Citing free speech rights, the U.S. Supreme Court justices, in a unanimous decision, struck down a Massachusetts law that puts 35-foot buffer zones between abortion clinics and anti-abortion protestors, writing that the government’s ability to regulate speech on sidewalks is “very limited.”
In 2007, Massachusetts amended its Reproductive Health Care Facilities Act aimed at addressing clashes between abortion opponents and advocates of abortion rights outside of clinics.
The amended version of the Act makes it a crime to knowingly stand on a “public way or sidewalk” within 35 feet of an entrance or driveway to any “reproductive health care facility,” defined as “a place, other than within or upon the grounds of a hospital, where abortions are offered or performed.”
The opponents of the law, who attempt to engage women approaching Massachusetts abortion clinics in “side walk counseling,” which involves offering information about alternatives to abortion and help pursuing those options, claim that
the 35-foot buffer zones have considerably hampered their counseling efforts, according to the Supreme Court opinion.
“Their attempts to communicate with patients are further thwarted, they claim, by clinic “escorts,” who accompany arriving patitents through the buffer zones to the clinic entrances,” the court decision noted.
“Given the vital First Amendment interests at stake, it is not enough for Massachusetts simply to say that other approaches have not worked.” the Supreme Court opinion stated.
Adding, “Petitioners wish to converse with their fellow citizens about an important subject on the public streets and sidewalks—sites that have hosted discussions about the issues of the day throughout history. Respondents assert undeniably significant interests in maintaining public safety on those same streets and sidewalks, as well as in preserving access to adjacent healthcare facilities. But here the Commonwealth has pursued those interests 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. The Commonwealth (of Massachusetts) may not do that consistent with the First Amendment. ”
Justice Samuel Alito offered a hypothetical situation in his opinion.
“Or suppose that the issue is not abortion but the safety of a particular facility. Suppose that there was a recent report of a botched abortion at the clinic. A non-employee may not enter the buffer zone to warn about the clinic’s health record, but an employee may enter and tell prospective clients that the clinic is safe.”
Adding, “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.”