The Supreme Court unanimously declared 35-foot buffer zones outside Massachusetts abortion clinics unconstitutional on Thursday, and the organization that won the case said it will go after other cities, such as Pittsburgh, that have similar limits to keep demonstrators away from patients.
“We are looking into other areas that have such laws and ordinances, and, yes, we will seek to bring them in line with the Constitution and today's ruling,” said Kerri Kupec, spokeswoman for Alliance Defending Freedom, which represented the plaintiff in the Massachusetts case and sued to change rules restricting activists in Pittsburgh eight years ago.
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The Massachusetts case, McCullen v. Coakley, was brought by Eleanor McCullen, an anti-abortion activist who argued that the buffer zones violated her First Amendment right to peacefully counsel women seeking abortions. Massachusetts said the law protected a constitutional right to obtain an abortion free from mental or physical harassment.
“Americans have the freedom to talk to whomever they please on public sidewalks,” said Alliance Defending Freedom attorney Mark Rienzi, who represented McCullen. “That includes peaceful pro-lifers like Eleanor McCullen who just wants to offer information and help to women who would like it.”
The court agreed.
“It is no accident that public streets and sidewalks have developed as venues for the exchange of ideas,” Chief Justice John Roberts wrote. “Even today, they remain one of the few places where a speaker can be confident that he is not simply preaching to the choir. ... In light of the First Amendment's purpose ‘to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail … ,' this aspect of traditional public fora is a virtue, not a vice.”
Roberts noted that no other state has a similar law and that he is aware of only five cities that have fixed buffer zones around abortion clinics: Pittsburgh; Burlington, Vt.; Portland, Me.; and San Francisco and Santa Barbara in California.
Eight years ago, the alliance represented Indiana Township's Mary K. Brown in U.S. District Court, Downtown.
Brown, a longtime abortion opponent, sued the city in 2006 when it passed an ordinance that combined “bubble zones” — no less than 8 feet of personal space for patients entering the building — and “buffer zones,” which prohibit protesters from standing within 15 feet of the entrance to any reproductive health care facility where abortions are performed.
U.S. District Judge Nora Barry Fischer ruled in 2009 that the combination violated protesters' constitutional right to free speech. The city dropped the bubble zone later that year.
Aleigha Cavalier, public affairs director for Planned Parenthood of Western Pennsylvania, said women's rights advocates “are still in the process of digesting exactly what this means” for the Pittsburgh ordinance.
At Planned Parenthood's Downtown location, protesters with pamphlets must stand outside the wide, yellow semi-circle on Liberty Avenue that marks the 15-foot buffer. Although no one was lingering outside the organization's door at midday on Thursday, clinicians usually see three or four protesters a day, Cavalier said.
Protesters outside Magee-Womens Hospital, which offers abortion services, often gather at the corner of Forbes and Craft avenues, waving signs at passers-by. Protests of 100 or more people are less common, but occasional, Cavalier said.
Susan Frietsche, senior staff attorney for the Women's Law Project, said cities could opt for smaller zones, local ordinances instead of state legislation or floating bubbles, as long as legislators can document pressing need for strict protection.
Although the court was unanimous in its decision, Roberts joined the four liberal justices to strike down the Massachusetts buffer on narrower grounds than the other, more conservative justices wanted.
“It doesn't mean that buffer zones are categorically wrong,” Frietsche said. “If we are challenged, I think ours will pass constitutional scrutiny, and at the district level, it already has. To justices, size seems to matter. Massachusetts had a buffer that took up a substantial section of the sidewalk. Ours does not.”
In a separate opinion, Justice Antonin Scalia criticized Roberts' opinion for carrying forward “this court's practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents.”
Roberts said in his ruling that authorities have less-intrusive ways than buffer zones to deal with problems outside the clinics and noted that most of the problems reported by police and the clinics occurred outside the Planned Parenthood facility in Boston, and only on Saturdays when the largest crowds typically gather.
Clinic officials said they are most concerned about safety because of incidents of violence. In 1994, a gunman killed two receptionists and wounded five employees and volunteers at a Planned Parenthood facility and another abortion clinic in nearby Brookline, Mass. The most recent killing was in 2009, when Dr. George Tiller, who performed abortions, was shot in a church in Wichita, Kan.
Abortion protesters said that other state and federal laws already protect health center workers and patients, as well as access to clinics.