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Mass. Abortion Clinic 'Buffer Zone' Struck Down by Supreme Court

By Brett Snider, Esq. on June 26, 2014 | Last updated on March 21, 2019

The U.S. Supreme Court struck down a Massachusetts abortion clinic "buffer zone" law that kept protesters more than 11 yards away from patients.

In McCullen v. Coakley, the High Court found that the state's Reproductive Health Care Facilities Act, which made it a crime for protesters to knowingly stand within 35 feet of an abortion clinic, violated the First Amendment. The abortion clinic "buffer zone" effectively cut off free speech efforts on sidewalks and other public thoroughfares, which are traditional forums for speech activities.

Why does this "buffer zone" violate constitutionally protected free speech rights?

'Buffer Zone' Too Broad

The High Court unanimously struck down the Massachusetts law for infringing on abortion protesters' free speech rights, but not all for the same reason.

The majority of justices, including McCullen author Chief Justice John Roberts, believe that the state's "buffer zone" law was unconstitutional because it was too broad, not because it targeted anti-abortion speech.

The First Amendment gives people the right to protest in public areas, but the government can legally restrict the time, place, and manner of those public demonstrations. The Supreme Court has allowed restrictions in traditional public fora like sidewalks as long as they:

  • Are content-neutral,
  • Are narrowly tailored to achieve a significant government interest, and
  • Leave open ample alternative channels for communication.

Here the majority of the Supreme Court argued that while the Massachusetts law was content-neutral -- it didn't focus on regulating any type of speech content -- it wasn't narrowly tailored to achieve the state's goals of protecting those entering an abortion clinic.

By criminalizing "sidewalk counselors" from standing on sidewalks outside abortion clinics, the "buffer zone" was restricting more speech than was necessary for Massachusetts to achieve its goals, the Court explained.

Lasting Effect on Other 'Buffer Zone' Laws

As USA Today reports, the High Court had upheld an 8-foot Colorado buffer zone law in 2000, but perhaps the extra 27 feet in Massachusetts' was a buffer zone too far. The 11th U.S. Circuit Court of Appeals had also upheld an abortion "buffer zone" law that prohibited protesting within 50 feet of any dwelling in a small Florida town.

The decision in McCullen doesn't mean that abortion-clinic buffer-zone laws are facially unconstitutional, only that they must be narrowly tailored in order to be enforced. It may be up to future state and federal courts to interpret how "narrowly tailored" the Court's opinion demands that these laws be.

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