A Massachusetts law that allows the suspension of First Amendment rights to shield women seeking abortions from pro-life activists will face scrutiny from the U.S. Supreme Court.
Massachusetts Gov. Deval Patrick in 2007 signed the “buffer zone” law that requires a 35-foot “zone” around the entrance of abortion clinics barring anyone who wishes to exercise their constitutional rights to express pro-life opinions.
“The government should not be allowed to create censorship zones where the First Amendment doesn’t apply in order to silence a particular viewpoint,” said attorney Michael De Primo, who is allied with the Alliance Defending Freedom.
“This buffer zone was designed to censor constitutionally protected speech. We are confident the Supreme Court will strike down the law that created the zone so that our clients and other peaceful pro-life citizens can once again freely share their message,” he said.
He currently is litigating the case with several other attorneys.
Lawyers for the state insist the law was needed to address a potential public safety problem caused by the speech of the pro-life advocates.
The petition to the Supreme Court in the case explained Massachusetts “has made it a crime for speakers to ‘enter or remain on a public way or sidewalk’ within 35 feet of an entrance, exit, or driveway of ‘a reproductive health care facility.’”
The law applies only at abortion clinics, the petition notes and exempts, among others, clinic employees or agents acting within the scope of their employment.
“In effect, the law restricts the speech of only those who wish to use public areas near abortion clinics to speak about abortion from a different point of view,” the petition says.
The case, brought on behalf of Eleanor McCullen and others against Massachusetts Attorney General Martha Coakley and others, said Massachusetts is choosing to enforce “selective speaker exclusion zones on the public streets and sidewalks.”
The Supreme Court previously has upheld a “bubble law” in Colorado, which prevented speakers from knowingly approaching another person within eight feet without consent. However, the law relied on close physical proximity and did not limit entry to a zone or restrict speech.
The Colorado law also applied to all health facilities, not just abortion clinics, and to all speakers, not just those opposed to abortion.
“Undisputed evidence showed that women often have abortions because of financial or other pressures, including pressure from husbands or boyfriends. Indeed, most women that petitioner McCullen succeeds in speaking with tell her they do not want an abortion but feel they have no real alternative. Academic students confirm that women often seek abortions because they feel they cannot afford a baby, are having relationship problems, or are being pressured,” the petition says.
“Petitioners thus have a firm basis for believing that a woman seeking an abortion may welcome speech that can offer both moral support and more concrete assistance.”
The law also creates impossible situations.
“In Boston, for example, the exclusion zone includes all but one foot of the public sidewalk, and on one side extends four feet into the street, making it impossible for petitioners even to stand at the edge of the zone.”
Dana Cody, executive director of Life Legal Defense Foundation, called McCullen v. Coakley a “clear case of viewpoint discrimination.”
“Activists who make disturbances at military funerals, animal rights protests and ‘occupy’ demonstrations are not bound by the sort of restrictions applied to peaceful pro-life witnesses who invite women to learn about abortion alternatives,” Cody said.
She said the mere fact that the Supreme Court has taken the case “should give pause to San Francisco, Chicago and other cities that have recently imposed more draconian restrictions on pro-life speech.”
“We are optimistic that the court will not only strike down the Massachusetts law, but also revisit some of its own prior precedents that have led lower courts to believe that, as a matter of law, pro-life speech is less deserving of protection,” she said.
The government has a history of censoring pro-life messages and images. In a recent Colorado case, the Supreme Court refused to hear arguments concerning a lower court decision to censor graphic images of aborted babies within sight of abortion supporters.
Law professor and blogger Eugene Volokh, who participated in the case brought against several pro-life protesters by St. John’s Church in the Wilderness, said the conflict remains unresolved and unaddressed.
“The matter thus remains where it stood before the petition – some lower courts think that restricting gruesome images (and harsh words, such as signs calling abortion providers ‘murderers’) in places where young children can see them is constitutional, while others think it violates the First Amendment,” he wrote.
“A denial of certiorari is not a decision on the merits, so all the lower court decisions stand as precedents within their own jurisdictions, but as a conflicting body of law for other jurisdictions.”
The Colorado state court ruled images of violent abortion procedures can be banned, even though the restriction is based on content.
The case was presented to the high court the Thomas More Society, and focused on graphic images that abortion opponents have displayed to change the public’s mind about abortion.
A Colorado appeals court said the images would have to be censored, and the state Supreme Court refused to take the case. But the censorship, according to the filing, meant that a “content-based” restriction, acknowledged as such even by the court, is law in Colorado.
WND reported that U.S. Attorney General Eric Holder lost a case to pro-lifer Susan Pine that cost the federal government $120,000. That was after a local judge noted the strong indications of collusion between the abortion business and the federal agency to eliminate Pine’s speech rights.
Liberty Counsel defended Pine when she was charged by the federal government for allegedly blocking the entrance to the Presidential Women’s Center. At the time, U.S. District Judge Kenneth L. Ryskamp openly speculated that there was a cozy relationship between the abortion clinic and federal prosecutors that could warp justice.
As Ryskamp dismissed the complaint against Pine, he explained that had there been just a little more evidence, he might have taken action.
“It is rather curious that the Department of Justice was able to meet with the [Presidential Women's Center in West Palm Beach, Fla.] staff and police officers the very next day after the alleged violations occurred. It is also curious that the government failed to make any efforts to obtain the identities of the passengers who are the alleged victims in this case – the court finds it hard to believe that the government was completely unaware of the existence of the sign-in sheets and video surveillance system,” he wrote.
The judge said the court “can only wonder whether this action was the product of a concerted effort between the government and the PWC, which began well before the date of the incident at issue, to quell Ms. Pine’s activities rather than to vindicate the rights of those allegedly aggrieved by Ms. Pine’s conduct.”
“If this is the case, the court would be inclined to sanction the government with, at a minimum, an adverse inference. Given the absence of further evidence substantiating the court’s suspicions, the court is not authorized to do so,” the judge wrote.
The judge’s 21-page ruling in the case that granted Pine a summary judgment and cleared her of the charges said the entire episode raised questions. A settlement followed.
“The court is at a loss as to why the government chose to prosecute this particular case in the first place,” Ryskamp wrote. “The record [is] almost entirely devoid of evidence that Ms. Pine acted with the prohibited motive and intent or that Ms. Pine engaged in any unlawful conduct. The government has failed to create a genuine issue for trial on all three elements of its FACE (Federal Access to Clinic Entrances) claim, and Ms. Pine is entitled to judgment as a matter of law.”