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Court protects free speech of pro-lifers

WASHINGTON (BP) — The U.S. Supreme Court has delivered a unanimous and encouraging victory for the free-speech rights of peaceful pro-life advocates outside abortion clinics.

The high court struck down Thursday (June 26) a Massachusetts law mandating a 35-foot buffer zone around abortion center entrances and driveways in which pro-life activity was barred. In their 9-0 decision, the justices ruled the 2007 law violated the First Amendment to the U.S. Constitution, thereby reversing a federal appeals court opinion.

The opinion came on what is apparently the Supreme Court’s next-to-last day to issue opinions in this term. The justices are scheduled to release their final decisions June 30, when it is expected to announce its much-anticipated ruling in Hobby Lobby’s challenge of the Obama administration’s abortion/contraception mandate. That regulation requires employers to provide for their workers drugs and devices that potentially can cause abortions.

In the court’s opinion June 26, Chief Justice John Roberts said Massachusetts took “the extreme step of closing a substantial portion of a traditional public forum to all speakers” in enacting the buffer zones. The law — which was a wide ban on entrance into the zones with exceptions for specified groups, such as abortion clinic employees — “imposed serious burdens” on the speech of pro-lifers, he wrote.

For pro-life leaders, the unanimous ruling signaled that even justices who support abortion rights agree the free speech of sidewalk counselors and others seeking to help women in crisis pregnancies is constitutionally protected. It also appears to thwart ideas other states might entertain of instituting clinic buffer zones like those that resulted from the Massachusetts law.

Russell D. Moore, president of the Southern Baptist Ethics & Religious Liberty Commission (ERLC), described the ruling as “a good decision,” adding he was “cheered that it was a unanimous decision.”

“I’m thankful for the Supreme Court doing the right thing, recognizing freedom of speech and freedom of dissent,” Moore said in a written statement. “Those of us who are pro-life have constitutional guarantees embedded in the First Amendment, along with everyone else.”

Mark Rienzi — who argued in January before the justices on behalf of Eleanor McCullen, a grandmother who does sidewalk counseling in Boston — said the court’s opinion “has affirmed a critical freedom that has been an essential part of American life since the nation’s founding.”

“Americans have the freedom to talk to whomever they please on public sidewalks,” Rienzi, who is allied with the Alliance Defending Freedom, said in a written release. “That includes peaceful pro-lifers like Eleanor McCullen, who just wants to offer information and help to women who would like it.”

Shawn Carney, campaign director of 40 Days for Life, said the decision should encourage his organization’s efforts in Massachusetts. Its campaigns focus on peaceful prayer vigils outside abortion facilities and have resulted in reports of nearly 9,000 unborn children being spared from abortion and about 100 clinic workers leaving their jobs.

The risk produced by the Massachusetts law “has not only reduced the number of campaigns in Massachusetts but also reduced the number of volunteers participating at the locations where vigils were held,” Carney said in a written statement.

“We are hopeful that the chilling effect this law has had — not only in Massachusetts but also in other areas where such legislation has been proposed — will quickly begin to thaw in the wake of” the decision, he said.

Meanwhile, abortion rights advocates decried the Supreme Court’s opinion.

The National Abortion Federation called it “an incredibly disappointing ruling.”

Martha Coakley, attorney general of Massachusetts, said, “We are not going to give up our fight to make sure women have safe access to reproductive health care.” Coakley said she would work with the governor and legislature “to explore additional legislative tools that also meet the court’s requirements.

The high court refused to go as far in its opinion as pro-life advocates desired. The justices failed to reverse their 2000 opinion upholding a Colorado law that established a 100-foot zone around abortion clinic entrances. Inside that zone, a pro-lifer needs permission in order to get within eight feet of a person to counsel or distribute a handout.

The ERLC joined in a brief by the Christian Legal Society that not only urged the Supreme Court to strike down the Massachusetts law but rescind its 2000 ruling.

The Supreme Court also rejected in its opinion the assertion by some justices the law was “viewpoint based.” Associate Justice Antonin Scalia agreed with the court’s judgment but disagreed sharply with its reasoning in refusing to go further in its decision.

“Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents,” wrote Scalia, who was joined by Associate Justices Anthony Kennedy and Clarence Thomas in his concurring opinion. “There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.”

The law is “unconstitutional root and branch and cannot be saved,” Scalia said.

Associate Justice Samuel Alito wrote a concurring opinion also disagreeing with part of the court’s reasoning.

For the court, however, Roberts said the buffer zones serve “legitimate interests” by Massachusetts in preserving public safety and access to abortion facilities. Massachusetts, which instituted a type of abortion clinic buffer zone that is unique among the states, could have attempted other means to promote its interests, the chief justice wrote.

“[T]he Commonwealth has too readily forgone options that could serve its interests just as well, without substantially burdening the kind of speech in which petitioners wish to engage,” Roberts wrote.

“In short, the Commonwealth has not shown that it seriously undertook to address the problem with less intrusive tools readily available to it,” he said. “Nor has it shown that it considered different methods that other jurisdictions have found effective.”

The Obama administration’s Justice Department sided with Massachusetts before the Supreme Court in defense of the buffer zones.

The court’s opinion came in McCullen v. Coakley.
Tom Strode is the Washington bureau chief for Baptist Press. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress) and in your email (baptistpress.com/SubscribeBP.asp).