SCOTUS Overturning Buffer Zone Law NOT Reason for Celebration


In 2000, the Massachusetts legislature enacted the Massachusetts Reproductive Health Care Facilities Act, Mass. Gen. Laws, ch. 266, §120E1/2. Section 120E1/2 states:

“Section 120E1/2. (a) For the purposes of this section, “reproductive health care facility” means a place, other than within or upon the grounds of a hospital, where abortions are offered or performed.”

“(b) No person shall knowingly enter or remain on a public way or sidewalk adjacent to a reproductive health care facility within a radius of 35 feet of any portion of an entrance, exit or driveway of a reproductive health care facility or within the area within a rectangle created by extending the outside boundaries of any entrance, exit or driveway of a reproductive health care facility in straight lines to the point where such lines intersect the sideline of the street in front of such entrance, exit or driveway.”

“(c) The provisions of subsection (b) shall only take effect during a facility’s business hours and if the area contained within the radius and rectangle described in said subsection (b) is clearly marked and posted.”

“(d) Whoever knowingly violates this section shall be punished, for the first offense, by a fine of not more than $500 or not more than three months in a jail or house of correction, or by both such fine and imprisonment, and for each subsequent offense, by a fine of not less than $500 and not more than $5,000 or not more than two and one-half years in a jail or house of correction, or both such fine and imprisonment. A person who knowingly violates this section may be arrested without a warrant by a sheriff, deputy sheriff or police officer if that sheriff, deputy sheriff, or police officer observes that person violating this section.”

“(e) Any person who knowingly obstructs, detains, hinders, impedes or blocks another person’s entry to or exit from a reproductive health care facility shall be punished, for the first offense, by a fine of not more than $500 or not more than three months in a jail or house of correction, or by both such fine and imprisonment, and for each subsequent offense, by a fine of not less than $500 nor more than $5,000 or not more than two and one-half years in a jail or house of correction, or by both such fine and imprisonment. A person who knowingly violates this provision may be arrested without a warrant by a sheriff, deputy sheriff or police officer.”

A small group of pro-life advocates filed a lawsuit against Martha Coakley, Massachusetts Attorney General over the constitutionality of the state’s buffer zone law. The lawsuit, McCullen vs. Coakley was first heard in US District Court D, in Massachusetts in 2008 before District Judge Joseph Tauro who ruled that the buffer zone laws were not unconstitutional. In his decision, Tauro wrote:

“Plaintiffs challenge the facial constitutionality of a recently revised Massachusetts statute, Mass. Gen. Laws ch. 266, § 120E 1/2 (‘Act’), which establishes a 35foot fixed buffer zone around driveways and entrances of reproductive health care facilities (‘RHCFs’).[1] Following a Bench Trial held on May 28, 2008, this court finds that the Act survives First Amendment, Equal Protection and Due Process challenges…”

“For the foregoing reasons, the Act survives under all three facial challenge standards. Because the Act passes constitutional muster under the First Amendment, the Equal Protection Clause and the Due Process Clause, Plaintiffs have fallen far short of establishing that ‘no set of circumstances exists under which the Act would be valid.’ Furthermore, the Act has a ‘plainly legitimate sweep.’ Lastly, Plaintiffs have failed to establish that the Act is impermissibly overbroad.”

Appeals were filed and eventually the case went to the United State Supreme Court on in December 2013. Arguments in the case were heard before the high court on January 15, 2014. This past Thursday, to the great surprise of many, the Supreme Court rendered a unanimous decision declaring the Massachusetts buffer zone law to be unconstitutional and a violation of the First Amendment.

Writing the unanimous decision, Chief Justice John Roberts wrote:

“By its very terms, the Massachusetts Act regulates access to ‘public way[s]’ and ‘sidewalk[s].’ Mass. Gen. Laws, ch. 266, §120E½(b) (Supp. 2007). Such areas occupy a ‘special position in terms of First Amendment protection’ because of their historic role as sites for discussion and debate. United States v. Grace, 461 U.S. 171 , 180 (1983). These places-which we have labeled ‘traditional public for a’-‘ ‘have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’ ’ Pleasant Grove City v. Summum, 555 U.S. 460 , 469 (2009) (quoting Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37 , 45 (1983)).”

“It is no accident that public streets and sidewalks have developed as venues for the exchange of ideas. Even today, they remain one of the few places where a speaker can be confident that he is not simply preaching to the choir. With respect to other means of communication, an individual confronted with an uncomfortable message can always turn the page, change the channel, or leave the Web site. Not so on public streets and sidewalks. There, a listener often encounters speech he might otherwise tune out. In light of the First Amendment’s purpose ‘to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail,’ FCC v. League of Women Voters of Cal., 468 U.S. 364 , 377 (1984) (internal quotation marks omitted), this aspect of traditional public fora is a virtue, not a vice.”

“In short, traditional public fora are areas that have historically been open to the public for speech activities. Thus, even though the Act says nothing about speech on its face, there is no doubt-and respondents do not dispute-that it restricts access to traditional public fora and is therefore subject to First Amendment scrutiny. See Brief for Respondents 26 (although ‘[b]y its terms, the Act regulates only conduct,’ it ‘incidentally regulates the place and time of protected speech’).”

“Consistent with the traditionally open character of public streets and sidewalks, we have held that the government’s ability to restrict speech in such locations is ‘very limited.’ Grace, supra, at 177 . In particular, the guiding First Amendment principle that the ‘government has no power to restrict expression because of its message, its ideas, its subject matter, or its content’ applies with full force in a traditional public forum. Police Dept. of Chicago v. Mosley, 408 U.S. 92 , 95 (1972). As a general rule, in such a forum the government may not ‘selectively . . . shield the public from some kinds of speech on the ground that they are more offensive than others.’ Erznoznik v. Jacksonville, 422 U.S. 205 , 209 (1975)…”

“At each of the three Planned Parenthood clinics where petitioners attempt to counsel patients, the zones carve out a significant portion of the adjacent public sidewalks, pushing petitioners well back from the clinics’ entrances and driveways. The zones thereby compromise petitioners’ ability to initiate the close, personal conversations that they view as essential to ‘sidewalk counseling.’”

While the decision of the Supreme Court appears to be a huge victory of pro-lifers, we need to tread with caution. The court noted that they are not opposed to laws protecting abortion clinics, but the laws must be tailored to the specifics of the clinics in question. The Massachusetts law was ruled to be too broad and it was for that reason they ruled against it. The court was NOT protecting the First Amendment rights of pro-lifers. Instead, they only prompted cities and states to be more careful when they pass anti-prolife laws.

The repercussions of the ruling will most likely result in the Massachusetts legislature revisiting the law and pass a more restrictive law to protect the clinics involved. This will result in the re-establishment of the state’s buffer zone law to prevent pro-lifers from trying to prevent women from murdering their unborn children. More children will be deprived of every seeing the light of day or knowing what a single breath of air feels like.

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