Press "Enter" to skip to content

Supreme Court Nixes Abortion Clinic Buffer Zones; What About Funerals? Conventions?

The U.S. Supreme Court ruled in McCullen v. Coakley yesterday that a Massachusetts law prohibiting free-speech activities within 35 feet of the entrance or driveway of an abortion clinic violates the First Amendment.

The buffer zones serve the Commonwealth’s legitimate inter­ests in maintaining public safety on streets and sidewalks and in preserving access to adjacent reproductive healthcare facilities. See Schenck v. Pro-Choice Network of Western N. Y., 519 U. S. 357, 376. At the same time, however, they impose serious burdens on petition­ers’ speech, depriving them of their two primary methods of com­municating with arriving patients: close, personal conversations and distribution of literature. Those forms of expression have historically been closely associated with the transmission of ideas. While the Act may allow petitioners to “protest” outside the buffer zones, petition­ers are not protestors; they seek not merely to express their opposi­tion to abortion, but to engage in personal, caring, consensual conversations with women about various alternatives. It is thus no answer to say that petitioners can still be seen and heard by women within the buffer zones. If all that the women can see and hear are vocifer­ous opponents of abortion, then the buffer zones have effectively sti­fled petitioners’ message [emphasis mine; Chief Justice John Roberts, McCullen v. Coakley, 2014.06.26].

Great. Awesome. From this ruling, we may logically and legally conclude that...

  1. South Dakota's ban on free speech within 1,000 feet of funerals is unconstitutional... as long as the Westboro Baptist Church can restyle its followers as petitioners, not protestors, and gear down from shouting to simply handing out pamphlets and seek to engage in personal, caring, consensual conversations about how God hates fags and killed your son in Iraq because of gay marriage.
  2. Free speech zones outside political conventions and Presidential appearances are unconstitutional. I'm a petitioner, and laws do not trump my First Amendment right to approach the President, nominees for President, political party members, and anyone else attending such events and seek a personal, caring, consensual conversation.
  3. Peddling (petitioning for?) smut at an LGBT Pride Festival within 35 feet of children is perfectly constitutional. As long as smut peddlers aren't blocking the flow of traffic and are speaking in personal, caring tones, they're safe under the First Amendment. Wait... I already knew that... offensive, but constitutional.

I find the notion that the Supreme Court is covering for anti-abortion coercers bothersome. But I can't impugn their First Amendment logic. I will only ask that they extend that logic across the board... and that the beneficiaries of that First Amendment protection respect the civil boundaries the Court assumes petitioners will observe.


  1. Eve Fisher 2014.06.27

    Thanks, Jerry. I was just about to point that out. Why should SCOTUS be beyond "personal, caring, consensual conversations"?

  2. mike from iowa 2014.06.27

    Should have asked the justices if they prefer some anti-abortion nut shooting them point blank instead of from 35 feet away. Might I suggest Mass. move the buffer zone to thirty four feet,eleven and seven eighths inches and try again. Protestors don't speak civilly,they use bullhorns and foul language and intimidation which is not peaceful free speech. Roberts is so out of touch. This is the guy who decided racism doesn't exist in elections anymore.

  3. mike from iowa 2014.06.27

    I can hear my congressweasel "cantaloupe calves"King going after Cory's headline on Fake Noise Channel. See,damn liberal saying they can't have funerals or conventions because of the Soopreme Court decision. Always trying to stir up their base with baseless charges. At least we wingnuts come right out and lie about our opponents,not like libs do.

  4. Jerry 2014.06.27

    We are a nation of laws as that is what our founders had in mind when they put this thing together. They just didn't realize that there could be a court made up such zealots that our very foundation is cracking under its odious weight. There is only one way to defeat these folks and that is to simply outsmart them and let them string the noose around themselves. They did that with the gay marriage rulings and they will do that with this nonsense as well. They may be the Supreme Court but that does not make them smarter than the rest of us, after all, they are just lawyers.

    Sometimes life is funny.

  5. Joel R 2014.06.27


    Roberts isn't saying that the speech is okay because the challengers are "petitioners," not "protestors." His use of "petitioners" is just a label for the parties, i.e. the parties to the litigation that have petitioned for review of the Court of Appeals' decision. If you look at the caption at the top of the case you'll see that the people challenging the law are labeled petitioners.

