Debating The News: Abortion Clinic Buffer Zones

The U.S. Supreme Court will hear a challenge Wednesday to the Massachusetts "buffer-zone" law that keeps protestors 35 feet away from abortion clinics.

WGBH News solicited arguments for and against the law, from Massachusetts Attorney General Martha Coakley and free speech and criminal defense attorney and writer Harvey Silverglate.

• Sarah Birnbaum reports: Supreme Court To Hear Challenge To Mass. Abortion Clinic 'Buffer Zone' Law

• BPR co-host Margery Eagan: 41 Years Later, Abortion Fight Still Not Over

The Buffer Zone Law
Should Stand

by Martha Coakley

AP Photo

In 2007, I testified before the legislature in favor of creating a fixed buffer zone around entrances and driveways of reproductive health clinics. I believed then, as I do now, that this zone appropriately balances the rights of protestors with the rights of those who deserve to freely access these facilities without any threat to their personal safety.

Those who come to these clinics come for a variety of reasons. They are men and women seeking birth control, treatment for sexually transmitted disease, and counseling. And they have a right to go there without being threatened or literally stopped in their tracks.

Our law is not unique. There are protest zones at political conventions. There are buffer zones when you go to vote. Even the Supreme Court has restrictions on protests around its plaza. And our highest court has three times upheld specific cases where zones were established around reproductive health clinics both by injunction or state statute.

The buffer zone is a content-neutral solution to a long-standing problem.

It is consistent with previous court rulings. We urge the court to consider the careful way Massachusetts implemented this law.

The Massachusetts law is in place for a reason, and it comes out of a long history of protests in front of reproductive health clinics beginning in the late 1980s which often involving hundreds of protestors. In 1994, a shooting killed two clinic employees and injured several others. The conduct continued through the next decade. It has included people standing in front of the doors to prevent access, putting hands in car windows as people drive in to park, and causing workers and patients to fear for their safety.

In response, the state tried to regulate the problem in careful incremental steps. There were civil court injunctions. The state imposed a floating buffer zone around those individuals accessing the clinic. Neither worked. The conduct continued. Police have called attempts to enforce the old law like being a referee at a basketball game. It was simply unenforceable and required ongoing police presence.

What has worked is the current fixed zone, which allows people to have their voices heard while also allowing safe access to the facility. With a 35-foot fixed zone, the rules are clear for everyone. Even with this zone in place, protestors acknowledge they have reached dozens of people with their message. It’s proof that their free speech rights have been protected. Just as importantly, so have the rights of those wanting access to reproductive health care.

The buffer zone is a content-neutral solution to a long-standing problem. It is consistent with previous court rulings. We urge the court to consider the careful way Massachusetts implemented this law. Massachusetts values and protects free speech. We have the struck right balance between access, speech and public safety. The buffer zone should stand.

Martha Coakley is the attorney general of Massachusetts.

Coakley photo by the AP.

Banner photo by the AP.

The Buffer Zone Law Is Unconstitutional

by Harvey Silverglate

Dan Kennedy Photo

The great First Amendment advocate Nat Hentoff captured the frustrating history of most free speech controversies in the insightful title of his classic 1992 tome "Free Speech for Me – But not for Thee; How the American Left and Right Relentlessly Censor Each Other." The pro-choice movement, having essentially established the constitutional right of American women, under the Constitution’s due process of law guarantee, to terminate pre-viable pregnancies, have in Massachusetts turned against the exercise of First and Fourteenth Amendment free speech rights by their opponents. Who can explain the aggravating tendency of some who win an important constitutional right to then turn around and seek to deny another, equally important right to their opponents?

Oral argument will be heard before the Supreme Court on January 15 in McCullen v. Coakley. The question before the Court is the constitutionality of the 2007 Massachusetts statute prohibiting demonstrators from entering or remaining within a 35-foot perimeter of a reproductive health care facility (read: abortion clinic). Violation is punishable by fines and imprisonment. In practice this law selectively prohibits anti-abortion advocates from demonstrating in the very place it would be most relevant for them to do so. Ever since a woman’s right to obtain an abortion became a fact of legal life in the Supreme Court’s pivotal – and ever-controversial – Roe v. Wade (1973) decision, abortion opponents have tried to limit the number of women seeking the procedure. A favorite, and sometimes effective, tactic is for abortion opponents to demonstrate outside the entrances of abortion clinics in an effort to talk patients into turning around and deciding to have their babies.

The McCullen v. Coakley case is complex and can provide lawyers, and advocates on either side, plenty of opportunity for argumentation, often verging into obfuscation. But the core is simple. The state legislature and federal courts in Massachusetts have determined that one particular brand of speech — speech seeking to convince women not to have abortions — should be subject to limitations on the speaker’s ability to effectively deliver his or her message.

There can be no doubt that lack of the demonstrator’s proximity to the patient dilutes the effectiveness of the message. There is likewise no doubt that some, likely most, perhaps even all of the patients, would prefer not to hear the message at all. But if First Amendment cases were decided on the basis of the intended listener’s preference that the speaker not be given an effective platform, then the whole notion of free speech would be reduced to a mere chimera.

Massachusetts has long-standing criminal statutes that prohibit the harassment of a listener by a speaker, or the disturbance of the peace. Old criminal laws prohibit one person from obstructing another’s entering a building of her choice. More specifically, in 2000 Massachusetts made it a crime to “knowingly obstruct, detain, hinder, impede, or block another person’s entry to or exit from a reproductive health facility.” This statute offers about as much protection as is possible without depriving demonstrators from being able to communicate to their target audience.

I happen to strongly support a woman’s right to choose to terminate her pregnancy. I am very concerned about the constant spate of attacks to narrow this right to the point of virtually eliminating it. It is also clear to me that a woman’s choice can be protected without narrowing the First Amendment so radically that someday those who currently seek to limit the speech of anti-abortion activists will instead find their own speech on the chopping block. It is as true in constitutional law as it is in life generally — what goes around, comes around.

Harvey Silverglate is a free speech and criminal defense lawyer.

Silverglate photo by Dan Kennedy