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Abortion protest buffer zone struck down

NASHVILLE (BP) — The Supreme Court on Thursday (June 26) unanimously struck down a Massachusetts law which prohibited anti-abortion protests on public sidewalks within 35 feet of an abortion clinic or hospital.

According to the Court’s ruling in McCullen v. Coakley, the 35-foot “buffer zone” became law in 2007 without evidence abortion protesters had impeded access to abortion clinics and with the particular purpose of silencing the political, religious or moral viewpoint of those who oppose abortion.

Chief Justice John Roberts, who authored the Court’s opinion, wrote Massachusetts had violated the First Amendment by “the extreme step of closing a substantial portion of a traditional public forum to all speakers. It has done so without seriously addressing the problem through alternatives that leave the forum open for its time-honored purposes.”

Russell D. Moore, president of the Southern Baptist Convention’s Ethics & Religious Commission said he was thankful the Court made the right decision, “recognizing freedom of speech and freedom of dissent.”

“Those of us who are pro-life have constitutional guarantees embedded in the First Amendment, along with everyone else,” Moore said. “This was a good decision, and I am cheered that it was a unanimous decision.”

Massachusetts amended its Reproductive Health Care Facilities Act in 2007 to criminalize the protests near a “public way or sidewalk,” but the act exempted multiple classes of citizens, including employees or agents of the facility “acting within the scope of their employment.” They were allowed to express opinions within the buffer zone, such as telling potential patients to ignore the protesters.

Abortion protestors sued, claiming violations of the First and Fourteenth Amendments. Eleanor McCullen, who filed the case, saw the challenge to the law dismissed by the District Court and the First Circuit Court of Appeals. When the case reached the Supreme Court, the Commonwealth of Massachusetts argued the “frenetic activity” caused by abortion protesters threatened public safety.

The Court, even while acknowledging the need for public order, rejected that notion citing the few arrests over the years since the law has been in effect. Roberts also noted the non-confrontational nature of distributing anti-abortion literature.

The Court ruled constitutional protections of speech could not be extended to some citizens and not others who, in this case, conducted “side-walk counseling” in an effort to change women’s opinions on abortion before a procedure.

Justices Ruth Bader Ginsberg, Stephen Breyer, Elena Kagan and Sonia Sotomayor joined Roberts in his opinion. Justices Samuel Alito, Anthony M. Kennedy, Clarence Thomas and Antonin Scalia filed concurring opinions.

In his concurring opinion, Justice Scalia wrote “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. The provision is thus unconstitutional root and branch and cannot be saved, as the majority suggests, by limiting its application to the single facility that has experienced the safety and access problems to which it is quite obviously not addressed.”
Gregory Tomlin is a writer based in Fort Worth, Texas. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress) and in your email (baptistpress.com/SubscribeBP.asp).

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  • Gregory Tomlin