Can a state restrict some speech -- limiting where dissenters can stand -- if it can show that existing criminal laws aren't enough to protect patients? That question was the focus of many of the Supreme Court justices in the oral argument Wednesday morning for McCullen v. Coakley, a case challenging Massachuetts' 35-foot buffer zone around abortion clinics.
The fate of Massachusetts' law depends on whether Justice Samuel Alito and Chief Justice John Roberts join Justices Antonin Scalia, Clarence Thomas, and Anthony Kennedy in their previous, vehement opposition to buffer zones. Alito and Roberts weren't on the Court in 2000 when it upheld a Colorado eight-foot floating buffer zone. (Kennedy wrote his own strongly worded dissent in that case, saying, "If from this time forward the Court repeats its grave errors of analysis, we shall have no longer the proud tradition of free and open discourse in a public forum.")
Roberts did not ask any questions on Wednesday, so he remains a wild card.
But Alito made clear he is highly skeptical of the Massachusetts law. He even entertained the idea that the law specifically discriminated against the anti-abortion viewpoint—a higher bar— because clinic employees are allowed to enter the buffer zone to escort patients in and out. Massachusetts disputes that allegation, arguing it has also had problems with protesters who support abortion rights, and that clinic employees are within the scope of their employment when they go in and out of the clinic.
In court, Alito proposed a hypothetical: A woman entering a clinic is approached by two other women. One says, "Good morning, this is a safe facility," the other says, "Good morning, this is not a safe facility." Alito said, "Now, under this statute, the first one has not committed a crime; the second one has committed a crime. And the only difference between the two is that they've expressed a different viewpoint. One says it's safe; one says it's not safe. Now, how can a statute like that be considered viewpoint-neutral?"
Massachusetts Assistant Attorney General Jennifer Grace Miller replied that it was a question of conduct, not speech, and "that speech is incidental to the conduct." She also said that the plaintiffs "haven't even begun to make the case" that the clinic staff are in fact abusing their exemption by engaging in speech or advocacy inside the buffer zone.
The protesters' attorney, Mark Rienzi, focused on the state abusing its power more broadly, invoking putting "people in prison for peaceful speech" and "dragging Mrs. McCullen off to prison because she has a consensual conversation."
Justice Stephen Breyer took the most active role in implicitly advocating for the need for the law. He tried to get Rienzi to distill to basic principles: Did the state ever have a right to say that it was difficult to referee individual claims and that it needed a general buffer zone? After all, as several other justices pointed out, there are other kinds of buffer zones that lower courts have found permissible, including outside military funerals and polling places.
Rienzi argued that the state already has tools to deal with such disturbances, because it is already illegal under federal law to block the entrance to a facility. He said that a preferred alternative would be to have individual injunctions against abusive protesters on a case by case basis.
Scalia asked when the last time was that the state of Massachusetts prosecuted someone for blocking an entrance. Rienzi said it had once in 1997, but that there had never been a federal prosecution in Massachusetts.
"You are not taking the position that 1997 was the last time an entrance was obstructed or that the police were called to open access to a clinic?" said Justice Sonia Sotomayor skeptically. "You do know that in the record there were more examples?"
And Justice Ruth Bader Ginsburg said, "The problem the state faces is that it doesn't know in advance who are the well-behaved people and who won't behave well. And after the disturbance it's too late."
Justice Elena Kagan cited the example, given by the plaintiffs, of animal rights activists who are restricted in their desire to block entrances to slaughterhouses. "I guess my reaction to that hypothetical -- you must have used it for me to say, oh, that's terrible. But my reaction, my intuition was kind of what's wrong with that? Just have everybody take a step back," she said.
But later she added, "Which is not to say this statute doesn't have problems, in my view. I'm a little hung up on why you need so much space." (She compared the size of the barrier to the size of the court, confusing. Later, there was speculation among observers that Kagan was erroneously referring to 35 yards, not feet.)
"If you sent me 35 feet back," Rienzi said, "You might be able to hear me, but I'd suggest you'd receive it in a different way," particularly if, he added, the opposing counsel were allowed to stand closer.
Ginsburg asked how long it took to walk from the edge of the buffer zone to the door. Rienzi said it took seven to ten seconds.
The question is whether the plaintiffs have a right to those seven to ten seconds of approaching a woman who is about to have an abortion. That's one reason why Justice Scalia interrupted Miller, arguing for Massachusetts, to insist that this is a "counseling case, not a protest case." (No one disputes that the plaintiffs can still protest outside the 35 foot barrier.)
"It's a congestion case," said Miller. Scalia continued to insist that what the protesters wanted to do was engage in conversation "in a friendly manner, not in a hostile way." Miller eventually said that there is no guarantee to "close, quiet conversations" in the constitution. Kennedy repeated this incredulously, adding, "Do you want me to write an opinion and say there's no free speech right to quietly converse on an issue of public importance?"
In all, it looks fairly bleak for the Massachusetts law, though nothing is certain until the Court issues its opinion. For now, if there is to be any comfort for the pro-choice side, it is that there was very little discussion of the Hill decision; a broader ruling that overturned Hill in addition to striking down the Massachusetts law would have a much wider impact on abortion access.