Advice from Chief Justice Roberts on Legislating for Safety at Abortion Clinics

Supreme Court Justices aren’t usually in the advice-giving business.  But the Chief Justice made an exception in a recent case involving regulating speech outside abortion clinics.  Interestingly, his advice is aimed directly at state legislatures.  And it is simple.  Buffer zone:  no.  State statutes criminalizing injury, intimidation, interference, harassment, and obstruction at clinics: yes.

In a unanimous opinion in McCullen v. Coakley the Supreme Court held that a Massachusetts statute making it a crime to stand on a public road or sidewalk within 35 feet of an abortion clinic violates the First Amendment.  Buffer zone statutes and ordinances, particularly outside the context of abortion clinics, are common.  Two other states (Colorado and Montana) regulating speech outside abortion clinics; only Massachusetts used a buffer zone.  See Protecting Access to Clinics, Guttmacher Institute (July 2014).      

In 2000 Massachusetts adopted a law, modeled around the Supreme Court’s decision in Hill v. Colorado, prohibiting anyone from coming within six feet of someone entering an abortion clinic, within an 18-foot radius of the clinic.  In 2007 Massachusetts adopted a 35-foot buffer zone because protesters routinely violated the statute.  Petitioners are “sidewalk counselors.”  The buffer zones prevented them from having personal interactions with those entering the clinics which they viewed as essential to their “sidewalk counseling.”

The Court reasoned the buffer-zone law violated the First Amendment because it “burden[s] substantially more speech than necessary” to achieve the state’s interests in ensuring public safety, preventing harassment, and combatting obstruction at clinic entrances. 

The Court offered state and local governments three suggestions, other than generic criminal statutes forbidding assault, breach of the peace, trespass, vandalism, etc., to deal with public safety problems at abortion clinics.  Like about a dozen states, state and local governments could pass legislation similar to the federal Freedom of Access to Clinic Entrances Act which prohibits injury, intimidation, or interference toward someone seeking an abortion.  To deal with harassment, state and local governments could criminalize following and harassing people entering a clinic.  And obstructing clinic entrances can be dealt with by statute or ordinance.  About 20 states already have adopted some combination of statutes the Court recommends.  See Protecting Access to Clinics, Guttmacher Institute (July 2014).

The State and Local Legal Center’s (SLLC) amicus brief asked the Court not to rule in a way that limits state and local government’s ability to use buffer zones to protect public safety in a variety of contexts.  The Court did not discuss buffer zones in other contexts but it did conclude that just because the buffer zone in this case was specific to abortion clinics did not mean the law was content-based.  Based on this conclusion, it seems likely that buffer zones that limit speech in narrow contexts (at circuses, funerals, political conventions, etc.) will not be considered context-based.  If a law limiting speech is content-based, court apply a higher standard to review when determining whether it violates the First Amendment.

The National League of Cities, the National Association of Counties, the International City/County Management Association, the United States Conference of Mayors, and the International Municipal Lawyers Association joined the SLLC’s brief.