    Whether you believe that the petitioners aren't intimidating people depends on the facts in each case, but I don't think the decision says you can just call yourself a petitioner and be safe.

  6. John 2014.06.27

    You take this court too far, they are not about to surrender THEIR free speech buffer for the unwashed, they are not about to reverse the judicial (invented, made up) doctrine that airports are not free speech areas, that political conventions have free speech zones, etc., etc.

  7. Douglas Wiken 2014.06.27

    Record the foul taunts of the anti-abortionists and play them on bullhorns from 90 feet away from the justices for their education. Give them a dose of the "close, personal conversation".

  8. bearcreekbat 2014.06.27

    Joel R is correct, Petitioners refers to the individuals who filed "Petition" for cert.

    I think you might be a little too hard on Roberts. The decision included 4 justices that joined his opinion and 2 justices (including the typical abortion rights swing vote, Kennedy) joining Scalia's concurrence, which was echoed by Alito.

    Those who joined Roberts have been hard core supporters of women's right to safe termination of pregnancy, including Justices Ruth Bader Ginsberg, Elana Kagan, and Sonya Sotomayer and Steven Breyer. Had Roberts decided to join the rathole that Scalia, Alito, Thomas and Kennedy had gone down, the opinion would have done incredibly worse damage to women that Roberts actual opinion.

    The main difference was that Roberts said the buffer restriction was not based on the content of the abortion protesters speech, which allowed a more deferential review under 1st amendment jurisprudence. Scalia, et al argued it was a content based restriction demanding so called "strict scrutiny." It is nearly impossible for any law to survive strict scrutiny examination. If Scalia had his way, virtually any and every law restricting or regulating abortion protesters would have been subject to attack under the 1st amendment strict scrutiny standard.

    Under Roberts' majority opinion, however, there is still plenty of room to legislate protections for women seeking this important health care, including using smaller buffer zones, and enacting severe criminal penalties for those who attempt to interfere with or disrupt abortion providers and their patients.

    I am not a big fan of Roberts, but it looks to me like we were extremely fortunate to have his opinion in this case as the majority opinion rather than Scalia's nasty theory.

  9. Roger Cornelius 2014.06.27

    Oddly, I always thought the buffer zone was for the protection of patients from physical violence not just taunts.

    Planned Parenthood Clinics are notorious for violence, all this does is give perps a shorter space to pursue the innocent.

    Free Speech apparently trumps a woman's right to safety and protection.

  10. Tim 2014.06.27

    Does this mean I can stand at the doors of the next republican convention and tell them how stupid they are as long as I am close and personal? Maybe I can try that at the next legislative session.

  11. Jerry 2014.06.27

    I think it does Tim. It should also mean that in places like banks and investment houses that Occupy were targeting are now open season as well. So protesters will get to see the whites of the eyes of the banksters and ask them the merits of their business. The doctors, the insurance people all those that were isolated before with buffer zones, are now just like you and I Tim. In fact, we should be able to take pictures of those that are causing the ruckus at the clinics and follow them to their places of employment to protest them or home as we can identify who they are. Should make for some interesting times.

    Of course, in the meantime, women are being denied their constitutional rights under Roe v Wade and also the Fourteenth Amendment, that of civil rights.

  12. 96 Tears 2014.06.28

    How does this not include polling places and the placement of signs and activists talking at you while you are trying to mark your ballot? It should apply even more so since the polling places are deemed public.

  13. caheidelberger Post author | 2014.06.28

    96, that's a problematic example. Is there any legal difference in the state's interest in preventing intimidation in the exercise of the right to vote in a public election and the state's interest in protecting coercion in the exercise of the right to seek medical treatment and counseling at a private facility?

  14. caheidelberger Post author | 2014.06.28

    Joel R, fair enough. I erred in reading the Court's use of the word "petitioner". But the Court errs in saying they are not protestors. They are protesting each woman's exercise of her right to seek medical treatment and counseling.

    Can I stand outside a pharmacy and ask men if they are going in to be Viagra? Can I tell them—quietly, personally, daringly—that they are making a mistake? And can I also have my phone in my hand, shooting video to document our conversation?

