By Brandon Bub
June 27, 2014
If you’re a Supreme Court watcher like me, then the month of June is highly anticipated, as the Court tends to save its juiciest opinions for the final bit of its term. June of 2014 definitely hasn’t disappointed. We’ve seen a lot of important decisions regarding constitutional and statutory interpretation in the past week or so, including ones on illegal searches and seizures, patent and copyright law, and presidential power. But recently, the court revisited the issue of abortion for the first time since 2007 in a nuanced decision that has already ignited controversy.
The case, McCullen v. Coakley, tested the constitutionality of a 2007 Massachusetts law making it illegal for speakers (other than those who might work at an abortion clinic) to “enter or remain on a public way or sidewalk” within 35 feet of an entrance, exit, or driveway of a “reproductive health care facility.”
The Massachusetts law was based on legal guidelines handed down by the Court from a decision in 2000 called Hill v. Colorado. In that case, Justice John Paul Stevens wrote for a 6-3 majority that a Colorado law making it illegal for a person within 100 feet of a “health care facility’s entrance” to approach within 8 feet of another person (without consent) to distribute “a leaflet or handbill to, display a sign to, or engage in oral protest, education, or counseling with that person.”
What a mouthful.
As you can probably tell from the quoted portions, one of the reasons the Colorado law was upheld was because it was couched in sufficiently vague terms. It protects against unsolicited speech within 100 feet of a “health care facility,” but the law was certainly crafted with abortion clinics in mind. However, Stevens in his majority opinion concluded that this law was not a regulation of speech, but rather a regulation of where speech can occur, which is not a novel legal rationale. Justice Hugo Black, one of the most ardent First Amendment advocates in his time, leaned on this notion that you have a right to speak where you have a right to be in the 1966 case Adderly v. Florida. Indeed, 1st Amendment case law is replete with examples of “time, place, and manner” restrictions on speech, though questions often remain about just how restrictive a law can be while still passing constitutional muster.
So it is hardly surprising that those same questions arose again with McCullen. The interesting thing here is that two of the pivotal voters from Hill, Rehnquist and O’Connor, are no longer on the Court today. Had their respective replacements, Roberts and Alito, voted with the other dissenters from Hill, it’s likely that decision would have been thrown out.
And what exactly was the result? At first glance, we have a unanimous decision: the Court did agree that the Massachusetts law went too far in regulating speech, but only four of the nine thought that Hill should have been overturned. The five justice majority, led by Chief Justice Roberts, agreed that the state could regulate speech outside of clinics to some extent, but that this particular law went too far and was not sufficiently “narrowly tailored” to protect First Amendment rights.
NARAL pro-choice Massachusetts started circulating an interesting image after this decision comparing the size of the speech “buffer zone” outside of one of the Massachusetts clinics with the size of the Supreme Court’s own protest-free zone in the plaza outside of its building. The interesting thing here is that the four justices who did not join Roberts’ opinion in this case (Scalia, Alito, Thomas, and Kennedy) would probably agree with the ostensible hypocrisy of this decision. For them, the problem with this law, as well as the one at hand in Hill, is that it promotes viewpoint discrimination: Basically, the law is premised upon the notion that, if someone is going to get an abortion, she has a right to not hear any potential anti-choice arguments, but can be subjected to encouragement for the decision once inside the clinic (Scalia and Alito say this in much more snarky terms in their dissents. Their arguments are short and worth reading). They would go back and overturn Hill as well because they don’t see why pro-life rhetoric ought to be less privileged than pro-choice counseling.
Indeed, Scalia’s assertion that the Massachusetts law was never “viewpoint neutral” in the first place has merit, but it also raises the question of how viewpoint neutral we want our laws to be in the first place. Because like any important constitutional case, this one involves two rights (speech versus privacy) that have been pitted against each other. And when it comes down to practical application, one person’s speech can become another person’s harassment pretty quickly. Wherever you stand on the abortion question, this case is sure to give you plenty to mull over.
Before I finish though, I offer a little more outside reading. Legal scholar Laurence Tribe wrote a defense of this decision from a pro-choice perspective in today’s New York Times. Moreover, Vox wrote an article yesterday on the recent surge in abortion-limiting laws across the country (it’s pretty clear they find this concerning, but numbers are numbers, and if you’re on the pro-life side, this might be worth celebrating).