Human Rights

Supreme Court Throws Out Abortion Clinic Sidewalk Buffer Zones, Saying Free Speech Includes Bullying Women

Chief Justice John Roberts writes another opinion for the religious right.

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In a dramatic blow to reproductive rights, the Supreme Court has ruled that sidewalk buffer zones outside clinics intended to keep protesters from verbally assulting women seeking abortion services are unconstitutional and violate the protesters' free speech.

The ruling, McCullen vs.Coakley, overturns a 2000 Massachusetts law that imposed a 35-foot protest-free zone on “the public way or sidewalk” near the entrance to reproductive health facilities to ensure that women seeking abortions would not be verbally hounded by anti-abortion activists—or even be targeted for sidewalk counseling not to have a planned abortion.

The decision, written by Chief Justice John Roberts, found the sidewalk restrictions were too broad and violated the First Amendment.

“In short, traditional public fora are areas that have historically been open to the public for speech activities. Thus, even though the Act [buffer zone law] 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,” he wrote. “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.”

The case centered around three Planned Parenthood clinics in the Boston area where anti-abortion protesters have spent years trying to discourage and intimidate women from seeking abortions. Roberts distinguished between more aggressive protesters and a group of elderly women who want to offer “comfort” to women entering the clinics—and talk them out of abortions. The lead plaintiff was such an elderly woman. The Chief Justice wrote:

“Some of the individuals who stand outside Massachu­setts abortion clinics are fairly described as protestors, who express their moral or religious opposition to abortion through signs and chants or, in some cases, more aggres­sive methods such as face-to-face confrontation. Petition­ers take a different tack. They attempt to engage women approaching the clinics in what they call “sidewalk coun­seling,” which involves offering information about alterna­tives to abortion and help pursuing those options.”

Roberts said that Massachusetts’ buffer zone had been keeping protesters away and the number of women talked out of abortions had dramatically fallen. He said that sidewalks were areas where free speech must be protected—and that was a higher constitutional priority than public safety concerns surrounding women entering clinics. He wrote:

These burdens on petitioners’ speech have clearly taken their toll. Although McCullen claims that she has per­suaded about 80 women not to terminate their pregnan­cies since the 2007 amendment [to the Massachusetts law], she also says that she reaches “far fewer people” than she did before the amendment. [Plaintiff] Zarrella reports an even more precipitous decline in her success rate: She estimated having about 100 successful interactions over the years before the 2007 amendment, but not a single one since. And as for the Worcester clinic, Clark testified that “only one woman out of 100 will make the effort to walk across [the street] to speak with [her].” The buffer zones have also made it substantially more difficult for petitioners to distribute literature to arriving patients.”

The Court went on to say that the Massachusetts buffer zone law was too broad, but that abortion providers could work with police on a case-by-basis to create rules that would ensure safe access to the reproductive health clinics. 

In practice, that remedy will likely be a costly, time-consuming and complicated process for groups like Planned Parenthood—which are already under assault in many states. As women’s health advocates react to the Court’s ruling today, you can expect to hear many worries about how buffer zones laws passed in other states will become targets of similar lawsuits.

The ruling in McCullen will be seen as a major victory for the religious right, written by a Chief Justice who is out of step with the majority of Americans and women who support reproductive health services, including abortion. It gives the anti-abortion side freedom to bully vulnerable women and makes it harder for reporductive health providers to protect clients.   


Steven Rosenfeld covers national political issues for AlterNet, including America's democracy and voting rights. He is the author of several books on elections and the co-author of Who Controls Our Schools: How Billionaire-Sponsored Privatization Is Destroying Democracy and the Charter School Industry (AlterNet eBook, 2016).

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