JURIST Guest Columnist Stephanie Toti of The Center for Reproductive Rights discuss the challenge to Massachusetts buffer zone laws in McCullen v. Coakley…

The US Supreme Court recently heard oral argument in McCullen v. Coakley, involving a Massachusetts statute that creates 35 foot buffer zones around abortion clinic entrances and driveways. Enacted in response to a long and well documented history of intimidation, obstruction, and violence outside abortion clinics, the law seeks to ensure the safe passage of women into such facilities and to maintain safety and order on the public streets surrounding them.

In the past, the Supreme Court has upheld similar measures imposed by court order as well as by statute. Most recently, in Hill v. Colorado, the court upheld a state statute making it unlawful for anyone, within 100 feet of the entrance of a healthcare facility, to approach within eight feet of another person without consent for the purpose of passing a leaflet or handbill, displaying a sign, or engaging in oral protest, education, or counseling.

The decision in Hill generated controversy among First Amendment scholars, some of whom thought that the court improperly classified the law as content neutral, even though, on its face, it distinguishes among speech based on its content. In making the “content neutrality” determination, the court relied on the fact that the statute had a neutral justification (i.e., one unrelated to the expressive content of speech)—namely, to ensure safe passage of those seeking to enter abortion clinics and to maintain safety and order on public streets—despite its differential treatment of speech amounting to protest, education, or advocacy. Although the court’s decision in Hill is less than fifteen years old and was adopted by a six member majority, one of the questions presented in McCullen is whether Hill should be overruled. Many commentators and Supreme Court watchers believe the court will answer that question in the affirmative given the criticism aimed at Hill and the changes in the composition of the court since that case was decided in 2000.

I remain hopeful, however, that the Supreme Court will uphold the Massachusetts buffer zone law—or, at the very least, render a decision on narrow grounds that would not foreclose the enactment of similar laws. There was much discussion at oral argument about whether the exceptions in the Massachusetts law were overly broad—they could easily be amended should the court strike the statute on that basis. There are several reasons why the court may (and should) affirm the general principle that a state may restrict people from occupying the areas immediately.

First, the Massachusetts buffer zone law is distinguishable from the statute upheld in Hill in ways that make its constitutionality more evident. For example, the Massachusetts statute is content neutral on its face in addition to having a neutral justification; it merely prohibits physical presence within a buffer zone. It makes no reference to protected expression of any kind. This makes clear that the statute should be treated as content neutral. It is also makes clear that McCullen is not a good vehicle for reconsidering the more controversial aspects of Hill; it provides no occasion to revisit the debate about whether a neutral justification, on its own, is sufficient to support a determination of content neutrality.

In addition, because the Massachusetts buffer zone law does not regulate speech directly, it is best understood as a regulation of conduct, rather than as a regulation of the time, place or manner in which speech occurs. Any burdens on speech that result from the law are incidental to its regulation of physical proximity to a clinic entrance or driveway.

Under the rubric first set forth in United States v. O’Brien, upholding the conviction of a Vietnam-war protester for publicly burning his draft card in violation of a statutory prohibition on the destruction of such cards, a regulation of conduct that imposes incidental burdens on speech satisfies the First Amendment if it furthers an important governmental interest unrelated to the suppression of expression and the burdens on speech that result from it are no greater than necessary to further that interest. The Roberts’ court, in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., sustained the Solomon Amendment under this rubric, holding that the statutory provision requiring universities to provide military recruiters equal access to their campuses and students or forfeit their federal funding did not directly regulate the speech of the plaintiff law schools even though, as a practical matter, it required them to advertise military recruiters’ presence on their campuses.

The Massachusetts buffer zone law easily passes the O’Brien test. As explained above, it has a neutral justification related to important governmental interests. And the record in the case, which included trial testimony from law enforcement officers, shows that the creation of 35 foot buffer zones has proven to be a highly effective means of maintaining safety and order outside of abortion clinics, succeeding where other measures adopted by the Commonwealth had failed.

