Pro-lifers win Supreme Court buffer zone case

Free Speech | Justices unanimously strike down a Massachusetts law creating bubbles of ‘protection’ around abortion centers
by Emily Belz
Posted 6/26/14, 12:55 pm

WASHINGTON—The U.S. Supreme Court spoke plainly and unanimously in striking down a Massachusetts law placing a 35-foot buffer zone around abortion centers: The law “violates the First Amendment.” The zone excluded anyone but abortion center employees and clients.

Chief Justice John Roberts, writing the decision for the court, refused to describe buffer zones in general as unconstitutional, leaving an earlier Supreme Court decision upholding buffer zones in place for now. Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito wrote concurring opinions arguing that buffer zones should be declared unconstitutional altogether.

Even in the January arguments, the lawyer for the pro-life counselor challenging the law did not ask the court to overturn its own precedent—but he probably hoped they would anyway.

Roberts kept the ruling limited to the Massachusetts law but called into question any buffer zone laws that restrict access to public areas. He said public areas and sidewalks have special protection under the First Amendment.

“It is no accident that public streets and sidewalks have developed as venues for the exchange of ideas,” he wrote in the unanimous opinion. “Even today, they remain one of the few places where a speaker can be confident that he is not simply preaching to the choir. With respect to other means of communication, an individual confronted with an uncomfortable message can always turn the page, change the channel, or leave the website. Not so on public streets and sidewalks.”

The opinion said the Massachusetts law, passed in 2007, burdened pro-life counselors’ speech because they did not want to yell at the women they were trying to counsel. And at such a distance from the centers, counselors could not distinguish passersby from those heading to the center. At one center, women seeking abortions could park within the buffer zone, and never encounter the counselors. The court suggested a number of “less restrictive alternatives” Massachusetts could adopt to ensure safe access to abortion centers while preserving free speech, like passing a law along the lines of an existing federal statute that forbids obstruction of abortion centers. Roberts tried to clarify that the court was not giving constitutional approval to the suggested alternatives.

Though the ruling was unanimous in striking the law, Scalia wrote a concurrence that sounded a lot like a dissent, saying Roberts’ reasoning was alternately “feeble” and “fanciful,” and the majority “specious.”

“Today’s opinion carries forward this court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents,” he wrote, in a concurrence that Thomas and Kennedy joined. “This is an opinion that has something for everyone, and the more significant portion continues the onward march of abortion-speech-only jurisprudence.”

Scalia is referring to a large section of Roberts’ opinion where the chief justice argues the buffer zone law is “content-neutral”—not targeting a certain group’s speech—and therefore is not subject to strict scrutiny, the toughest legal standard. If a buffer zone law were subject to strict scrutiny, all buffer zone laws likely would fall as unconstitutional. Roberts’ opinion dodged that broader ruling.

“Every objective indication shows that the provision’s primary purpose is to restrict speech that opposes abortion,” Scalia said.

The opinion leaves murky the status of other buffer zone laws. A case is pending in Wisconsin on the issue, and New Hampshire recently passed a 25-foot buffer zone law. What the unanimous court made clear Thursday is that such laws cannot restrict access to public streets and sidewalks. 

Rejoicing in the right to exist

WASHINGTON—The sun blazed down on Mark Roepke Thursday as he stood among the crowd in front of the U.S. Supreme Court. He and several pro-life groups were waiting for the court to release its decision in McCullen v. Coakley, a case about pro-life counselors being forced to speak outside a 35-foot buffer zone to pregnant women entering abortion centers.

After sweating outside for five hours the day before in a navy shirt, Roepke wore a cooler outfit—a white polo and khaki pants. But beneath the right side of his khakis is an artificial leg.

Roepke was born without a leg to a 14-year-old mother. She let a loving family with three other adopted children take him in shortly before the decision in Roe v. Wade, the case that legalized abortionin 1973.

“Had I come along a couple of years later, I might not have existed,” he said.

That’s why Roepke helps pro-life groups organize protests and counseling sessions—for him, life is a personal issue.

On Thursday as the Supreme Court handed out its verdict on the buffer zone case, Roepke rushed around outside the white-columned building to help pro-life groups set up microphones. As a Christian, he hoped God would intervene to protect both free speech and unborn life.

The court released a unanimous ruling in favor of the pro-life counselors—Chief Justice John Roberts wrote in his majority opinion that buffer zones that encompass public property are unconstitutional.

Roepke looks back fondly on his life—visiting the doctor’s office as a kid to fix or replace his artificial leg, getting his own subscription to Newsweek by age 9, working on campaigns in his home state of Iowa, and later getting jobs in politics and logistics in the Washington, D.C., area.

When Roepke grew older, he met his biological mother. She had prayed for him every day after giving him up for adoption. His maternal grandparents also remembered him. When he visited their house for the first time, he saw picture frames for each of their grandchildren. The first one was empty, for him.

Outside the Supreme Court on Thursday, Roepke smiled as he watched pro-life speakers celebrate. He knew from experience that the ruling would encourage counselors speak to women with greater confidence. Whenever he helped sidewalk counselors in previous years, they were always nervous about crossing an ambiguous buffer zone. While they didn’t want to break the law, abortion center rules differed from state to state.

“I think the court did the right thing,” he said. “Those sidewalk counselors will be much more effective.”

Roepke will return to the steps of the Supreme Court on Monday to await the court’s decision in the Hobby Lobby case, in which the Supreme Court will rule on whether Obamacare can require a Christian-owned business to include abortifacient drugs in health insurance policies. It is another pro-life case close to Roepke’s heart.

“Love me or hate me, I have a right to exist,” he said.

Emily Belz

Emily is a senior reporter for WORLD Magazine based in New York City. Follow Emily on Twitter @emlybelz.

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