People who were dismayed by the circus-like protests around Planned Parenthood’s Boston clinic are understandably disappointed by the US Supreme Court’s unanimous rejection of the state’s 35-foot buffer zone for entrances to abortion clinics. But there is much in the court’s opinion to suggest that the state can craft alternative remedies. Significantly, the court affirmed Massachusetts’ right to curb protests outside of abortion clinics, insofar as they present a risk to public safety or commerce. This is a decision Massachusetts can live with. And the Legislature should move promptly to enact alternative means of safeguarding a woman’s right to make her health care decisions, including abortion, free of harassment.
The buffer zone itself was a targeted response to the unruly protests, and seemed to satisfy existing constitutional tests of free-speech restrictions, in that it regulated only the time, place, and manner in which protesters could state their opinions. But the court, in a majority opinion by Chief Justice John Roberts, argued that Massachusetts should have attempted less sweeping means of protecting clinics first. Its reasoning — shared by the court’s three women justices and Massachusetts’ own Stephen Breyer — was based on a deep respect for the First Amendment: States should limit free speech as little as possible. And there was some evidence that less-restrictive measures could have protected the area around the clinics. For instance, the court noted that Massachusetts applied the buffer zone to clinics in Worcester and Springfield that already had private walkways or driveways. By adding another 35 feet of restricted space, the buffer zone made it impossible for abortion opponents to hand out literature to anyone arriving by car. Alternatively, Massachusetts could have empowered police to disperse crowds of as few as three protesters within a buffer zone if they behaved in an unruly manner or impeded access.
No doubt, many people in Massachusetts are justifiably skeptical that such alternatives can work, especially if the police aren’t always on the scene. But the court left open the possibility of more restrictive rules if the less restrictive ones prove unworkable. Massachusetts enacted the buffer zone to prevent protests whose main purpose was to harass or impede women outside clinics; the court doesn’t argue with the state’s intention, only its means. Massachusetts should go back to the drawing board to figure out a way to provide the maximum protection for women, with the minimum disruption of the First Amendment rights of protesters.