Free Speech and Choice May Be At Odds In Supreme Court CasePosted: January 15, 2014
Today the U.S. Supreme Court heard arguments in the case of McCullen v. Coakley. The case challenges a current Massachusetts law that creates a 35-foot buffer zone around entrances to reproductive health clinics for patients and employees. Whether state or local governments can enforce buffer zones around clinics in order to protect their patients and staff from harassment and violence, raises questions of free speech and individual’s privacy and safety when accessing healthcare.
Eleanor McCullen, who is bringing the suit, is a regular protester outside a Boston clinic and claims that the law violates her right to free speech. Proponents of the law, however, argue that it does not restrict her rights but merely regulates that speech in order to protect the safety of patients. Prior to passage of Massachusetts’ current 2007 law, women entering the clinic were often subject to serious harassment or blocked entrance access. Similar buffer zone laws currently protect over 35 percent of clinics across the country. These laws have been created largely as a reaction to past instances of violence outside these family planning clinics. In fact, Massachusetts first enacted a buffer zone law in 2000 in response to a 1994 shooting that resulted in the death of two clinic staff workers and wounded five others.
Nearly fifteen years ago the high court upheld similar restrictions on speech and protesting outside medical facilities in Colorado, but the issue has been largely untouched since then. A central issue in this case is whether the state can distinguish between peaceful protestors and those who would be violent offenders. Massachusetts argues that it is “enormously difficult” to do so, requiring the law to restrict both loud protest and quiet conversation within the protected area. Justice Kennedy, who dissented in the 2000 Colorado case, is troubled by the Massachusetts law, and claims it’s easy to differentiate which protesters may become violent. Even Justice Elena Kagan questioned why Massachusetts needed 35 feet saying she has no problem with requiring “everyone take a step back” but that 8 feet could be sufficient.
That claim however, ignores the realities family planning clinics face everyday. Massachusetts’ initial 2000 law only provided for an 18 feet fixed buffer zone. This 18 foot zone was increased to 35 feet in 2007 after anti-choice protestors resorted to additional methods to “exercise their right to free speech,” including blocking patients access to parking garages, throwing literature at them and filming and touching them as they made their way to the clinics. The 2007 law sought to address these inefficiencies in order to protect patients private space, as well as the space around entrances and doorways of family planning clinics.
Three states and dozens of municipalities currently protect their clinics with similar buffer zone laws. Striking down such laws would leave individuals and clinics across the country open to intrusive, and potentially violent threats and harassment while they attempt to access safe and legal healthcare. The current Massachusetts law has already been upheld by the 1st Circuit Court of Appeals, and a Supreme Court decision is expected before the end of the term in June.