History in the Making

Katie Short

When the state of Massachusetts came before the United States Supreme Court to defend its abortion clinic buffer zone law in McCullen v. Coakley, one would have expected it to rely heavily on the most recent Supreme Court decision in this area of the law, Hill v. Colorado, (2000). In Hill, the Court upheld a Colorado law prohibiting unconsented approaches within 8 feet of any person within 100 feet of medical facility entrances, for the purpose of leafleting, protest, education, or counseling. Although the statute applied to all medical facilities, it was widely understood to be targeted at anti-abortion speakers, and, indeed, many similar “bubble zone” laws enacted post-Hill apply only outside abortion clinics.

However, rather than attempting to align its law prohibiting “entering or remaining” within 35 feet of abortion clinic entrances and driveways with Hill’s endorsement of a governmental interest in protecting patients from “unwanted speech,” Massachusetts vigorously denied any similarity between the two cases and disclaimed any interest in shielding unwilling listeners.

The state also had little use for the lower court opinions upholding its law. In rejecting both facial and as-applied challenges to the law, the First Circuit gave a novel twist to the “secondary effects” doctrine, a doctrine used almost exclusively to uphold zoning restrictions on sexually-oriented businesses. The First Circuit held that “abortion protesters are particularly aggressive and patients particularly vulnerable” at abortion clinics, and that the 35-foot buffer zones were narrowly tailored to curb the “deleterious secondary effects of anti-abortion protests.” One would think the state would find this rationale ideal to justify its singling out of abortion clinics, but the state ignored it in its briefing and argument before the Supreme Court.

Neither of these strategies on the part of the state is difficult to understand when one considers the current makeup of the Supreme Court. Massachusetts would be far from certain of finding five votes to affirm Hill itself, much less an expansion of Hill to create zones where even consensual speech is banned. It is even less likely to find five votes to endorse the First Circuit’s “secondary effects” theory that a restriction on speech applicable only outside abortion clinics, because they are abortion clinics, is nonetheless content-neutral.

So, while ignoring the lower court opinion and running away from Hill, how did the state propose to win the votes of a majority of the justices?

Its strategy was to cast the case as a challenge to the validity, not of a restriction on speech at abortion clinics, but of a restriction on conduct at any category of locations where there was a “history” of problems. Massachusetts claimed that its “unique,” decades-long history of violence, blockades, intimidation, and even peaceful congregating around abortion clinic entrances had driven it to the expedient of creating the 35-foot buffer zones, excluding all members of the public not specifically exempted. Other methods of protecting access to clinics had been tried, but “none worked,” the state claimed.

The state’s argument is riddled with difficulties, both factual and legal.

First, the evidentiary basis for the finding of these supposedly longstanding and intractable problems was oral and written testimony in hearings before the Massachusetts legislature. Testimony supporting the law was unsworn, not subject to cross-examination, shot through with hearsay, frequently vague and lacking foundation, and primarily from indisputably biased witnesses. Yet time and again, the state pointed to individual statements from this testimony as solid proof of the problems that the statute was narrowly tailored to address.

Even more tenuous was the record that other laws were inadequate to remedy the alleged problems. The primary focus of the legislative hearings that led to the enactment of the buffer zone law in 2007 was the difficulty of enforcing the prior bubble zone law prohibiting unconsented approaches within six feet of a person for the purpose of speech or leafleting. In upholding the similar statute in Hill, the Supreme Court found that the law provided ample alternative channels of communication because leafleters could “stand on the sidewalk at entrances and (without physically blocking the entrance) peacefully hand [patients] leaflets as they pass by.” However, when sidewalk counselors in Massachusetts, barred from approaching patients, employed precisely this channel of communication, the state complained that the result was congestion around the clinic entrances, leading patients to “pass very close” to leafleters—just as the Supreme Court described.

The enforcement “problem” the state faced was not that pro-life counselors were breaking the law but that they weren’t breaking the law. Again and again, in briefs and in oral argument, the state contended that prosecuting troublemakers under existing laws would not address the problems allegedly caused by law-abiding picketers and counselors. According to Massachusetts, the clinic entrances were “perceived by patients to be blocked” by these peaceful speakers. Hence a new law was needed that would sweep them in as well, or, more accurately, would sweep them 35 feet away from the clinic entrances and driveways.

The state insisted that abortion clinics had not been singled out; a buffer zone was possible at any class of locations that had a similar “history” of problems. The sincerity of this assertion was undercut when Justice Alito asked if a similar restriction could be imposed at all labor picketing sites, and the attorney general responded that it was unlikely an equivalent history of disruptive labor picketing would be found.

