Last Thursday, the Supreme Court of the United States ruled Massachusetts’ 35-foot buffer zones surrounding its abortion clinics unconstitutional, allowing pro-life protesters once again to come within 35-feet of the building and approach passersby, staff, and entering patients.
“It was a bad law,” said Harvard law professor Mark Tushnet. “It would be astonishing if any lawyer won this case.”
And he’s right, unfortunately. The 35-ft fixed buffer zone law was rife with issues, not the least of which was its inherent conflict with the first amendment of the Constitution, which seems in the eyes of the Supreme Court all but holy writ. And perhaps it should be: the Constitution and its amendments were established, in part, for the purpose of limiting and delineating governmental power, and it is duly important that the government remain in concordance with those limits.
The law was found unconstitutional in McCullen v. Coakley because it was deemed to infringe on the free speech rights of pro-life protesters, who have an interest in approaching would-be abortion patients to offer pamphlets and advice. While there are certain limits, such as time, place and manner (TPM) restrictions, that may be imposed on the right of free speech, the Supreme Court found unanimously that the buffer zone law did not meet all the criteria to be considered a valid TPM restriction (namely, it did not meet the criterion of being narrowly-tailored – it limited too much free speech). And so, it was struck down, now but a relic of history – an example of the kind of pro-repro-rights legislation that likely won’t stand up to legal scrutiny in the future.
Many people reacting to the news of the Supreme Court’s verdict immediately expressed concern that a lack of a buffer zone around abortion clinics will contribute to an increase in harassment and violence committed by anti-choice protesters since there is now no barrier to prevent them from blocking entrances to the clinic or from coming within close quarters of patients of the clinics. This is a valid concern, regardless of the validity of the buffer zone legislation itself; the 35-foot buffer zone was a variant on a law passed in response to a 1994 shooting at a Massachusetts abortion clinic that claimed two lives. Violence at abortion clinics is no laughing matter, and it is of utmost importance to protect women wishing to undergo perfectly legal (and sometimes medically necessary) procedures in accordance with their own choices.
However, the fact that this law was unanimously struck down is very telling. A law that finds itself in violation of existing statute (let alone an amendment of the Constitution) practically strikes down itself. Were this law to be kept on the books, it would set an absolutely awful precedent for future legislation limiting the time, place, and manner of certain speech. That this law, thought to be a protector of women’s reproductive rights, was struck down, should not be discouraging to people who fight for equal reproductive rights. We need to come up with better legislation that will more effectively (and most importantly, more precisely) target harassment and violence against those seeking abortions – legislation that does not limit speech (which conservatives will always fight against) but, rather, limits harmful behavior.
We need legislation that penalizes the behaviors that are most dangerous to women seeking abortion. Instead of keeping protests within a 35-foot-zone, we should allow protesters to approach passersby and patients (as this is in accordance with free speech) to request to speak to them, but require that they back down when requested or when told “no,” or else face harassment charges. It may also be beneficial to enact “floating” or dynamic buffer zones that move with clinic patients, such that protesters may speak wherever they desire so long as they stay a certain number of feet away from all patients. This empowers patients, permitting them to come to protesters as they wish if they are unsure of their decision, while allowing them to remain safe from harassment from pushy pro-lifers if they don’t feel comfortable being challenged for their choice. Decisions such as Hill v. Colorado show that there is precedent for the constitutionality of floating buffer zones.
It is in difficult situations such as these that one must remember that although a law may be one way of solving a problem, it may not be the most effective, just, or rational means of solving the problem. Massachusetts’ now-defunct buffer zone law exemplifies a law crafted with the noblest of intentions — the intention of protecting women from violence and harassment — but which fell short of the requirement that a law may not restrict free speech more than is necessary. Rather than see this as a failure, I implore reproductive rights advocates to view this as a learning experience, and an example against which to compare better anti-harassment and anti-violence legislation.
Stay tuned for part 2 of The Flounce’s Supreme Court coverage, concerning Burwell v. Hobby Lobby, Thursday!