By Megan Amundson
Executive Director of NARAL Pro-Choice Massachusetts
Tomorrow the US Supreme Court hears oral arguments in McCullen v. Coakley, a case challenging the Massachusetts Buffer Zone Law. The law, passed in 2007, creates a 35-foot, content-neutral “buffer zone” around the entrance to reproductive health care clinics.
Anti-choice protestors are challenging the law, claiming it violates their First Amendment right to free speech. They assert that, as peaceful sidewalk counselors, they are unable to provide women with information about options for their pregnancy that they are not receiving from abortion clinics because they cannot approach patients within the buffer zone to look them in the eye, hand them a flyer, and convince them to make a different decision.
The Massachusetts Buffer Zone Law does not violate the First Amendment, and it protects another important constitutional right—the right to abortion care. The law does not discriminate based on the content of the speech, nor does it favor one type of speech over another; all protestors—regardless of their message—must abide by the 35-foot buffer zone. In addition, the law furthers the Commonwealth’s substantial interest in ensuring safe access to reproductive health care facilities, especially given the persistent violence targeted at abortion clinics.
The Supreme Court decision in Hill v. Colorado in 2000 set out the applicable constitutional standards for buffer zone laws. The Hill decision upheld a Colorado law that created an 8-foot, no-approach bubble zone around any person within a buffer zone stretching 100 feet from a health care facility and made it a misdemeanor to obstruct entry to or exit from a health care facility. Using this decision as a guide, the First Circuit Court of Appeals upheld the Massachusetts Buffer Zone Law, both on its face and as applied to specific reproductive health services clinics. The Supreme Court agreed to take up the case on the anti-choice protesters’ petition for a writ of certiorari. By hearing this case, the Supreme Court could reopen its own precedent around buffer zones.
The Massachusetts legislature passed the Buffer Zone Law because Massachusetts has a history of violence at abortion clinics: on December 30, 1994, John Salvi opened fire in abortion clinics in Boston and Brookline, MA, killing two and wounding five others. The Buffer Zone Law was passed to ensure the safety of patients and clinic staff, after other efforts—including a floating bubble zone—proved unsuccessful in blocking protestors from physically intimidating patients and staff, and from obstructing patients’ ability to enter clinics.
Buffer zones are critical to reducing violence and intimidation because they prevent protestors from being physically close enough to commit acts of harm against those accessing health care. They also encourage public safety officers to take the threats of violence seriously. In jurisdictions that have imposed buffer zones around health care clinics, 75 percent of abortion providers say that the laws have improved police response time to threats.
While the passage of the Massachusetts Buffer Zone law has caused a steep decline in violence at Massachusetts’ abortion clinics, the rest of the country has not seen a decline in violence. Between 2007 and 2012, across the country there have been eight reported arsons, 41 incidents of assault and battery, more than 200 acts of vandalism, 37 bomb threats, 41 death threats, 81 suspicious packages, 50 reports of staff and patients being stalked, and 30 facility blockades that shut down services.
The buffer zone has been the only tool to effectively reduce violence at abortion clinics in Massachusetts. In 2013, NARAL Pro-Choice Massachusetts conducted a survey of seven abortion providers to determine the success of the buffer zone at clinics across the state and the impact protestors still have on patients’ access to abortion care. Every abortion clinic in Massachusetts still has protestors, even with the buffer zone—with some clinics seeing as many as 70 protestors on weekends—because protestors are still able to talk to patients and hold signs to communicate their message. Abortion providers in Massachusetts agree that the buffer zone law has made access to health care safer for women and their loved ones, although all seven abortion clinics surveyed still consider protestors to be a serious concern for patients and providers.
Depending on the scope of the Supreme Court’s ruling in the case, buffer zone laws around the country could be in jeopardy, including those in Colorado, Montana, and municipalities such as Burlington, VT; Portland, ME; Pittsburgh, PA; Chicago, IL; and Sacramento, CA. Additionally, the case might even impact buffer zones that protect access to other constitutionally protected rights, like those around polling locations to protect voters from intimidation by political workers. It potentially could take away the most effective tool to prevent violence at abortion clinics and to protect the safety of clinic staff and women accessing basic health care.
Megan Amundson is the Executive Director of NARAL Pro-Choice Massachusetts.