It wouldn’t be hard to miss the yellow lines of paint that outline the 35-foot buffer zone outside the entrance of Boston’s Planned Parenthood clinic. Most pedestrians on its stretch of Commonwealth Avenue probably stroll through without noticing. Voices easily carry from its edge to the clinic’s door. And yet, for the clinic’s patients and its staff, the buffer zone offers a needed sense of protection.
The Supreme Court Wednesday heard arguments in a case challenging a 2007 Massachusetts law that carved away this small slice of sidewalk to allow better access to health care facilities that provide abortions. Antiabortion activists contend the state law violates their right to free speech.
In the case of First Amendment rights, judges and lawmakers should err on the side of overprotection — but only until they infringe on someone else’s rights. Patients approaching clinics, whether for an abortion or any other health service, have a right to health care, medical privacy, and public safety. In Massachusetts, buffer zones have proven to be one of the few means to preserve these liberties.
The high court has repeatedly held that the First Amendment doesn’t preclude constraints on the “time, place, and manner” of speech, including instances when protests would disrupt activities or block access to facilities. In 2000, the court upheld an 8-foot buffer zone that moves with individuals as they approach clinics. In that 6-to-3 decision, the majority ruled that in some situations, including at health care facilities, uninterested listeners have some right to be let alone. Other types of buffer zones are likewise tolerated. Just three years ago, justices said buffer zones were legal to protect people attending funerals. On Election Day, Massachusetts implements 150-foot buffer zones around the entrances to polling places. And the Supreme Court itself bans all demonstrations, picketing, and even vigils on its 250-foot plaza, redirecting crowds to an adjacent sidewalk.
Antiabortion protesters say the buffer zone prevents them from having quiet conversations with people approaching the clinics. But everyone approaches the clinic from outside the buffer zone, where there is no obstacle to quiet conversations. Rather, the protests that buffer zones are designed to contain are the loud, intimidating, and physical demonstrations that tend to surround abortion clinics just as often as, say, the Supreme Court. Violence is not a hypothetical threat for the state’s abortion providers: A 1994 shooting spree at two Brookline abortion clinics left two people dead and five others wounded. Even with the buffer zone, security at area facilities remains high.
Nonetheless, the buffer zones seem to have helped to ensure a measure of order around clinics, even in the midst of protests. Previous efforts to contain the demonstrations, such as arresting individual protesters for harassment, did little to discourage others from taking their place. Injunctions were similarly ineffective. In 2000, the state enacted a version of Colorado’s floating buffer zone, only to see the entrances of facilities routinely blocked, sometimes forcing patients to plow through a mass of protesters to get to appointments.
Deputy Solicitor General Ian Gershengorn, representing the Obama administration, told the justices last week that federal statues on obstruction were also inadequate because they required proof of intentional behavior, while often what had happened outside Massachusetts clinics in the past was as likely to be simple congestion that led to confrontation.
Historically, First Amendment rights have usually been protected until they infringe on someone else’s rights.
Yet Gershengorn’s stronger argument rested on the fact the court has never held that exercising one’s free speech rights entitles the speaker to choose precisely where to do it, as long as ample alternatives are available. At Boston’s Planned Parenthood, the walk between the edge of the painted buffer zone and the clinic’s entrance is less than 10 seconds long. Lead plaintiff Eleanor McCullen says she herself has counseled dozens of women against abortions since buffer zones were enacted; she simply conducts this counseling on the sidewalk outside of the buffer zone where education, pamphleting, and protests are allowed. For the women and men seeking health care at abortion clinics, 35 feet of quiet and safety is not too much to ask.