Second, buffer zones are not unique to the abortion clinic context. Numerous federal, state, and local laws limit people’s ability to congregate in certain public spaces when doing so would pose a security threat. You cannot congregate on the White House grounds or the steps of the Supreme Court, for example, even if you wish to engage in peaceful protest or quietly converse with the people entering or leaving those buildings. Massachusetts and its amici provided examples of buffer zone laws protecting everything from houses of worship to foreign embassies to hospitals to political conventions. Although the plaintiffs in McCullen characterize buffer zones as a form of censorship, they do not actually prevent anyone from speaking. Instead, they merely require everyone to take a few steps back, reducing congestion at building entrances, minimizing opportunities for aggression, and making it easier for law enforcement officers to keep the peace.

Accordingly, their relatively common occurrence has posed little danger to our First Amendment freedoms. The Supreme Court’s most well known case about buffer zones outside the abortion context is, perhaps, Burson v. Freeman. There, the court upheld a buffer zone law that prohibited electioneering within 100 feet of polling locations on election days. That law (and dozens like it across the country) had been enacted to prevent intimidation and harassment of prospective voters by campaign workers, which had been a big problem historically. The court treated that buffer zone law as content based because it only applied to the solicitation of votes and display of campaign materials, but nevertheless upheld it under strict scrutiny, concluding that the government had a compelling interest in ensuring that individuals are able to exercise their right to vote and that the 100 foot buffer zone requirement was narrowly tailored to serve that interest.

The parallels between Burson and McCullen are plain. Both cases concern the creation of buffer zones on certain public sidewalks to protect individuals seeking to exercise their fundamental rights from interference by third parties, as well as to maintain safety and order in a relatively small space that would otherwise be crowded with opposing factions whose passions are running high. Moreover, in both cases, the buffer zone laws were enacted in response to an extensive historical record of harms.

If a content based, 100 foot buffer zone requirement satisfies First Amendment scrutiny, then surely, a content neutral, 35 foot buffer zone requirement does so, as well. Conversely, if the court strikes down the abortion clinic buffer zone law, it would be putting at risk buffer zones that protect polling locations as well as houses of worship, courthouses, and the like, taking an effective tool for keeping the peace out of the hands of law enforcement officers.

Third and finally, laws securing women’s safe passage into abortion clinics are part of a long tradition of government action aimed at safeguarding the exercise of fundamental rights from interference by third parties. During Reconstruction, for example, Congress enacted the Civil Rights Act of 1871 in response to an organized campaign of violence and intimidation designed to prevent African Americans from exercising the rights granted to them by the Thirteenth, Fourteenth, and Fifteenth Amendments. Similarly, in the wake of the Supreme Court’s decision in Brown v. Board of Education, the federal government took various steps to secure safe passage for African American children into newly integrated schools. The Voting Rights Act of 1965 and various state buffer zone statutes of the kind upheld in Burson were enacted to prevent intimidation and obstruction of those seeking to exercise their right to vote. And a wave of recent amendments to state and local public accommodation laws afford members of the LGBT community protection from those who would seek to discriminate against them on the basis of their sexual orientation or gender identity.

The Supreme Court has long held that such measures are presumptively valid under the First Amendment as long as they target the conduct of rights opponents and not their message. In other words, while the government may not prevent rights opponents from denouncing the exercise of fundamental rights, it may prevent them from impeding the exercise of those rights. The Massachusetts buffer zone law abides this distinction. It permits opponents of abortion rights to convey their message through any means they prefer, whether loud protest or quite conversation, as long as they do so at a safe distance from clinic entrances and driveways. And that distance is relatively short—less than twelve yards.

In sum, the incidental burdens on speech imposed by the Massachusetts buffer zone law are justified by the protections the law affords to those seeking to enter abortion clinics as well as its demonstrated effectiveness in keeping the peace outside such facilities. I hope that, following the Supreme Court’s decision, buffer zones will continue to be a viable tool for law enforcement officers in Massachusetts and elsewhere.

Stephanie Toti is a Senior Staff Attorney at the Center for Reproductive Rights and an Adjunct Professor at Fordham University School of Law. In McCullen v. Coakley, she filed an amicus brief in the Supreme Court on behalf of a coalition of civil rights organizations, arguing that Massachusetts’ buffer zone law satisfied the First Amendment.

Suggested citation: Stephanie Toti, Examining the Constitutionality of Abortion Clinic Buffer Zones, JURIST – Hotline, Feb. 10, 2014, http://jurist.org/hotline/2014/02/stephanie-toti-buffer-zones.php.