Meet the New Buffer Zone, Same as the Old Buffer Zone

By Roxeanne DeLuca:

In McCullen v. Coakley, the Supreme Court ruled that a 2007 Massachusetts statute that restricts speech outside of abortion clinics is unconstitutional.  (Opinion here.) In fact, it so ruled, unanimously. The only difference of opinion was whether the statute was content-neutral and subject to intermediate scrutiny, or if it was a content-based restriction on speech and subject to strict scrutiny.  Regardless of the standard of review, the statute was found to not be narrowly tailored, i.e. it did not use the least restrictive means necessary to accomplish the state’s goal of enabling pregnant women to access abortion clinics.

Undeterred by a nine-nothing smackdown, the progressives on Beacon Hill have filed a new buffer zone bill that they claim will meet constitutional muster. (State House News Service.) According to the bill’s proponents,

“The Supreme Court gave us a road map of what this bill should say and we are following that road map with very narrowly tailored new tools for the police and the attorney general,” said Marty Walz, the president and CEO of Planned Parenthood of Massachusetts.

Megan Amundson, executive director of the NARAL Pro-Choice Massachusetts, said in a statement, “It provides additional tools to ensure that all women can access health care free from harassment and intimidation.”

“This legislation carefully balances public safety and access with free speech rights. We urge the Legislature to quickly take up this bill and ensure that it passes before the end of the legislative session to protect safe access to clinics,” Amundson said.

With respect to Ms. Walz and Ms. Amundson, they could not be more wrong.  Let’s compare what the Supreme Court said and what the bill (SD2106) actually does.

In the opinion, pp 24-25, the Court writes,

The Commonwealth points to a substantial public safety risk created when protestors obstruct driveways leading to the clinics. See App. 18, 41, 51, 88–89, 99, 118–119. That is, however, an example of its failure to look to less intrusive means of addressing its concerns. Any such obstruction can readily be addressed through existing local ordinances. See, e.g., Worcester, Mass., Revised Ordinances of 2008, ch. 12, §25(b) (“No person shall stand, or place any obstruction of any kind, upon any street, sidewalk or crosswalk in such a manner as to obstruct a free passage for travelers thereon”); Boston, Mass., Municipal Code, ch. 16–41.2(d) (2013) (“No person shall solicit while walking on, standing on or going into any street or highway used for motor vehicle travel, or any area appurtenant thereto(including medians, shoulder areas, bicycle lanes, ramps and exit ramps)”).

All of the foregoing measures are, of course, in addition to available generic criminal statutes forbidding assault, breach of the peace, trespass, vandalism, and the like.

The response of Planned Parenthood and NARAL has been to craft a bill (SD 2106) that has onerous, vague regulations and draconian penalties.  The police are empowered to disperse any gathering (provided they record a few statements of fact); gatherings that are improperly dispersed have no remedy.  Despite that, a defendant who loses a case is liable civilly, criminally, and for the attorney’s fees of the Commonwealth of Massachusetts and/or any private party plaintiff.

The attorneys’ fees in the McCullen case are likely to be well in excess of a million dollars.  As any sidewalk counselor who challenges the new buffer zone bill in the court system would owe the Commonwealth a similar amount of money if she lost, the obvious goal of this part of the statute (i.e. the new Section 1) is to prevent Eleanor McCullen from getting it into her head that she can challenge the constitutionality of this law. I’m unclear as to where in the McCullen opinion the Roberts court said that blatant retaliation was acceptable, but perhaps Marty Walz  or Megan Amundson could point me to the relevant pages.

The law sounds good, if one does not read it too closely: it enables the police to disperse gatherings that substantially impede access to the clinic.  Aside from the fact that the dispersal will never be applied to a Planned Parenthood employee, the law does not require any sort of due process prior to the dispersal order and leaves no means for aggrieved sidewalk counselors to challenge an inappropriate dispersal order.  (For fun, the dispersal zone is a mere twenty-five feet away from the entrance.  One wonders why Walz didn’t just write a bill with a 34’11” buffer zone.) “Lack of due process” and “narrowly tailored” don’t usually go together.

Throughout the opinion, the Court held that the Petitioners wanted to counsel pregnant women, and that, while protests could be adequately carried out with a buffer zone, personal and caring communication could not.  (See slip opinion, pp 20-22.)  The new law fails to distinguish leafletting, handbilling, and one-on-one discussions from protests.  In fact, one-on-one discussions are arguably outlawed (or at least subjected to the whims of the police who enforce the law): the law applies to a “gathering,” which is defined as “2 or more individuals.” “[Two] or more individuals” can be a sidewalk counselor and a willing listener. Way to miss the point, Beacon Hill.

Lastly, what is not banned is often just as important as what is banned.  There is nothing in the statute that prevents Planned Parenthood employees from harassing or baiting pro-lifers, nor is there anything that would ensure that a wayward clinic employee cannot get sidewalk counselors “dispersed” merely by standing near them. The only logical people against whom the crime can apply are pro-lifers.