Thursday, June 26, 2014
The ruling, authored by Chief Justice John Roberts and backed by the court's four liberal justices, held that the rules in Massachusetts "impose serious burdens on petitioners' speech." And by precluding demonstrations within 35 feet feet of a clinic entrance, Roberts wrote, the law risked "sweeping in innocent individuals and their speech." (The court's most conservative justices, while concurring in the decision's result, took a tougher line, arguing that buffer zones inherently favor the speech rights of clinic workers and abortion proponents.)
Pittsburgh also has an ordinance establishing buffer zones around clinic entrances -- though the zones have a radius of 15 feet, less than half the size of the zone in Massachusetts. Tim McNulty, spokesman for Mayor Bill Peduto, says that the solicitor's office will be reviewing the ruling for any potential impact on the city ordinance. (UPDATE: Late this afternoon, McNulty said that "while this ruling requires careful study, we think Pittsburgh's law is narrowly tailored enough to stand." He outlined reasons presented elsewhere in this piece.)
Whether the city's zone is affected by today's ruling "is a really good question," says Sue Frietsche, an attorney with the Women's Law Project. "I don't want to give a definitive answer about what's going to happen in Pittsburgh because I don't know yet. There's a lot to look at, but I wouldn't assume that our ordinance is going to fail the constitutional test, because it is very different."
Roberts' opinion, she says, "left in place the basic structure of the analysis" – in which government can limit the "time, place and manner" of protests, provided the restrictions are "narrowly tailored." Frietsche says that in this case, the court ruled that the Massachusetts law was too broad.
"The tricky part is figuring out what part of the law was most troubling to the justices," Frietsche says. "Was it because it had statewide application, instead of being a municipal ordinance? [Roberts' opinion notes that much of the dispute about clinic access centered on a single, heavily protested facility in Boston.] Because it had a 35-foot buffer instead of a 15-foot radius? There are a number of ways in which the Massachusetts law was broader."
Frietsche says that while public officials obviously can't leave unconstitutional laws on the books, "the decision doesn't provide the level of guidance" needed for the city to preemptively remove the buffer-zone restriction.
"There might be disagreement on that point," Frietsche adds. And indeed there is.
"What's clear from today's decision is that government cannot impose an outright ban on the close, personal communication that takes place between [anti-abortion] sidewalk counselors and patients entering abortion clinics," says Horatio Mihet, vice-president of Legal Affairs for Liberty Council, a religious-freedom group that opposes abortion rights. "There's nothing in today's decision that even hints that the Massachusetts law would have survived had it been only 15 feet. And to the extent that Pittsburgh imposes such a ban, it is on precarious ground after today's decision."
Indeed, the Roberts ruling is silent on whether a smaller zone would have passed constitutional muster. Instead, if focuses on other remedies like enforcing criminal statutes against trespass or disturbing the peace, or by having police on-hand to break up crowds if they threatened to obstruct the clinic. Nor did the ruling seem sympathetic to the argument that a buffer zone, which is clearly marked on the pavement outside the clinic, establishes a clear boundary that is easy for both sides to respect. "A painted line on the sidewalk is easy to enforce," wrote Roberts, "but the prime objective of the First Amendment is not efficiency."
Frietsche does point to another reason why city officials should consider keeping the buffer zones in place: Federal judges have already upheld Pittsburgh's buffer zone.
Prior to 2009, Pittsburgh had both a buffer zone around facility entrances and an 8-foot personal "bubble zone," which surrounded anyone within 100 feet of a clinic. An anti-choice protester objected to the rules, and in 2009, a federal district court held that while both types of zone were constitutional, Pittsburgh's ordinance went too far by incorporating them both. With the support of local women's health clinics, the city decided to retain the buffer zone.
"We thought it was better for everybody," says Frietsche. The clinics felt the buffer zone offered more effective protection, and less of a burden on free-speech rights. "You can have a conversation around a 15-foot buffer zone."
Ironically, Frietsche says that Pittsburgh might be facing less uncertainty if it had made the other choice. In a 2000 ruling, Hill v. Colorado, the Supreme Court had upheld the constitutionality of "bubble zones"; today's decision, which focuses on buffer zones, doesn't address the Hill limitations -- something Antonin Scalia decried in his separate opinion. While the Court previously asked for argument on whether Hill should be cast aside, he wrote, "one would not know that from the Court's opinion," which "avoids that question" entirely.
Given that, the city could potentially reverse the decision it made in 2009, and adopt its bubble-zone protections instead. Depending on future litigation and legal analysis, Frietsche says, "We might end up back there."
Certainly Planned Parenthood of Western Pennsylvania isn't giving up the fight. "We feel incredibly fortunate for the buffer zone," says Aleigha Cavalier, a spokesperson for the group. "It's a clear boundary that allows people to do what they want to do" – protesters and patients alike. The group will fight to keep it, she says, and pursue other protections, including the discarded bubble zone, if the buffer fails.
Mihet, perhaps not surprisingly, doubts that approach will work. "To the extent that bubble zone interferes with the right of a sidewalk counselor to have a close personal connection with a patient," he says, a bubble-zone is "on the same precarious ground." Government officials, he says, can punish abortion protesters who try to block entrances or otherwise violate the law. But "They can't burn the house to roast the pig."