Media Guide: The Legal Challenge That Could Eliminate Anti-Violence Protections For Health Centers
Research ››› ››› MEAGAN HATCHER-MAYS
On January 15, the Supreme Court will hear oral arguments in McCullen v. Coakley, a case that could invalidate a Massachusetts statute that creates "buffer zones" around reproductive health centers to ensure the safety of patients and staff. Despite established legal precedent to the contrary, and a disturbing history of violence aimed at Planned Parenthood clinics, anti-choice protesters complain the law violates their First Amendment rights by pushing them back from the health centers' entrances.
Anti-Choice Violence Outside Of Women's Health Centers Has Long Been A National Problem
Anti-Defamation League: Anti-Abortion Violence Is A Form Of "Domestic Terrorism." These content-neutral buffer zones that protect against violence of any viewpoint were created because patients and doctors of health facilities that offer abortion services are at risk across the country. As explained by the ADL following a 2012 attack on a Wisconsin Planned Parenthood clinic:
The recent arrest in Green Bay, Wisconsin, of Francis Grady, 50, for allegedly setting off an incendiary device at a Planned Parenthood clinic serves to remind Americans of another form of domestic extremism: anti-abortion violence. Like environmental and animal rights violence, anti-abortion violence is a form of single-issue extremism. Typically, single-issue extremism emerges as an ultra-radical wing of a much broader social or political movement, a wing so agitated about its chosen cause that its adherents may come to believe that violence in the service of that cause is justified or even required.
The radical anti-abortion movement emerged in the 1980s; its violence peaked in the early 1990s with dozens of bombings, arsons, murders and attempted murders. The frequency of anti-abortion violence began to ebb in the mid-1990s, but never dissipated entirely. Anti-abortion violence has actually remained a consistent, if secondary, source of domestic terrorism and violence, manifesting itself most often in assaults and vandalism, with occasional arsons, bombings, drive-by shootings, and assassination attempts. As one anti-abortion extremist, while serving a prison sentence for anti-abortion arsons, put it in 2010: "Abortionists are killed because they are serial murderers of innocent children who must be stopped, and they will continue to be stopped." [Anti-Defamation League, 9/4/12]
A Massachusetts Planned Parenthood Clinic Was The Specific Target Of A Notorious Act Of Fatal Anti-Abortion Violence
Washington Post: The 1994 Brookline Murders "Capped A Decade Of Assaults On Abortion Clinics And Their Staffs." The Massachusetts law establishing buffer zones was a bipartisan response to a long and tragic string of violence aimed at these health centers, including the infamous shooting of two women at a Brookline clinic:
Despite his lawyers' attempts to prove him insane, a jury convicted [John] Salvi, 24, of all charges against him: two counts of first-degree murder and five counts of armed assault with intent to murder, all arising from his Dec. 30, 1994, attacks on the two clinics. He was taken quickly to state prison.
The attacks were the worst violence against abortion clinics in U.S. history and capped a decade of assaults on abortion clinics and their staffs across the country.
Cries of anguish were heard in court from the families of the victims -- Shannon Lowney, 25, and Lee Ann Nichols, 38. Their parents, brothers, sisters, fiances and friends wept, as they have many times during the trial.
Salvi shot the two women and wounded five other people during his attack on the clinics in the Boston suburb of Brookline. Witnesses testified during the trial that he had shouted, "This is what you get! You should pray the rosary!" as he fired 10 bullets into Nichols. Salvi was arrested the next day in Norfolk, Va., after he began shooting at an abortion clinic there. [The Washington Post, 3/19/96]
Violence And Intimidation Outside of Massachusetts Health Centers That Offer Abortion Services Is Still A Pressing Concern
The Boston Globe: Clinics Were "Routinely Bombed, Burned, Or Doused With Butyric Acid" Before Buffer Zone Laws. Boston Globe columnist Renée Loth described the tense and violent atmosphere around women's health centers before the enactment of buffer zone laws. Visiting a clinic after the passage of the law, Loth wrote that the environment has improved -- although it "wasn't exactly comfortable":
As I walked toward the entrance of the Planned Parenthood health center on Commonwealth Avenue this week, a small group of protesters lightly pounced. One woman offered me a rose. Another gave me some literature with Bible verses and pictures of a fetus at various stages of development. "There's good reading in there," she said. Another prayed with rosary beads. It wasn't exactly comfortable, but everyone was polite. And everyone stayed outside a bright yellow half-circle painted on the ground.
