The U.S. Supreme Court’s unanimous decision last week overturning Massachusetts’ 35-foot abortion clinic buffer zone law, which the court agreed unconstitutionally restricted the pro-life right to free speech, has implications far beyond similarly worded laws and ordinances around the country.
There are also what are called “floating bubble zone” laws, such as in Chicago, where pro-life advocates are restricted from entering an eight-foot imaginary bubble around a pregnant mother who is within 50 feet of an abortion clinic.
And there are home buffer zone free speech restrictions, such as in Winter Park, Florida, where in 2012 the city government enacted a 50-foot buffer zone ordinance banning any protests within 50 feet of a home after pro-life activists held signs in front of the home of Planned Parenthood of Greater Orlando’s CEO Jenna Tosh (pictured left).
Then there are court actions, such as was taken in Columbus, Ohio, in 2013, when a pro-life/anti-homosexual group was banned from protesting along a public road in front of a church where there are no sidewalks.
All of the aforementioned pro-life free speech restrictions are now getting second looks by the attorneys involved.
The Supreme Court opened the door to reanalyze such cases in its McCullen v Coakley decision, according to a constitutional expert on abortion law in an email to me. Here are the ways he believes the McCullen decision aids pro-life activists as well as puts more pressure on clinics:
- It was a unanimous decision, including the most pro-abortion justices.
- It favorably described pro-life sidewalk counselors.
- It proclaimed free speech rights on public sidewalks.
- It pushed back against writing and passing more “speech-free zones.”
- It may limit the scope of the Freedom of Access to Clinic Entrances Act for the first time since it was enacted. (The holding doesn’t affect FACE legally. However, it appears to reaffirm First Amendment rights on public sidewalks, which were thrown into doubt to some extent by the Hill v Colorado decision in 2000. So it seems to be a “buffer” against applications of FACE by the Obama administration.)
- It may encourage greater boldness of pro-lifers on the sidewalks and public ways by clarifying the law and clarifying their right to be there
A buffer zone by any other name…
Attorney Tom Brejcha of the Thomas More Society, the pro-life legal group that has taken the lead in opposing the Chicago ordinance, wrote me in an email he plans to take action by the end of summer in light of the McCullen decision:
Really, the “bubble” is from my perspective just a buffer zone within the buffer zone, since it creates a 50 foot buffer – very broad even by comparison with the overbroad Massachusetts buffer – within which a pro-lifer is forbidden from “approaching” anybody. As noted Supreme Court blogger Tom Goldstein was quoted, “All buffer zones are now presumptively unconstitutional.”
Winter of pro-life discontent
Likewise, one of the pro-life attorneys working on the Winter Park lawsuit wrote me in an email, “We intend to use the McCullen v Coakley case as it does provide helpful arguments.”
The Winter Park ordinance was half struck down by an 11th Circuit Court panel, but pro-lifers are asking the entire 11th Circuit to review the case and will go on to the Supreme Court, if need be.
[Top photo via Chicago Tribune]