SCOTUS to Hear Abortion Clinic Buffer Zone Case

By Brett Snider, Esq. on June 25, 2013 | Last updated on March 21, 2019

The Supreme Court accepted certiorari in McCullen et al. v. Coakley et al. on Monday, a case that again raises the issue of whether the Massachusetts abortion clinic “buffer zone” law is legal.

The appeal of the First Circuit decision in McCullen was brought by the plaintiffs, seven persons who claim that the Massachusetts law prevents their First Amendment freedoms in restricting their anti-abortion counseling around the clinic, reports The Boston Globe.

The circuit court affirmed this controversial law despite First Amendment concerns, holding that the law was narrowly tailored enough.

"Buffer Zone" Law

Although buffer zone sounds like there might be some sort of force field erected around the clinic, the law only refers to an area within a 35 foot radius of any reproductive health clinic in which it is illegal to enter.

The law exempts the following people from prosecution under the law and/or common sense:

  • People entering and leaving the clinic
  • Employees of the clinic
  • Construction or utility workers
  • Law enforcement and other first responders
  • People using the sidewalks or streets in buffer zone to go elsewhere

This is plaintiffs' second bite at the apple, after having been denied their facial challenge of the statute and now arguing the law as applied to them.

Pass the TPM

The First Circuit denied the facial challenge on many of the same grounds as the as-applied challenge, opining that the Massachusetts law was "content-neutral, narrowly tailored time-place-manner regulation."

The plaintiffs seem to contend that this law is somehow, as applied, a content-based and speaker-based prohibition on speech, although it is facially neutral.

The First Circuit viewed their attempts to use cases like Citizens United (allows corporate political speech) and Snyder (can't punch Fred Phelps in the face even if he protests your son's funeral) roughly equivalent to Rumpelstiltskin turning straw into gold, and for those of you not familiar with the fairy tale, that isn't a compliment.

Supreme Court Success Outlook

This isn't the first time that the Supreme Court has faced an abortion clinic buffer zone case, and their prior jurisprudence may tip their hand in deciding how to decide McCullen.

In Madsen v. Women's Health Ctr. in 1994, the Supreme Court upheld an injunction that excluded demonstrators from a 36-foot buffer zone around a clinic, holding that it was "content-neutral" and "appropriately tailored" despite mostly affecting anti-abortion speech.

Again in 2000, the Supreme Court determined in Hill v. Colorado, the Court upheld a 100 foot buffer zone around clinics as a valid time-place-manner restriction that left open ample alternative channels of communication.

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