I was struck by the contrast to the common scene outside the health center in past decades, when antiabortion zealots screamed, chanted, blocked the doors, grabbed at women trying to enter, and photographed license plates. It was a time when women's health centers offering abortions were routinely bombed, burned, or doused with butyric acid. When staffers received letters purporting to contain anthrax. When John Salvi shot and killed two women and injured five others at two women's health centers in Brookline.
What's changed, according to many advocates, is the adoption of the Massachusetts buffer zone law, which creates a protected area for patients and employees a fixed 35 feet from the entrances to health centers. The law achieves a delicate balance between the free speech rights of abortion protesters and the rights of women to safely access the center. "It's a very peaceful coexistence," said Martha Walz, president of the Planned Parenthood League of Massachusetts and a coauthor of the 2007 law. "We no longer have that in-your-face harassment. The tension levels are way down. The law is working for everybody."
It's hard to see how even this conservative Supreme Court could take issue with the Massachusetts buffer zone. It does nothing to stifle free speech or prayerful protest, it only moves it 35 feet from the clinic door. It's hardly different from the familiar laws that prohibit political candidates from distributing campaign literature within 150 feet of a polling place -- or from the Supreme Court's own rules, reissued just this June, which establish a no-protest zone on the courthouse grounds, including the marble plaza before it. [The Boston Globe, 10/12/13]
Buffer Zone Laws Were Crafted To Prevent Instances Of Violence And Have Been Repeatedly Upheld As Constitutional
U.S. Court of Appeals For The First Circuit: "This Case Does Not Come To Us As A Stranger." Despite numerous challenges to the buffer zone law, it has been repeatedly upheld as constitutional by the First Circuit Court of Appeals. In its most recent decision upholding the legality of buffer zones around health center entrances, the court reiterated that, although the law places some restrictions on speech by moving protestors farther down the public sidewalk, "a diminution in the amount of speech, in and of itself, does not translate into unconstitutionality":
This case does not come to us as a stranger. At the turn of the century, the Massachusetts legislature passed a law that created fixed and floating buffer zones around abortion clinics. We rejected serial challenges to the constitutionality of that law.
The plaintiffs again appeal. They advance a salmagundi of arguments, old and new, some of which are couched in a creative recalibration of First Amendment principles.
Few subjects have proven more controversial in modern times than the issue of abortion. The nation is sharply divided about the morality of the practice and its place in a caring society. But the right of the state to take reasonable steps to ensure the safe passage of persons wishing to enter healthcare facilities cannot seriously be questioned. The Massachusetts statute at issue here is a content-neutral, narrowly tailored time-place-manner regulation that protects the rights of prospective patients and clinic employees without offending the First Amendment rights of others.
In the context of abortion-related demonstrations, the Supreme Court has specifically recognized the interest of clinic patients [in the 2000 case of Hill v. Colorado] both "in avoiding unwanted communication" and "pass[ing] without obstruction." Consistent with this interest, the First Amendment does not compel prospective patients seeking to enter an abortion clinic to make any special effort to expose themselves to the cacophony of political protests. Nor does it guarantee to the plaintiffs the same quantum of communication that would exist in the total absence of regulation. A diminution in the amount of speech, in and of itself, does not translate into unconstitutionality. So long as adequate alternative means of communication exist, no more is constitutionally exigible. [Bloomberg Law, 1/9/13]