  15. 96 Tears 2014.06.28

    Let's shake that out a bit. I have a right to vote, and I have a right to free speech. If a young Republican goon follows me in the polling place to repeat again and again that my vote for Democrats is a vote for abortion and for that socialist dictator Obama, is he exercising his right to speech on issues which have great meaning to him?

    Is my access to the polls protected by the U.S. Constitution and is it being interfered by the well-dressed young goon expressing his deeply-felt principles? No harm, no foul as long as the young goon doesn't touch me or stand in my path to the polling booth?

    What is the constitutional protection involved by requiring no signs, buttons, campaign materials or advocacy speech inside the polling place and next to the polling clerks' table?

    What would prevent a group of skinheads from standing in the polling area of a polling place in Alabama as long as they don't block exits or come into physical contact with others? Or a pack of burly rednecks standing in the polling place for Rosebud Sioux voters, talking at voters to turn around and go home because they know their names and where they live?

    Clearly the objective of "petitioners" at abortion clinics is to intimidate the clients and staff at a Planned Parenthood clinic. How is their mission any different from the hypothetical well-dressed young goon, the group of Alabama skinheads or the burly rednecks? If the law gags their right to expression, how is that constitutionally protected if they are not physically stopping me from voting?

  16. mike from iowa 2014.06.28

    Hasn't it been patently obvious that certain red states want to restrict certain peoples right to vote and restrict women's access to Planned Parenthood and other clinics that provide reproductive/health services? Doesn't it seem like the Scotus is slowly setting back rights in both areas?

  17. Jerry 2014.06.28

    I guess there are a couple of demographics that could change the appearance of the Supreme Court in the near future. That would be the huge population of women for one. Guess what, women outnumber men and they vote! Now if women would vote for the good of themselves and other women, problems would nearly be solved. Add to that demographic another one, minority voters and suddenly, all of these problems would go away very quickly. Maybe even a parity with wages could be struck so that women get paid the same as men for the same job. Wow, that would bring a whole lot of women out of the sorry state of poverty many live in. We could start right here in the state of South Dakota as we have two ladies as the Democratic team for governor and lt. governor. What say you ladies, what say you?

  18. Joel R 2014.06.28


    I agree that the Court seems to be drawing a pretty fine distinction between protest and what petitioners in this case were doing. However, on the facts as the case was decided, the women challenging the law were not intimidating or harassing the women seeking treatment. I image there's room to argue whether that is actually true, but that's not for an appellate court to decide. If their conduct rises to obstruction, harassment, etc., other parts of the law still stand to provide protection from this behavior.

    To your hypotheticals, I think they would all be legal as long as you don't go too far, i.e as long as you don't harass or obstruct the person.

    96 Tears raises a good point about polling places. To its credit, the Court addressed this argument by saying that those laws were narrowly tailored to address the important government interests because a large police presence to enforce anti-harassment or voter intimidation laws could itself be intimidating to a large number of voters. I think this probably exposes the weakest part of the Court's opinion.

    By citing other examples of potentially less obtrusive means to achieve the Commonwealth's objectives, Roberts seems to be saying that the buffer zone isn't narrowly tailored because there are less restrictive means to achieve the goal. But that's the wrong test---no less restrictive means is the strict scrutiny standard the Court went out of its way to say it wouldn't apply.

    I apologize for getting a little wordy, but this is an interesting case.

  19. bearcreekbat 2014.06.28

    Joel, as I understand the distinction Roberts used, governmental regulations that encumber free speech based on the content of that speech are subject to strict scrutiny, and whether the regulation is upheld does not depend solely on whether the government's regulation uses the least restrictive means. Rather the government must first show a compelling governmental interest necessitating the regulation, and then follow up by establishing the regulation uses the least restrictive means.

    Where government regulations incidentally encumber free speech regardless of the content of the speech, there is no requirement to show a compelling governmental interest to justify the regulation, it is enough if there is a rational reason for the regulation. But there is still the requirement that the government use the least restrictive means to minimize the burden on that regulated speech.

    So you are right that the least restrictive means test applies in both cases, while the compelling governmental interest only applies when the speech is regulated based on the content of the speech.

