By: Sean Maguire, Liberty Center for Law & Policy
Pro-Life colleagues and friends are quickly applauding the unanimous decision from the United States Supreme Court in McCullen v. Coakley, which struck down the Massachusetts buffer zone law. The decision allows McCullen and other sidewalk counselors in Massachusetts to continue counseling women on the threshold of abortion clinics. The decision rightly concludes that this buffer zone law is unconstitutional.
Additionally, this decision has some great language in support of sidewalk counseling. Instead of disparaging sidewalk counselors, this decision clearly distinguishes them from “protestors.” The Chief Justice gives the work of sidewalk counselors an endorsement from the highest court in the land.
“Petitioners take a different tack” than “aggressive” protestors at abortion clinics, Justice Roberts wrote. “They attempt to engage women approaching the clinics in what they call 'sidewalk counseling,' which involves offering information about alternatives to abortion and help pursuing those options.”
This nice language about sidewalk counseling and the ultimate conclusion that this particular law is unconstitutional are great. There is something else in the decision, however, which should cause pro-life advocates great concern.
The Supreme Court has, for decades, been advancing a tradition of relaxing First Amendment standards when regulating speech around abortion clinics. See, e.g., Hill v. Colorado, 530 U.S. 703 (2000); Madsen v. Women's Health Center, Inc., 512 U.S. 753 (1994). So when the question of the buffer zone law in Massachusetts was before the Supreme Court this year, many were anxious to see whether this tradition would be continued.
If a restriction is based on the message being spoken (if it is “content-based”) then it will be subject to strict scrutiny. Otherwise, for a content-neutral restriction, the government need only meet the lesser standard of a time, place, and manner restriction. The decisions of Hill and Madsen pushed for a jurisprudence that weighs restrictions on free speech around abortion clinics only by this lesser standard.
Here the Supreme Court answered the question of the constitutionality of this Act with a unanimous no. They all got it right when the said this Act was not “narrowly tailored,” which is required for time, place, and manner restrictions. However, the majority got it wrong when they answered the question of whether this law was content-neutral.
Why Was the Question of Content-Neutrality Addressed?
Justice Scalia argues that this should not have been addressed. “Inasmuch as Part IV [of the majority opinion] holds that the Act is unconstitutional because it does not survive the lesser level of scrutiny associated with content-neutral “time, pace, and manner” regulations, there is no principled reason for the majority to decide whether the statute is subject to strict scrutiny.”
Justice Roberts justifies taking up the question of content-neutrality in the opinion.
“[T]here is good reason to address content neutrality. In discussing whether the Act is narrowly tailored . . . we identify a number of less-restrictive alternative measures that the Massachusetts Legislature might have adopted. Some apply only at abortion clinics, which raises the question whether those provisions are content neutral. . . . While we need not (and do not) endorse any of these measures, it would be odd to consider them as possible alternatives if they were presumptively unconstitutional because they were content based and thus subject to strict scrutiny.”
It is odd, indeed, for a Supreme Court to gratuitously offer suggestions for how a Legislature could narrowly tailor a law specifically for abortion clinics.
The justices of the Supreme Court were split on the issue of content-neutrality. “One would have thought that the Court would avoid the issue by simply assuming without deciding the logically antecedent point,” Scalia says in his concurrence. (Scalia concurring). The Court doesn't avoid the issue. The majority takes it up and decides that this law restricting speech specifically in front of abortion clinics is not content-based.
Why Did the Court Conclude that This Law Was Content-Neutral?
“Every objective indication shows that the provision's primary purpose is to restrict speech that opposes abortion,” Scalia points out. The buffer zone law only burdened the speech in front of abortion clinics. It should have been clear to the Court that this was a content-based law. The majority ignored the objective indications and chose to believe the language of the statute and the arguments of those defending it, instead. The majority believed that this law was about fixing traffic problems, not suppressing pro-life speech. If the law was only about solving traffic problems, then why did it only apply to abortion clinics and not to every other venue with a traffic problem?
One objective indication the court ignored is the fact that there was not a traffic problem. The Court stated that traffic was “a problem shown to arise only once a week in one city at one clinic.” The statute targeted every abortion clinic in the commonwealth even though the Court saw there were only traffic problems at one.
“The Court uses this striking fact (a smoking gun, so to speak) as a basis for concluding that the law is insufficiently “tailored” to safety and access concerns (Part IV) rather than as a basis for concluding that it is not directed to those concerns at all, but to the suppression of antiabortion speech.” Scalia said.
Scalia goes on to give this analogy: “That is rather like invoking the eight missed human targets of a shooter who has killed one victim to prove, not that he is guilty of attempted mass murder, but that he has bad aim.”
The majority ignored all of the objective standards showing that this law was really about suppressing pro-life speech in front of abortion clinics. They believed that this was a content-neutral law because the law said so. The majority reasoned that the Massachusetts Act's “stated purpose is to 'increase forthwith public safety at reproductive health care facilities.'”
Rather than considering objective evidence that this statute disproportionately affects speech about abortion where there is no issue of safety, the Court accepted the unsubstantiated argument of the government. The Court ruled that the law is content-neutral because the government said so.
Why Does it Matter that the Court Said it was Content-Neutral?
The consequences of this wrong result will be that “jurisdictions across the country” can “restrict antiabortion speech without fear of rigorous constitutional review.” (Scalia concurring).
Ruling that these types of laws are not targeting pro-life speech (or are “content-neutral”) gives Massachusetts a second try to shoot down pro-life counseling efforts without having to face strict scrutiny.
More than just giving Massachusetts another attempt, the majority in this decision also gives them a few tips for taking aim. In the decision, which explains why this law was not “narrowly-tailored,” the court gratuitously advises the state on how to accomplish narrow tailoring.
The court advises that the Commonwealth of Massachusetts could limit sidewalk counseling efforts at all abortion clinics in Massachusetts by adopting a rule like the one in New York. The court suggests that Massachusetts consider passing a harassment ordinance, which would prevent the counselors from “follow[ing] or harass[ing] another person within 15 feet of the premises of a reproductive health care facility.” Pro-Life advocates should anticipate that this suggestion, and others like it, will be followed as soon as possible.
Speech restrictions around abortion clinics may now be promulgated by state legislatures without being subjected to strict scrutiny. This could really hamper pro-life activities, even though those rules will still have to adhere to the time, place, and manner standards.
Yes, pro-life advocates should be glad that McCullen and the other sidewalk counselors can resume their counseling work for the time being. They should also recognize that this majority decision has advanced the long tradition of giving special exemptions to speech regulations around abortion clinics. The Court has advanced a bad tradition which will be used to silence pro-life speech.
Rules about speaking while in front of abortion clinics can now be passed without surviving strict scrutiny. The results could be devastating for pro-life efforts everywhere.
This decision allows sidewalk counselors to save lives in the short term, but it is one that will have to be overcome in order to restore free speech in front of abortion clinics in the long term.