional public

fora,”

Pleasant Grove City

v.

Summum

, 555 U. S. 460, 469. The gov­

ernment’s ability to regulate speech in such locations is “very lim­

ited.”

United States

v.

Grace

, 461 U. S. 171,

177. “[E]ven in a public

forum,” however, “the government may impose reasonable re­

strictions on the time, place, or

manner of protected speech, provided

the restrictions ‘are justified with

out reference to the content of the

regulated speech, that they are na

rrowly tailored to serve a signifi­

cant governmental interest, and th

at they leave open ample alterna­

tive channels for communication of the information,’ ”

Ward, supra,

at 791. Pp. 8–10.

(b)

Because the Act is neither co

ntent nor viewpoint based, it need

not be analyzed under strict scrutiny. Pp. 10–18.

(1)

The Act is not content based

simply because it establishes

buffer zones only at abortion clinics,

as opposed to other kinds of fa­

cilities

.

First, the Act does not draw content-based distinctions on its

face

.

Whether petitioners violate th

e Act “depends” not “on what

they say,”

Holder

v.

Humanitarian Law Project

, 561 U. S. 1, 27, but

on where they say it. Second, even

if a facially neutral law dispropor­

tionately affects speech on certain

topics, it remains content neutral

so long as it is “

‘justified without reference to the content of the regu­

lated speech.’

”

Renton

v.

Playtime Theatres, Inc.

, 475 U. S. 41, 48.

The Act’s purposes include protecting

public safety, patient access to

healthcare, and unobstructed use of

public sidewalks and streets.

The Court has previously deemed al

l these concerns to be content

neutral. See

Boos

v.

Barry

, 485 U. S. 312, 321. An intent to single

out for regulation speech about abortion cannot be inferred from the

Act’s limited scope. “States adopt laws to address the problems that

confront them.”

Burson

v.

Freeman

, 504 U. S. 191, 207. There was a

record of crowding, obstruction, and even violence outside Massachu­

setts abortion clinics but not at ot

her kinds of facilities in the Com­

monwealth. Pp. 11–15.

(2)

The Act’s exemption for clin

ic employees and agents acting

within the scope of their employment

does not appear to be an at­

tempt to favor one viewpoint about abortion over the other.

City of

Ladue

v.

Gilleo

, 512 U. S. 43, 51, distinguished. Given that some

kind of exemption was necessary to allow individuals who work at

the clinics to enter or remain with

in the buffer zones, the “scope of