Are state “buffer zones” around abortion clinics unconstitutional?
January 22, 2014
By Jeremy Quattlebaum, Student Voices staff writer
Public safety vs. free speech. That is the issue at the heart of McCullen v. Coakley, which may decide if Massachusetts’ mandated 35-foot buffer zone around the entrances of abortion clinics violates anti-abortion protesters’ First Amendment right of free speech.
The U.S. Supreme Court heard oral arguments in the case earlier this month. The Massachusetts law says that individuals, with the exception of clinic staff or patients, must stay 35 feet from the entrance of the clinics. The law is intended to provide staff and patients unobstructed access to the clinics. It was a response to increased violence against abortion providers, including the killings of two abortion clinic workers outside a clinic in a Boston suburb in 1994.
Seventy-year-old Eleanor McCullen, who is the lead plaintiff and a member of the anti-abortion group Operation Rescue, says she doesn’t pose a threat to women who are entering the clinic. All she wants to do, she tells the women, is “just talk a minute before you rush in.” She tells them that there is another option “other than taking the child” and quietly tries to get them to change their minds.
Lawyers for McCullen argue that the buffer zones are on public space, which should be open to all types of opinions. Catholic University law professor Mark Rienzi, who represents the anti-abortion demonstrators, said, “Public sidewalks are places that people are supposed to be free to exchange information and exchange ideas."
Employees of the Planned Parenthood Clinic in Boston see the buffer zones as necessary for their safety and the safety of their patients, 90 percent of whom are receiving primary care, contraception, cancer screenings, or gynecological services. They say that even tighter safety measures are needed, describing the scene outside the clinic as often chaotic, with confrontations between abortion-rights supporters and protesters.
In 2000, the U.S. Supreme Court ruled that a “floating” 8-foot buffer zone in Colorado was constitutional. A “floating” buffer zone is like a protective bubble surrounding patients as they exit and enter the clinic.
This month, in McCullen v. Coakley, the justices seemed to have a different sense of what a 35-foot buffer zone looked like. Justice Elena Kagan, who indicated she thought the zone was too big, speculated that the court’s chambers were about 35 feet. The chamber measures 82 feet by 91 feet, according to the court’s website. Deputy Solicitor General Ian Gershengorn, arguing for the Obama administration on behalf of the state, said it was about the distance from the three-point line to the basket in the NBA, but that distance is 23 feet, 9 inches. Justice Sonia Sotomayor came close when she said that 35 feet was two car lengths. The average car is 16 feet long.
Faulty estimates aside, the argument about the size of the 35-foot zone was just one of the issues. Another argument is that the law is too broad, affecting peaceful protesters as well as violent ones.
Justice Antonin Scalia said the plaintiffs were not protesters, but women trying to have quiet conversations with the patients.
“These people don’t want to protest abortion,” Scalia said. “They want to talk to women who are about to get abortions and try to talk them out of it.”
Justice Ruth Bader Ginsburg made the point that the state doesn’t know “in advance who are the well-behaved people and who are the people who won’t behave well.”
Massachusetts officials and clinic employees say that since the law went into effect in 2007, the patients feel safer and it is easier to enter the clinic. Abortion-rights groups say violence is down around clinics in cities and states that have buffer zones.
Marty Walz, head of the Planned Parenthood League of Massachusetts, likened the buffer to the state’s 150-foot buffer zones around polling places. Individuals are barred from handing out campaign literature within that zone.
What do you think?
Do the 35-foot buffer zones violate anti-abortion advocates’ free speech rights? Or are they necessary to protect staff and patients? Does the size of the zone affect whether it’s constitutional? Join the discussion and let us know what you think!
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