The state of Massachusetts must pay the attorneys for plaintiffs in its buffer zone case $1.24 million, under terms of a settlement agreement. This has implications for New Hampshire’s buffer zone law, modeled on the Massachusetts law struck down in June by the U.S. Supreme Court.
Will New Hampshire officials have to hit up the taxpayers for a similar settlement, or will they do the sensible thing and drop the case? Will the New Hampshire House and Senate make that decision for us by repealing the buffer zone law?
A reliable source has given me the details of the settlement agreement, which was approved by the U.S. District Court for the District of Massachusetts on December 15, 2014. The State of Massachusetts has 90 days to make the payments totaling $1.24 million.
Eleanor McCullen and six other plaintiffs filed suit in 2008 challenging the constitutionality of Massachusetts’ buffer zone law on First Amendment grounds. In June 2014, the U.S. Supreme Court agreed that a law restricting First Amendment rights outside abortion facilities could not be upheld before the state first enforced less drastic remedies. This parallels the New Hampshire law, which was signed by Governor Maggie Hassan after the Supreme Court ruled in the McCullen case. Operators of New Hampshire abortion facilities were unable to produce any recent police records about peaceful pro-life witnesses violating any law by praying outside facilities.
Seven Massachusetts plaintiffs prevailed, and now Massachusetts reportedly owes their attorneys more than a million dollars. New Hampshire’s law is being challenged by seven plaintiffs, too. How much will our state owe their attorneys before giving up on the law?
The New Hampshire case, Reddy v. Foster, has been in a strange place ever since Sister Mary Rose Reddy and her fellow plaintiffs brought suit. A federal district court judge issued a temporary restraining order against enforcement of the law. Attorney General Joseph Foster, who is supposed to defend the law, agreed not to enforce it for now. Abortion providers agreed not to put up “buffer zone” signs at their facilities. The state holds that since the law isn’t being enforced, the plaintiffs have no case. The judge has yet to rule on that issue.
Perhaps the judge is waiting for January, when the legislature will have a buffer zone repeal bill to consider, filed by Rep. Kathy Souza (R-Manchester). Once the law is repealed, the case will go away.
Instead of being strictly a “social” issue, the buffer zone law is now a fiscal concern. Let’s see how many New Hampshire legislators want to pay – or rather, make YOU pay – to keep the law in place.
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.
Two particular items in the news feed this morning warrant attention, no matter where you are post-Roe.
Drive-through abortions losing public support
Among the abortion regulations gaining traction in various states is a 24-hour waiting period between the time a woman gets medical counseling for an abortion and the time the abortion is induced.
I heard operators of three of New Hampshire’s freestanding abortion facilities testify last year that by the time a woman arrives at an abortion facility – oops, a “full-spectrum reproductive health facility” – she already knows what she wants. Ergo, why waste time on barriers like finding out about who’s going to do the procedure, complication rates, and fetal development – not to mention pregnancy support options available in the community?
I call a one-stop pregnancy confirmation, counseling, and abortion process a drive-through abortion. Great for abortion facility revenue, lousy for women’s health. Evidently, I’m not the only one coming around to that view.
A recent Rasmussen poll of 1000 likely voters found that 49% favored some kind of waiting period before an abortion. 39% were opposed, while 11% were undecided. Rasmussen reports that support for a waiting period is at its highest level in two years.
Roe supporter criticizes “buffer zones” as case comes to Supreme Court
In today’s Wall Street Journal, a self-described supporter of Roe v. Wade strongly encourages the U.S. Supreme Court to strike down Massachusetts’s 35-foot “buffer” against peaceful pro-life witness outside abortion facilities. Read Floyd Abrams’s “Abortion Rights as a Free-Speech Flashpoint.”
On January 15, the Court will hear oral arguments in McCullen v. Coakley, the challenge to the buffer zone. (Note that the Massachusetts attorney general defending the law, Martha Coakley, has run unsuccessfully for U.S. Senate and may yet have her eye on a federal-level office.) In his article, Abrams draws a distinction between laws against physical obstruction and intimidation of people entering an abortion facility and laws that ban all peaceful pro-life advocacy outside those facilities. He says that the former are “narrowly drafted and do not raise any plausible First Amendment objections,” while the latter are an example of “overbreadth.”
His remarks on how the views of the ACLU have changed regarding free speech in this context are interesting, and enormously revealing of the policy priorities of the group. “The old ACLU got it right,” says Abrams.
New Hampshire legislators will consider a buffer zone bill during the session that begins this week. That’s premature at best, with the Massachusetts case still pending.
The U.S. Supreme Court is back in session, and among the cases it will decide by next summer is one from Massachusetts challenging that state’s 35-foot no-protest zone around abortion facilities [McCullen v. Coakley]. The plaintiffs are seven pro-lifers who regularly do sidewalk counseling outside abortion facilities in Boston, Worcester, and Springfield.
The pending case was a factor in the decision by the Concord, NH City Council not to follow up on a petition to impose a 35-foot zone around the Feminist Health Center. When that petition was in the news, I went to Concord to measure what a 35-foot zone would look like there (see Thirty-Five Feet in Theory and Practice). I still wonder if the Concord Chamber of Commerce realizes that a 35-foot “buffer” would put pro-lifers on its doorstep instead of the FHC’s. If the Supreme Court upholds the Massachusetts law, you can expect to see a buffer zone imposed by the city, if not by the state.
The challenged law applies to “reproductive health facilities” excluding hospitals. Violators are subject to fines and jail time, becoming more severe with repeat offenses. Mark L. Rienzi, attorney for the plaintiffs, told Boston.com, “The same rules have to apply to all speakers. The government cannot put peaceful pro-life speakers in jail, but give Planned Parenthood free rein on the same sidewalk.” It seems that employees of the abortion providers, who are not subject to the law, have been known to stand in front of the facilities and interact with clients in a manner to drown out the pro-lifers 35 feet away.
I saw a tweet the other day from Planned Parenthood of Northern New England, calling on supporters to show up in Portland to promote a “patient safety zone” there. That’s yet another euphemism for “First-Amendment-free zone.”
The Court last addressed no-protest zones in 2000 in the Hill v. Colorado case, when a 6-3 vote upheld a Colorado law establishing an 8-foot buffer. Five of those Justices are still on the Court, two of whom were in the Hill majority.
Late-term abortion case on appeal
In other Supreme Court news, Americans United for Life is reporting that Arizona officials are appealing a lower court decision striking down the state’s law limiting abortions after the fifth month of pregnancy. According to AUL, “Arizona’s defense relies directly on the Supreme Court’s 2007 decision in Gonzales v. Carhart, which upheld the federal partial birth abortion ban act. In that case, the Supreme Court expressed concern with late-term abortions and their impact on the unborn child and women’s health.”
The Court agreed to hear in its next session a case involving a Massachusetts buffer zone. In McCullen v. Coakley, pro-life advocates of free speech are challenging a ruling earlier this year by the First Circuit Court of Appeals upholding a 35-foot zone around Massachusetts abortion facilities. The Supreme Court will hear arguments in the case this fall.
Will Concord officials want to pursue a measure similar to one pending Supreme Court review? We’ll find out July 8 when the City Council has its next meeting. I plan to be there. [note, added 7/3/13: the agenda for the July meeting does not include the “buffer zone” petition.]
As The Susan B. Anthony List posted on its site in response to the Court’s announcement, “We shall see whether the Court agrees that free speech includes sidewalk counseling.”