By Noah Feldman
CAMBRIDGE, MASS.: Neither rich nor poor may sleep under the bridges of Paris. Is that law neutral with respect to who’s doing the sleeping? If you think the answer is obvious, think again — and think abortion.
In McCullen v. Coakley, on which the Supreme Court heard arguments last week, the justices have to answer a version of the same question in deciding whether Massachusetts may block anyone from gathering within a 35-foot “buffer zone” outside abortion clinics. If the regulation is found “content-neutral” and narrowly tailored to protect the exercise of the constitutional right to abortion, it will survive. If not, an increasingly pro-free-speech court may strike it down.
The Supreme Court has seen a version of this question before. In the 2000 case of Hill v. Colorado, the court by a 6-3 vote upheld a law that created an 8-foot bubble around anyone in the vicinity of a health-care facility. No one could enter the bubble to hand someone a leaflet or to protest, educate or counsel them. In an opinion written by former Justice John Paul Stevens and joined by, among others, the retired Justices William Rehnquist, Sandra Day O’Connor and David Souter, the court said the law was content-neutral and justified by interests in access to clinics that were unrelated to the expression of ideas.
Justice Antonin Scalia, joined by Justice Clarence Thomas, issued a characteristically outraged dissent. “Does the deck seem stacked?” he asked. “You bet.” There was no content-neutrality in a law aimed at abortion protesters and not supporters of the practice, they felt. Both men remain on the court, as does Justice Anthony Kennedy, who wrote a dissent of his own.
Massachusetts claims it enacted its buffer-zone law in 2007 after an earlier version, modeled on the Colorado statute, proved unenforceable. The state says that its law, which allows pedestrians to pass through the buffer zone as long as they don’t stop and also allows clinic employees to perform their jobs in the zone, is just as neutral as the Colorado law. In fact, the state could credibly maintain that its law is more neutral than the one upheld by the court in 2000. That law specifically prohibited particular types of speech — protest, education, counseling — while the Massachusetts law says nothing whatever about speech, and only regulates presence.
To pro-life protesters, however, the law is blatantly aimed to make their speech less effective by moving them 35 feet back from clinic entrances. From that distance, they say, their message of love and compassion — often reinforced by graphic images of bloody fetuses — will be harder to communicate to women entering the clinics. The truth is that the buffer zone will apply to both anti- and pro-abortion protesters, but pro-life protesters have a much stronger interest than do pro-choice advocates for being in close proximity to clinics. To some degree, at least, the law stacks the deck against them.
Still, two reasons suggest that the court should uphold the law. First, there is the reality that pro-choice activists do often have a presence at clinics. Admittedly, they are generally there to escort patients who might otherwise be intimidated passing the pro-life gantlet. But the fact that the pro-choicers aren’t acting as counter-protesters doesn’t detract from the free-speech component of their actions. If the pro-lifers are moved out to 35 feet, the pro-choicers will be, too — and a fair application of the law would not let them accompany clinic patients into the buffer zone. Because both sides are speaking, the law really can plausibly be described as neutral between them.
Second, under current constitutional norms, protesters at a wide range of public events are often moved to different locations in order to allow for the free flow of traffic. At national political conventions, protesters have been placed behind barricades, sometimes blocks away from the action — and the courts have upheld that as a reasonable, content-neutral restriction on the time, place and manner of the speech. Similar constitutional principles were used to uphold the removal of the Occupy Wall Street protesters from public places in many American cities.
These precedents may be totally wrong as a matter of original interpretation — the First Amendment right to peaceful assembly is arguably being violated whenever protesters are shunted off to a remote location — but they are, at present, good law. If political protesters can be kept at a distance, there is no reason that same principle should not apply to protesters for and against abortion.
The wildcard, of course, is the court’s different composition than in 2000. Chief Justice John Roberts and Justice Samuel Alito aren’t Rehnquist and O’Connor — not by a long shot. The Scalia stacked-deck argument may appeal to them. The court has also become increasingly pro-free-speech in recent years. The Obama administration has weighed in on the side of Massachusetts, which also signals the political tenor of the case.
So far it has not been the Roberts way to overturn precedent, but to distinguish it carefully while moving right. Hill v. Colorado is unlikely to be reconsidered. But if Roberts can find a creative way to describe the buffer zone as more biased than the bubble, look for the court to strike down the law.
Feldman, a Harvard law professor, is a Bloomberg View columnist. He can be reached at firstname.lastname@example.org.