Monday, July 21, 2014

The Difference Between the Supreme Court Building’s Buffer Zone and Abortion Clinic Buffer Zones and the False Sense of Unanimous Decisions


     Many of the Supreme Court decisions from the October 2013 term contributed to widespread furor and even originated a new term by pundits designed to shed light on the “partisanship” of the Court – “faux-nimity” – which was used to describe decisions that were 9-0 unanimous decisions, but included several concurring opinions that read like dissents.  The Court’s decision in McCullen v. Coakley, which struck down a Massachusetts law that established a fixed 35-foot buffer zone around abortion clinics with the intention of protecting women seeking to get abortions from harassment, has been widely criticized as hypocritical and evidence that the Court is shifting more to the right side of the political spectrum.

     The Court ruled 9-0 that the law was unconstitutional because it violated the First Amendment’s protection of free speech for individuals who sought to provide non-confrontational counseling to women who were entering the clinic to get abortions.  According to SCOTUSblog’s faux-nimity examination, McCullen, fits into a category that, “counts only those cases in which every Justice joined some part of the majority opinion.”  SCOTUSblog’s assessment does “not count McCullen as a unanimous decision because only four Justices joined the majority opinion written by Chief Justice Roberts; Justice Scalia concurred in the result only, with a separate opinion that was joined by Justices Thomas and Kennedy, while Justice Alito filed a separate opinion in which he also concurred in the result only.”

     Faux-nimity aside, most ordinary people who are not concerned with the geeky breakdowns of Supreme Court opinions worry that the Court’s decision in McCullen demonstrates a conservative shift in the Court and furthermore, a hypocritical false sense of reality given the Supreme Court building enjoys its own buffer zone.  According to Boston Magazine, the law governing the Supreme Court buffer zone prohibits "demonstrations" or protests and states, “The term ‘demonstration’ includes demonstrations, picketing, speechmaking, marching, holding vigils or religious services, and all other like forms of conduct that involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which is reasonably likely to draw a crowd or onlookers.”  Boston Magazine also importantly pointed out that the Court’s law does not include sidewalks that surround it.

     Why is the Court’s buffer zone different from the one concerning Massachusetts abortion clinics?  The Supreme Court’s buffer zone only concerns the plaza just outside the Court and not the sidewalk.  As the Court noted in McCullen, sidewalks hold a “’special position in terms of First Amendment protection’ because of their historic role as sites for discussion and debate.”  Chief Justice Roberts cited the American Revolution as analogous to the role the petitioners in McCullen were trying to achieve.  “It was in this form—as pamphlets—that much of the most important and characteristic writing of the American Revolution appeared,” wrote Chief Justice Roberts concerning the importance of the sidewalk.

     The petitioners also were not characterized as “protestors” but sought to provide non-confrontational sidewalk counseling.  The petitioners believed the 35-foot buffer zone was too large for them to be able to achieve their messaging without yelling at women entering the clinic, which the petitioners believed to be contrary to the gentle and non-confrontational approach they tried to encompass.

     The Court also determined that the government’s interest in abridging protestors’ First Amendment rights to free speech could not overcome the time, place, or manner regulation because in order to be what the Court described as a “narrowly tailored” regulation, meaning it only applies to one specific entity (in this case abortion clinics) the regulation “must not ‘burden substantially more speech than is necessary to further the government’s legitimate interests.’”  To that point, there are other measures that protect the safety of women entering abortion clinics such as anti-harassment laws and laws prohibiting crowding at entryways.  Chief Justice Roberts continued, “the prime objective of the First Amendment is not efficiency."  Typically, this time, place, manor issue is determined on a case-by-case basis and the Court maintains that their buffer zone “is meant to keep the area clean and safe, and maintain ‘suitable order and decorum’ on the property,” according to Boston Magazine. 

     In a practical sense, the Massachusetts buffer zone is not necessarily a viable solution to the horrific incident that happened over a decade ago in which a man walked into a Massachusetts abortion clinic and murdered nurses and a doctor.  While the 35-foot buffer zone would not protect staff and/or patients against an armed intruder, it did adequately give women piece of mind when entering the facilities.  Intimidation is a real factor that must not be discounted.  Massachusetts could not prove, however, that their intent to provide women protection against intimidation outweighed the cost of free speech infringement.  “For a problem shown to arise only once a week in one city at one clinic, creating 35-foot buffer zones at every clinic across the Commonwealth is hardly a narrowly tailored solution,” wrote Chief Justice Roberts.  

Other methods of protection such as the “floating buffer zone,” which is a pre-determined radius (a "bubble") around a patient is an alternative method to the fixed buffer zones as the Court did not rule on these “bubbles.”  However, these bubbles are much harder to police.

     Finally, regarding a shift farther right, and in concert with the sense of faux-nimity, Justices Scalia and Alito authored concurring opinions in McCullen that sought to go farther than the majority opinion did.  As some legal commentators have noted, compromises must have been achieved in order to get a unanimous decision.  Justice Scalia stated that he would overrule Hill v. Colorado, a case from 1999 that determined Colorado’s statute establishing eight foot bubbles around individuals within 100 feet of a health care facility is constitutional.  Justice Scalia noted in his concurrence in McCullen that his reasons for overturning Hill are outlined in his dissent in the Hill decision and it “stands in contradiction to our First Amendment jurisprudence.”  Furthermore, Justice Scalia mischaracterizes the intent of the Massachusetts law by stating, “The obvious purpose of the challenged portion of the Massachusetts Reproductive Health Care Facilities Act is to ‘protect’ prospective clients of abortion clinics from having to hear abortion-opposing speech on public streets and sidewalks.”  In this statement, Justice Scaila also sums up that he would examine the Massachusetts law as “content-based,” meaning it discriminates specifically against anti-abortion speech.

     Justice Alito also addressed the issue of content-based speech stating in his concurrence, “It is clear on the face of the Massachusetts law that it discriminates based on viewpoint. Speech in favor of the clinic and its work by employees and agents is permitted; speech criticizing the clinic and its work is a crime. This is blatant viewpoint discrimination.” This is not totally true as addressed in Chief Justice Roberts’ majority, which is why no one else joined Justice Alito’s concurrence.  As the majority pointed out, the Massachusetts law “does not draw content-based distinctions on its face. Whether petitioners violate the Act ‘depends’ not ‘on what they say,’…but on where they say it,” e.g. a sidewalk in front of an abortion clinic.

     To be fair to the justices writing concurring opinions in this case, Justice Sotomayor authored a much discussed and disputed dissent in Schutte v. Coalition to Defend Affirmative Action, famously condemning the majority for their disregard of race based preference and affirmative action.  Her dissent was highly scrutinized among the conservative community as a highly partisan legal view indicating that the Court is potentially at its most partisan point in recent memory (despite the most "unanimous" decisions since Chief Justice Roberts assumed that role).

     Ultimately, the Massachusetts law, on its face, cannot meet Constitutional muster, despite being well intended and differs from the Supreme Court’s buffer because the Court’s buffer does not limit speech on the adjacent sidewalks, but rather on its grounds.  However, there is litigation currently challenging this buffer as unconstitutional. Perhaps this will achieve belated contentment for dissenters of the McCullen decision.   

               

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