Supreme Court Justice Ruth Bader Ginsburg is standing by her vote against Massachusetts' requirement of 35-foot buffer zone outside abortion clinics. The Supreme Court unanimously ruled in June that the state's buffer zones violated the free speech of anti-abortion protesters.
"It was not a compromise decision but a good decision to say yes, you can regulate, but it is speech so you have to be careful not to go too far," Ginsburg told the Associated Press in an interview Thursday, referring to the case McCullen v. Coakley. Many observers, including Ginsburg's biggest fans, were also disappointed that the longtime reproductive rights champion did not write in concurrence to affirm the importance of safe access to clinics.
The justice said she was unconvinced by the evidence the state presented that a fixed barrier around the clinics, which only patients and clinic staff could enter, was necessary to protect patient safety. "If you looked at what they had in evidence, it was pitiful compared to some in-your-face demonstrations," Ginsburg said.
Ginsburg had seemed more sympathetic to the law in oral argument, saying the state “doesn’t know in advance who are the well-behaved people and who are the people who won’t behave well. After the disturbance occurs, it’s too late.”
The decision stopped short of overturning the court's precedent on differently designed clinic protection laws, and declined to say that the Massachusetts' law discriminated against the viewpoints of the protesters, a more serious rights violation that would have had broader implications for a longer list of states' laws. Still, the decision is being felt nationwide: Portland, Maine repealed its 39-foot buffer zone rather than have it challenged in court; New Hampshire is defending its 25-foot "flexible" zone in court; and Burlington, Vermont, and Madison, Wisconsin, have scaled back enforcement of their clinic ordinances.
"I have no doubt that if the court had been composed of nine women the result would have been different in Hobby Lobby."'
This week, Massachusetts governor Deval Patrick signed into law a new measure intended to protect patients and staff around abortion clinics, which strengthens police and civil powers against protesters who block access. State attorney general Martha Coakley said of the new law, “We believe it will withstand any constitutional scrutiny moving forward.”
In the Associated Press interview, Ginsburg reiterated her criticism of the Court's decision in Burwell v. Hobby Lobby Stores, and her belief that the gender of the all-male majority was significant. "I have no doubt that if the court had been composed of nine women the result would have been different in Hobby Lobby," Ginsburg said. Justice Stephen Breyer also voted against allowing private companies to opt out of their employees' contraceptive coverage.
Justice Ginsburg also hinted that the court was likely to take another gay marriage case. "I think the court will not do what they did in the old days when they continually ducked the issue of miscegenation," Ginsburg said. "If a case is properly before the court, they will take it."