A unanimous Supreme Court decision Thursday struck down a Massachusetts law setting up buffer zones restricting protesters at state abortion clinics, capping a rough stretch for President Obama and his legal team at the high court this week.
The Massachusetts case, in which all nine justices agreed the buffer zone as set up by the state was an unconstitutional restriction on First Amendment free speech rights, was the third of three cases as the court’s term winds down in which the Obama administration found itself on the losing end of a unanimous court decision. The administration also suffered rebukes in cases involving the president’s recess appointment powers and the ability of law enforcement officials to search the cellphones of suspects they detain.
The president may be bracing for yet another reversal Monday, when the high court concludes its term with another closely watched case involving the mandate to cover birth control services under the president’s national health care law, although court watchers say that decision is likely to show much sharper divisions. The president has lost more than a dozen unanimous Supreme Court rulings on federal executive power — something the president’s critics have been quick to note.
Sen. Ted Cruz, a Texas Republican who argued frequently before the Supreme Court before his election to the Senate, has kept an informal running tally of the administration’s shutouts, even with a liberal bloc of four justices and two justices appointed by Mr. Obama himself on the bench.
“Once again, the Supreme Court unanimously rejected the litigating position of the Obama administration, which opposed free speech rights in an amicus brief,” Mr. Cruz noted of the abortion buffer zone case. “The court rightly invalidated a Massachusetts law that suppressed peaceful, non-obstructive speech from public sidewalks near abortion clinics.”
The abortion case was closely watched by pro-life and pro-choice forces and could have immediate effects on other states and jurisdictions that have tried to limit the access of demonstrators to those visiting family planning clinics.
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Writing for the court Thursday in the case of McCullen v. Coakley, Chief Justice John G. Roberts Jr. said Massachusetts officials had a legitimate interest in public safety, but they mistakenly pursued those interests by “closing a substantial portion of a traditional public forum to all speakers.”
“The Commonwealth may not do that consistent with the First Amendment,” he wrote, adding that such buffer zones “burden substantially more speech than is necessary to further the government’s legitimate interests.”
The ruling strikes down a 2007 Massachusetts law that created clearly marked, 35-foot buffer zones outside abortion clinics. Only people with business at the clinics could speak within the zones; violators faced arrest and criminal charges.
As a result, pro-life sidewalk counselors such as Eleanor McCullen were forced to shout from a distance or stop a conversation once they reached a painted line on the pavement.
Massachusetts Attorney General Martha Coakley said lawmakers will quickly rewrite the law. “Our work begins again” to “protect everyone from harassment, threats and physical obstruction,” she said.
Ms. McCullen, a 77-year-old pro-life activist and sidewalk counselor, told The Catholic Free Press in Worcester, Mass., that she was “very elated” by the decision.
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“It restores my faith in the country” that the justices are recognizing First Amendment rights, she said.
Without the buffer zones, she said, she and other activists will try to have personal conversations to “offer help and love” to pregnant women at the clinics.
The ruling “is a victory for all citizens who value their First Amendment rights and for clinic-bound women who might need someone to talk to,” said Anne Fox, president of Massachusetts Citizens for Life.
Americans like Ms. McCullen “have the freedom to talk to whomever they please on public sidewalks,” said Mark Rienzi, lead counsel for the pro-life petitioners.
Although the Supreme Court ruling was unanimous, four justices disagreed with the majority on whether the law was neutral.
The buffer zone law allowed “blatant viewpoint discrimination,” Justice Samuel Anthony Alito Jr., wrote in a separate concurrence, noting that within the zones, clinic workers were free to promote abortion while those critical of the clinic and its work could be punished.
“Every objective indication shows that the provision’s primary purpose is to restrict speech that opposes abortion,” wrote Justice Antonin Scalia, whose concurring opinion was joined by Justices Anthony M. Kennedy and Clarence Thomas.
Moreover, Justice Scalia wrote, the majority didn’t answer a second question, which was whether an earlier ruling upholding another kind of buffer zone — Hill v. Colorado in 2000 — “should be cut back or cast aside.” “Hill should be overruled,” Justice Scalia concluded.
The Roberts ruling’s silence on Hill did not go unnoticed by pro-choice advocates.
Colorado’s law is safe because “it is settled law,” Rep. Diana DeGette, Colorado Democrat and co-chairwoman of the House Pro-Choice Caucus, said in a press call Thursday. Massachusetts, she said, could rewrite its law to be more like Colorado’s, which creates fixed 100-foot buffer zones, in which individuals have a floating 8-foot personal space that cannot be invaded without their permission.
Pro-choice leaders pledged to find ways to prevent women from being forced to “run a gauntlet” of harassing and threatening protesters.
“We will work with local law enforcement and elected officials to protect public safety,” said Martha Walz, president and chief executive of Planned Parenthood League of Massachusetts, whose clinics used the now-defunct buffer zones.
However, Eric Scheidler, executive director of the Pro-Life Action League, called the ruling “a great vindication of sidewalk counseling.”
Pro-life demonstrators at the Supreme Court on Thursday were elated with the unanimous ruling.
“It frees sidewalk counselors at abortion facilities to be able to offer compassionate and caring alternatives,” said Kristan Hawkins, president of Students for Life of America.
• Kristen East contributed to this report.
• Cheryl Wetzstein can be reached at cwetzstein@washingtontimes.com.
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