Shift in SCOTUS Membership Could Spell Trouble for Abortion Clinics

By Evan Stahr, Communications Intern

To combat harassment of women entering family planning and abortion clinics by anti-choice protesters, some municipalities and states have enacted “buffer zone” rules. In general, these prohibit protesters from approaching people entering a clinic.

These laws are seen by some to be an undue restraint on the free speech rights of protesters. In the 2000 case Hill v. Colorado, the Supreme Court disagreed.

The Colorado law in question prohibited a person from “knowingly approach[ing]” a non-consenting client “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person.”

As Justice John Paul Stevens writes in the majority opinion, it does not prevent protesting altogether; it simply prevents people entering a facility from being accosted with leaflets and misleading information.

The Court’s upholding of the law reflected two main ideas: a person’s right to consenting communication – or “the right to be left alone” in the words of Justice Brandeis – and the content-neutral nature of the statute.

Just as the people protesting outside have a right to their free speech, the people entering the facility have a right to refuse to listen to that speech and not have it pressed upon them. The Court weighed these two rights and determined that the Colorado statute struck an acceptable balance between them.

Furthermore, the Colorado statute barred anyone from accosting women entering a clinic. It did not limit, either explicitly or implicitly, its provisions to only anti-choice activists. As such, the majority of the Court found the statute content-neutral.

The minority of the Court, however, disagreed. These Justices – Kennedy, Scalia, and Thomas – thought that the law went too far in restricting speech. In two separate dissents, the three argued that the law discriminated against anti-abortion protesters and that the government does not necessarily have a duty to protect citizens from non-consensual speech.

Justices Scalia and Thomas firmly sit in the conservative wing of the Court, and Kennedy is commonly seen as the swing vote between this wing and their liberal colleagues. Over the past decade, the conservative wing has unquestionably come to dominate the Court majority.

What does this shift mean for “buffer zone” laws? The Supreme Court will be hearing a challenge to a similar Massachusetts law in McCullen v. Coakley. The First Circuit Court of Appeals already affirmed that Massachusetts’ “buffer zone” law comports with the ruling in Hill.

The Supreme Court, however, could be poised to overturn this ruling. The dissenters in Hill are now likely to be in the conservative majority of the Court. Barring a surprising turn from a swing Justice, it seems as if Massachusetts women — like so many others across the country — will sadly have to face harassment when exercising their rights over their own bodies. In this case, the conservative Court would once again limit the freedoms of our nation’s women.

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