    Roberts concluded that the buffer zone was not intended to address nor limit what could be said, in other words it was not intended to repress anti-abortion speech, hence it was not based on the content of the speech.

    Scalia, et al, however, argued that the buffer zone was intended to limit the anti-abortion message of protesters, hence it was based on the content of the speech, and he argued there was no claim of, nor showing of, the required compelling governmental interest, hence it mattered not whether there was a less restrictive means to regulate the speech.

    As a side note, some commentators see Scalia accusing Roberts of "making a deal" with the liberal justices to obtain a fake unanimous decision.

    The author comments, "In a remarkable statement, Scalia suggests that Roberts made a deal with the liberal justices, saying, “I prefer not to take part in the assembling of an apparent but specious unanimity.”"

  20. mike from iowa 2014.06.28

    I certainly agree that this ruling will embolden protestors to the point of physical confrontations,which will allow Breitbart's goons and James O'keefe the opportunity to pedal more doctored videos that they will claim prove their contentions about who commits violent acts at these demonstrations. I wouldn't mind at all if Scalia took his ball and went home,allowing Obama the chance to nominate another justice that the opposition will not confirm.

  21. mike from iowa 2014.06.28

    Joel R-the harassment and physical stuff won't be prevented by this decision or even any other laws,now that the buffer has been removed.Wasn't the buffer zone designed to prevent physical altercations? Women that use Planned Parenthood should be allowed to do their thing without fear of attacks,just like any other persons.

  22. Joel R 2014.06.28

    To clarify my earlier post:

    Roberts went out of his way to say that this was a content neutral regulation, so intermediate scrutiny would apply (as opposed to strict scrutiny). Therefore, the appropriate standard requires the law to (1) promote an important governmental interest and (2) be narrowly tailored to meet that interest. This test doesn't require that least restrictive means to be used to achieve the interest, only that there is "a close fit between the means and the ends." (Opinion at 19). The Court then goes on to clarify that to be narrowly tailored, the means "must not burden substantially more speech than is necessary" to achieve the interest. (at 19). The problem is, Roberts then goes on to cite other measures that Massachusetts could have enacted that would have been less intrusive or less restrictive (which sounds a lot like strict scrutiny, despite making it clear he was applying the "narrowly tailored" standard). In essence, it reads to me like a bait and switch, in which he says he's applying intermediate scrutiny, but then applies strict scrutiny anyway.

    Mike from Iowa, that's what the commonwealth argued. The Court seems to think that the police should just work harder. The laws are on the books, whether or not the resources are there to enforce them. I think that goes to the narrow tailoring issue, and Massachusetts was in a better place to answer that question than the Court, in my opinion. Hopefully the authorities document other methods they try and how it works from now on so they can make a better case for similar law in the future.

  23. bearcreekbat 2014.06.29

    Joel, thanks for the clarification. I think I now see your point. What reason do you think Roberts would have to do the bait and switch instead of simply accepting either the proposed opinions of either Scalia or Alito? There seem to be enough 5-4 decisions that seeking a faux unanimous decision would be rather pointless.

  24. mike from iowa 2014.06.29

    Thanks,Joel. I'm not a lawyer and haven't seen the whole decision,besides all that legal non-sense makes my ears and eyes bleed.

  25. mike from iowa 2014.06.30

    Should have said reproductive healthcare clinics,not rights. Scalia's wife is a sidewalk counselor against abortion. Who knew?

  26. Jerry 2014.06.30

    The Court just came in with the Hobby Lobby case as well. The war on women continues unabated. I guess it is up to the women to change the politics of this land as we men have totally screwed it up for them. Sorry. You can start by not buying things from those that take away your civil rights and that includes you men out there as well. "Today, the Supreme Court upheld Hobby Lobby’s alleged ‘Right’ to eliminate the civil Rights of their employees based on trumped-up religious grounds."

  27. JeniW 2014.06.30

    The owners of Hobby Lobby on the corporation or local level will not care, but my knowing that they will not be getting a profit from me is good enough for me.

  28. Jerry 2014.06.30

    Good for you JeniW, good for you. Why do others support such a hateful corporation as this? It is clear that while they make their billions off sales to women, they hate you.

Comments are closed.