When John Roberts looks into a mirror, he sees the reflection of a chief justice with a solid record of supporting freedom of speech. If he dwells on the subject, he may even congratulate himself for his decision three years ago supporting the rights of hate-filled religious fundamentalists to spew anti-gay venom at the funeral of a fallen military service member.
Roberts may well have been recalling that decision as he sat during the hour-long arguments last week in the court’s latest free-speech case. In the new case, McCullen v. Coakley, self-styled anti-abortion “counselors” are challenging a Massachusetts law establishing a 35-foot “buffer zone” around abortion clinics.
The plaintiffs say the 2007 law prevents them from engaging in constitutionally protected speech in a public setting to try to dissuade women from having an abortion. The state counters that the law is needed to protect abortion clinics, their employees, and their patients from congestion, disruption, harassment, intimidation, and even potential violence.
Roberts, normally an active questioner from the bench, was uncustomarily silent for the entire hour of the oral argument in the Massachusetts case [Jan. 19]. But the consensus among the Supreme Court press corps and other Court watchers is that Roberts is likely to join his four conservative colleagues in striking down the Massachusetts law as going too far in limiting the free-speech rights of abortion opponents.
Those predictions may prove to be right. Eleanor McCullen, the earnest but soft-spoken 77-year-old grandmother chosen as the first named plaintiff, is an appealing candidate for First Amendment protections. And the state’s arguments for a buffer zone larger than the Supreme Court had allowed in its most recent similar case were somewhat shaky.
Roberts may have been keeping his thoughts to himself, however, to steer the court toward a compromise position that protects free-speech rights on one side and women’s rights to access to abortion on the other. That would be a sensible resolution of the case consistent with the court’s precedents that in this and other contexts recognize the need to draw lines that free speech may not cross.
In three earlier cases, the court has upheld buffer zones in abortion-clinic cases despite vigorous dissents from three conservatives: Scalia, Kennedy, and Thomas. In Madsen v. Women’s Health Center (1994), the court upheld a lower court injunction establishing a 36-foot buffer zone at an abortion clinic in Melbourne, Florida. Three years later, the court in Schenck v. Pro-Choice Network of Western New York (1997) upheld a lower court’s injunction creating 15-foot buffer zones around abortion clinics in Buffalo and Rochester. But the court in that case threw out part of the injunction imposing an eight-foot “floating buffer zone” protecting clinic employees and patients as they entered or left the facilities.
In the most recent case, Hill v. Colorado (2000), the court shifted its stance slightly by upholding a Colorado law that established an eight-foot buffer zone for abortion clinics across the board. Anti-abortion protesters were required to stay eight feet away from clinic employees or patients unless they agreed to listen. For the majority, Stevens reasoned that a generally applicable state law avoided the risk of uneven enforcement of buffer zones through court injunctions.
Chief Justice Rehnquist wrote the two earlier decisions and joined in the third; O’Connor was also in the majority in all three. But their successors Roberts and Alito came to the court with records of having opposed abortion rights before taking the bench.
Massachusetts tried the floating bubble approach upheld in Hill, but police said it was problematic to enforce. So the state legislature responded in 2007 by mandating the fixed, 35-foot buffer zone. In oral argument, the justices and the lawyers proved to have a poor sense of distance: Kagan wrongly suggested 35 feet was about the length of the courtroom (56 feet actually), while the government’s lawyer equated it with the distance of basketball’s three-point arc (23 feet, 9 inches, in the NBA).
Despite the confusion, Scalia and other conservatives were correct in stressing that the 35-foot buffer prevents the abortion opponents from any interaction with patients once inside the zone. By contrast, Michael Rienzi, the Catholic University law professor representing the plaintiffs, emphasized that the “floating bubble” or what he called the “no approach” requirement at least gives demonstrators a chance to converse if the patients agree.
For the state, assistant attorney general Jennifer Grace Miller said the 35-foot buffer zone was needed to prevent anti-abortion forces from blocking access to the clinics. But she embarrassingly said another rationale was to prevent shoving and shouting matches between abortion-rights advocates themselves and the anti-abortion forces.
The court’s precedents show, however, that speech-free zones are permissible in some circumstances. The court has upheld laws prohibiting electioneering within specified distances of polling places. The court itself is protected by a law that bars demonstrations on the plaza in front of the Supreme Court building. And in the military funeral case, Snyder v. Phelps (2011), Roberts suggested that laws creating buffer zones for such services might pass constitutional muster.
On the plaza after arguments, McCullen said it was “frustrating” for her to be prevented from trying to dissuade women from abortions. On the other side, however, are the unseen women already struggling with a painful decision who equally deserve effective protection of their constitutional rights.