Right decision, wrong reason (but let’s take it for now)

U.S. Supreme Court. Wikipedia Commons photo, public domain.
U.S. Supreme Court. Wikipedia Commons photo, public domain.

New Hampshire’s buffer zone law is based on a Massachusetts law that has just been ruled unconstitutional. So much for one sorry attempt at “bipartisanship.” It seems Democrats and Republicans are equally capable of dismissing the Bill of Rights.

In a unanimous decision, the U.S. Supreme Court has ruled the Massachusetts buffer zone law unconstitutional. A sweeping ruling? No. A good day? Definitely. A fatal blow to New Hampshire’s ill-conceived copycat law? We’ll see.

What does this mean for the New Hampshire law?

Could the legislature repeal the law? Sure. It wouldn’t need this decision to do it, though. Just file a repeal bill for next January.

Does this case automatically invalidate the New Hampshire law? No. However, anyone seeking an injunction against enforcement now has a great tool. Any enforcement that does take place – and remember, signs have to go up outside an abortion facility before the New Hampshire buffer zone law can be enforced – will be subject to legal challenge. How much money does the cash-strapped State of New Hampshire want to spend defending a law that is obviously constitutionally defective?

The Court remanded the Massachusetts case back to a lower court, which could uphold certain portions of the law. New Hampshire’s abortion partisans will undoubtedly watch closely, and will try to retain any portion of the law not explicitly rejected as unconstitutional.

What did the Court get right?

It recognized that the First Amendment is alive and well, even within 35 feet of abortion facilities. Public sidewalks, traditionally a public forum, can’t be treated as though they’re the private property of abortion providers. The affirmation was restrained (about which more below), but it was an affirmation nonetheless. From Chief Justice Roberts’s opinion:

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 may not do that consistent with the First Amendment.

Alternatives: now, there’s a thought. There was no attempt outside abortion facilities to enforce existing laws before the New Hampshire buffer zone was passed. A private entity – Planned Parenthood of Northern New England – testified that it had 60 complaints from clients about activities outside its Manchester facility. The Manchester police department wasn’t involved. No citations or arrests were made for disorderly conduct, trespassing, or even illegal parking in conjunction with pro-life activity outside abortion facilities.

The Court found that the Massachusetts law was not “narrowly-tailored.” New Hampshire’s law is, according to Governor Hassan. Given that the sponsors of the New Hampshire law looked to the Massachusetts law for guidance, I’m skeptical of the Governor’s claim. Justice Roberts again:

To meet the requirement of narrow tailoring, the government must demonstrate that alterna­tive measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier. A painted line on the sidewalk is easy to enforce, but the prime objective of the First Amendment is not efficiency. 

And one more poke in the eye to all the people who said a buffer zone was essential:

If Common­wealth officials can compile an extensive record of obstruc­tion and harassment to support their preferred legislation, we do not see why they cannot do the same to support injunctions and prosecutions against those who might deliberately flout the law. 

In other words, enforce your existing laws before stomping on the First Amendment.

How does the decision fall short?

The decision says that buffer zones are not about content-based speech, which would have required the State to meet a much higher standard before restricting speech.

Come on, you black-robed sages. Seriously? Chief Justice Roberts wrote that the Massachusetts law is not directed at speech opposing abortion, and therefore is not subject to “strict scrutiny.” It’s enforceable around abortion facilities, but it’s not about abortion-related speech, says Roberts. Let that sink in for awhile. Three Justices looked at the Chief’s finding and decided they had to respond.

Justices Scalia, Thomas and Kennedy said in effect “right decision, wrong reason.” Scalia wrote for all three of them in his usual brisk and blunt tone. He was highly critical of “abortion-speech jurisprudence,” a special class of free speech that in his judgment his colleagues seem to think abortion opponents deserve. “Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents.” By declining to impose the strict-scrutiny standard, writes Scalia,

…the majority [of the Court] can preserve the ability of jurisdictions across the country to restrict antiabortion speech without fear of rigorous constitutional review….Would the Court exempt from strict scru­tiny a law banning access to the streets and sidewalks surrounding the site of the Republican National Conven­tion? Or those used annually to commemorate the 1965 Selma-to-Montgomery civil rights marches? Or those outside the Internal Revenue Service? Surely not.

 

Scalia also took a look at the Planned Parenthood League of Massachusetts web site (as recently as two days ago) to check out the help-wanted ad for “clinic escorts.” He found that no threat to public safety was mentioned, and of course public safety is what buffer-zone advocates tout as one reason such laws are needed. Writing for Justices Thomas and Kennedy as well, Scalia suggests that public safety is being used to mask barriers to free speech.

The Web site for the Planned Parenthood League of Massachusetts (which operates the three abortion facilities where petitioners attempt to counsel women), urges readers to “Become a Clinic Escort Volunteer” in order to “provide a safe space for patients by escorting them through protestors to the health center.”…The dangers that the Web site attributes to “protestors” are related entirely to speech, not to safety or access. “Protestors,” it reports, “hold signs, try to speak to patients entering the building, and distribute literature that can be misleading.”… The “safe space” provided by escorts is protection from that speech. … I concur only in the judgment that the statute is unconstitutional under the First Amendment.

This ain’t over

The Massachusetts law will have to be re-drawn in order to pass constitutional muster. So will New Hampshire’s, it seems to me. It is not true, however, that the Supreme Court today struck down all abortion-facility buffer zones for good. There was no finding that trying to squelch pro-life witnesses is unconstitutional per se, only that doing so with a new law without first enforcing old ones is a no-no.

These things take time. The Massachusetts case began in 2008, if I’m not mistaken. Any chance for the Supreme Court to elevate buffer-zone laws to a strict-scrutiny standard is years away. Every case has to start somewhere, though. One state (or city) at a time, abortion advocates will try to silence pro-life witness. One arrest or citation at a time, pro-life witnesses can challenge the law. The Court will probably deny a hearing to several challenges before taking up abortion-related buffer zones again. An expanded ruling could be a decade away.

That’s today’s reminder that it matters who holds the Presidency and nominates Justices to the Court.

Spare a moment today to offer a prayer of thanksgiving for people like Eleanor McCullen, the plaintiff of record in the Massachusetts case, and the team of lawyers who helped her get to the Supreme Court. This was a battle worth fighting.

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