And that is the crux of the problem: reliance on a supposedly factual history of problems to justify an otherwise unjustifiable restriction. There are already remedies in the law that take a fact-based approach: on-site police response and court-ordered injunctions. If a prosecutor or party can prove, through admissible evidence, that specific persons have damaged or threaten to damage some defined interest, a court may enter a judgment of conviction or sentence or issue an order restraining the responsible parties from causing further damage to that interest. Meanwhile, those who have not damaged such interests retain their rights.

The legislative process is an inappropriate and inadequate substitute for the adversarial fact-finding and specificity that precedes issuance of a criminal judgment or an injunction. Legislatures hold hearings on the subjects they are interested in hearing about, and frequently only on those subjects they have already decided to act on. The evidence gathered in such hearings is selective, and “findings” are made by those who have usually already made up their minds. Massachusetts claims that a 35-foot no-entry zone could have ended up anywhere where there was evidence of picketing problems, but would the Massachusetts legislature even have held hearings if, for example, the Catholic Church complained about disruptive picketing by homosexual activists?

Moreover, legislatures create laws that limit everyone, not just those who have wrongfully infringed on the rights or interests of another. Statutes and ordinances imposing restrictions on speech thus must be narrowly drawn as to all to whom they apply, i.e., every member of the general public. By contrast, a criminal sentence or injunctive restrictions need only be tailored to a single wrongdoer. Just because paparazzo Ron Gallela could be enjoined from coming with 50 feet of Jackie Onassis does not mean a law keeping the general public, or all photographers, 50 feet away from all former First Ladies would be narrowly tailored.

The concept that, as the Solicitor General summarized it, “history matters” in assessing whether a speech restrictive law is narrowly tailored has other ramifications. If it is only the “unique” history in Massachusetts that makes one-size-fits-all, 35-foot zones narrowly tailored to fit the diversely configured clinics in that state, then such a law would not be narrowly tailored in Connecticut or New York or California or New Jersey—that is, not until their legislatures hold hearings and discern that they, too, all have similarly unique histories of “perceived blocking” at abortion clinics.

As a practical matter, such a pretextual history would mostly likely not be necessary if the Supreme Court upheld the Massachusetts law. If a 35-foot buffer zone around abortion clinics were held to be narrowly tailored to serve significant governmental interests in Massachusetts, it would almost certainly be held to be narrowly tailored everywhere else in the country, because that’s how the time, place, and manner test for speech-restrictive laws works. The particular history of a jurisdiction has never been a decisive factor in the analysis.

Unfortunately, the Supreme Court itself is responsible for confusing the constitutional standards governing injunctions and generally applicable laws. Twenty years ago, in another case involving anti-abortion speech activities, Madsen v. Women’s Health Center, the Court held that an abortion clinic could be granted an injunction imposing a 36-foot speech-free zone on the basis of the same type of broadly worded governmental interests that frequently undergird generally applicable laws, e.g., ensuring public safety and order and promoting the free flow of pedestrian traffic. Thus, the Supreme Court licensed a private party to assert governmental interests to justify injunctive relief restricting the free speech rights of its ideological opponents.

The Supreme Court is not likely to use the McCullen case as a vehicle to untangle two decades’ worth of jumbled First Amendment jurisprudence. However, it could make a beginning by enunciating the crucial importance of distinguishing between fact-based, individualized responses (police action, injunctions) that have impacts on First Amendment activity, on the one hand, and general legislative approaches that bind all persons willy-nilly. The former, individualized approach tailors the remedy to the wrong; the latter, across-the-board approach disrespects free speech rights by negating the freedom of the many in a purported attempt to rein in the few.

[The influential legal web site Jurist invited LLDF Legal Director Katie Short to submit this article on the case of McCullen v. Coakley—a challenge, now before the U.S. Supreme Court, to the Massachusetts law establishing 35-foot speech-free buffer zones around abortion mills in that state. Katie composed two briefs—one of which was at the petition stage, to persuade the Court to take the case—and helped prepare Mrs. McCullen’s counsel, Mark Rienzi, for oral argument before the Court. Katie has not only defended sidewalk counselors for over twenty years but has also been a sidewalk counselor herself. From this perspective, she understands the legal issues as well as the practical realities of this life-saving work.]


Stephanie Toti [opposing article on Jurist web site]

Katie Short [article on Jurist web site]

Questions-Remain in McCullen-Coakley Argument [LLDF].

State of Massachusetts Attempt to Justify Law Limiting Pro-life Speech [LLDF]

Friends Indeed for Pro-Lifers at the Supreme Court [LLDF]

Amicus Curiae brief [PDF]