Today, the United States Supreme Court unanimously struck down the Massachusetts Reproductive Health Care Facilities Act (The Act) as a violation the First Amendment. The Court’s majority opinion, penned by Justice Roberts determined:
The Act restricts access to ‘public way[s]’ and ‘sidewalk[s],’ places that have traditionally been open for speech actives and that the court has according label traditional public fora.
Justice Scalia, Justice Alito, and Justice Thomas all concurred with the final decision of the majority opinion but only in judgment authoring two dissenting statements criticizing parts of the Court’s ruling.[Background: The Reproductive Health Care Facilities Act made it a criminal act to stand on a public sidewalk or public right of way within 35 feet (called a buffer zone) of a doorway or entrance to a health center that performs abortions (excluding hospitals). Employees or agents of an abortion clinic were exempted from the Buffer Zone because the law determined they were acting within the terms of their employment while in the Buffer Zone. The second provision of the Act was a prohibition on intentionally obstructing access to an abortion clinic. Mrs. McCullen along with other pro-life advocates sidewalk counsel outside the facility by engaging abortion bound women attempting to provide them with information on options to the abortion. Mrs. McCullen and the other petitioners sued over the constitutionality of the Buffer Zone after their attempts to communicate with women was prevented by clinic escorts who accompany abortion bound women into the abortion clinic.]
The abortion Buffer Zone ruling by the Supreme Court today reaffirms the importance of free speech. A woman deserves to hear all the healthcare options available to her before she decides the fate of her unborn child – an option of choice the abortion industry refuses to provide to women. When 60% of women feel like they had no other option than abortion, pro-life sidewalk counselors seek to fill that void.
The Court’s opinion states the Massachusetts Government did seriously and substantially burden “more speech than necessary to further the government’s legitimate interests.” (The so-called “legitimate interest” is state’s irritated view of the clash between the pro-life counselors and the clinic escorts outside abortion clinics.” The Court determined that the Massachusetts government had not appropriately or adequately attempted to alleviate the abortion clinic’s “safety concerns” before aggressively trampling the First Amendment rights of the pro-life sidewalk counselors.
The Court also determined the Buffer Zone was over zealous because during the briefing of the case, the abortion industry only supplied evidence that there were “safety concerns” outside just one of the abortion clinics on one Saturday a week. The Court found a buffer zone that included all the clinics in the area as well as an incredibly broad 35-foot buffer zone quite unnecessary.
While the majority ruling opinion still contained language in support of the abortion industry, and seemed to still reveal its bias towards abortion, it showed a new and positive understanding of our work outside the clinics – not to harass, intimidate or upset- but to offer real options which, in the end, only empower women. The Justices acknowledged sidewalk counseling is “compassionate” and “caring” in nature and further state the Massachusetts governments’ obstructions to sidewalk counseling has “clearly taken their toll” on the prolife advocates’ work. “The zones…compromise petitioners’ ability to initiate the close, personal conversations that they view as essential to sidewalk counseling.”
Once we move past the Court’s initial judgment however, the remaining language of the opinion isn’t necessarily the pro-life slam-dunk we were hoping for.
The Court wrongly determined that the Massachusetts Buffer Zone does not specifically discriminate against pro-life people. This determination leaves the door open to abortion clinics attempting to seek some form of lesser restrictions against sidewalk counselors outside an individual clinic.Justice Alito eloquently highlights the Court’s mistake in his concurring judgment statements:
Consider this entirely realistic situation…a woman enters a buffer zone and heads haltingly towards the entrance. A sidewalk counselor, such as petitioners, enters the buffer zone, approaches the woman and says, “if you have doubts about an abortion, let me try to answer any questions you may have. The clinic will not give you good information.” At the same time, a clinic employee as instructed by the management, approaches the same woman and says, “come inside and we will give you honest answers to all your questions.” The sidewalk counselor and the clinic employee expressed opposing viewpoints but only the first violated the statue.
While the majority opinion states it allows abortion clinic workers and agents to do their jobs, it fails to ask if forcing a woman to refuse literature offered to her with abortion alternatives is appropriately within the abortion clinic workers’ job and – so far within – to prohibit the squelching of the pro-life counselors’ First Amendment right.
Does this Pop Chicago’s Bubble Zone? Illinois Right to Life’s opinion is that Chicago’s Bubble Zone [prolife counselors can’t approach an abortion bound woman within 8 feet if they are within 50 feet from the abortion clinic’s entrance] could be weakened – if not popped – based upon the Court’s assessment of Massachusetts’ Buffer Zone. There is no question that Chicago’s Bubble Zone is overzealously tailored. The Illinois pro-life movement will judiciously review Chicago’s Bubble Zone Law in relation to today’s ruling and will seek to bring Chicago’s Law in line with the Supreme Court’s ruling so that women can be empowered with access to all information on abortion alternatives.