SCOTUS strikes down an abortion clinic ‘buffer zone’

Chief Justice John Roberts is terrible at writing court opinions. His attention to detail and to judicial precedent is lax, and his legal reasoning is deeply flawed. I believe this is because he has an ideological agenda and is outcome oriented. He is not the “umpire who calls balls and strikes” that he promised to be at his Senate confirmation hearing.

In 2000, the U.S. Supreme Court in Hill v. Colorado upheld by a six-to-three vote a Colorado law that forbade approaching within eight feet of another person within one hundred feet of abortion facility. This is the Court’s abortion clinic “buffer zone” precedent.

The state of Massachusetts’ abortion clinic “buffer zone” law was at issue in McCullen v. Coakley. “It is notable that outside of a brief mention in describing the background of the case (noting that Massachusetts had originally enacted a narrower buffer-zone provision modeled on the statute upheld in Hill), the majority opinion makes no mention of Hill at all.” What is left of Hill v. Colorado? (in contrast with Justice Scalia’s dissent, joined by Justices Kennedy and Thomas, which overtly calls for Hill to be overruled). Kevin Russell at SCOTUSblog.com writes:

Did the Chief Justice effectively overrule Hill or its result as a practical matter, without saying so?

The answer is unclear.  Much of the decision today tracks Hill’s reasoning.  The majority concludes that the Massachusetts law, although targeting abortion clinic protests, is content- and view-point neutral, and therefore not subject to strict scrutiny under the First Amendment.  The Court in Hill reached the same conclusion about the buffer zones in Colorado.  That conclusion was vigorously contested by the dissent in both Hill and McCullen today.  So that much of Hill survives.

The Chief Justice then goes on to apply to lesser (but still substantial) scrutiny reserved for neutral laws restricting the time, place, and manner of speech, as did the Court in Hill.  But while Justice Stevens and his majority found that the buffer zone in Hill was narrowly tailored, the Chief Justice’s majority opinion today finds that Massachusetts’s law does not.

The question is whether the reasons the majority gives today would effectively render buffer zones like Colorado’s unconstitutional, despite the result in Hill.  There’s a good argument that they would.

Lyle Denniston at SCOTUSblog.com provides analysis of the the opinion in McCullen v. Coakley. Opinion analysis: A broader right to oppose abortion:

The Supreme Court, leaving a clear impression that foes of abortion have at least a limited constitutional right to succeed in having close, one-on-one encounters with patients seeking that medical service, struck down on Thursday a seven-year-old Massachusetts law that created a “buffer-zone” around every abortion clinic in the state.  The law, the Court said, went too far to silence the messages of abortion opponents outside clinics even when those messages are quiet, intended to be courteous attempts to dissuade patients.

One potentially wider implication of the ruling is that it may also imperil “bubble zones” near clinics — invisible no-entry zones that float around individual patients as they approach a clinic.  That seemed to be at least hinted by a potential future line-up of Justices, different from Thursday’s array,  should a new “bubble-zone” test case arise.

The lead opinion by Chief Justice John G. Roberts, Jr., in McCullen v. Coakley went to considerable lengths to suggest ways that cities or states could pass new laws to protect patients’ access to abortion facilities.  But all of those approaches, it appeared, would be to thwart actual obstruction, physical intrusion, or actual intimidation of patients, not the kind of “counseling” that the Court found threatened by the Massachusetts law.

What the First Amendment does protect, the Roberts opinion made clear, is gentle persuasion, at least when that is carried out on the public sidewalks and roadways next to an abortion facility.

* * *

“It is no answer,” the Chief Justice wrote, “to say that [abortion counselors] can be seen and heard by women within the buffer zones.  If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled [the] message [of counseling].”

Concluding that sidewalk counselors working the sidewalks around abortion clinics are “not protestors,” the Court’s main opinion said that “they seek only to inform women of various alternatives and to provide help in pursing them.  [They] believe that they can accomplish this objective only through personal, caring, consensual conversations.”

The opinion thus put state and city governments on notice that, while they may act to ensure public safety around and abortion patients’ access to medical facilities providing such services, they cannot do so by making entirely off limits to counselors the areas closest to the clinics that include public sidewalks and roadways.

This, then, was a ruling about “buffer zones.”   The Court’s main opinion did not consider the continuing validity of a prior case about anti-abortion protests, dealing with the somewhat separate issue of “bubble zones.”  In its decision in 2000 in Hill v. Colorado, the Court had upheld a state law that limited close contact with persons entering or leaving an abortion clinic, by setting up a ”buffer zone” and, within that zone, making it illegal to approach a person closer than eight feet (a “bubble zone”)  without that person’s consent, to engage in counseling or literature distribution.

After this new ruling, it appeared that even a “bubble zone” might be vulnerable to challenge, at least when the patient was shielded from counseling on a public sidewalk or roadway near the clinic.  The Chief Justice’s approving remarks about the First Amendment right to engage in counseling in public arenas appeared to contradict some of the reasoning of the 2000 decision.

In a future test case on “bubble zones,” it would appear that four Justices who on Thursday wanted to strike down the Massachusetts law on broader grounds than those used by the Chief Justice might well be prepared to vote to strike down a “bubble zone.”  In fact, three of those four Justices called specifically on Thursday for overruling of the Hill v. Colorado precedent.  Those three were Justice Antonin Scalia, the author of a separate opinion, joined by Justices Anthony M. Kennedy and Clarence Thomas.

* * *

Thus, whether that precedent might be in jeopardy in a future case could depend upon whether the Chief Justice could be persuaded to join the four Justices who did not join his Massachusetts opinion but who might seek to enlist his support in an effort to protect close encounters in the “bubble zone” context, too — an extension of the new decision beyond the “buffer zone” context.

What is this so-called First Amendment right to “counsel” someone with “gentle persuasion”? Counselling that is neither sought nor consented to by the individual approached by the self-righteous “counselor.” Does this right extend to counselling men? Or is this right limited to counselling women at an abortion clinic?

Does this right extend to temperance “counselors” approaching individuals in front of bars and taverns to “counsel” them not to drink alcohol? Or to “counselors” approaching individuals in front of medical marijuana dispensaries to “counsel” them not to smoke pot? Does this right extend to health & fitness “counselors” approaching individuals entering a fast-food restaurant to “counsel” them to eat healthy food and to not drink sodas?

Or is this a court-created First Amendment right specifically for a “special class” of anti-abortion zealots who believe they have a right to interfere with a woman seeking to exercise her constitutional right of privacy to consult a physician of her choice, Griswold v. Connecticut, and to obtain a constitutionally protected abortion, Roe v. Wade, if that is her decision? If the Court has created a “special class,” how does this square with its equal protection jurisprudence?

The Roberts Court continues to elevate First Amendment free speech to a “First Commandment,” taking an absolutist approach to remove exceptions and limitations. This calls into question an entire line of Supreme Court precedents regarding restrictions on the time, place and manner of speech exercised. Free speech has never been absolute.

Is the Roberts Court actually asserting that this court-created First Amendment right to “counsel” someone with “gentle persuasion” takes precedence over a woman’s constitutional right of privacy to consult a physician of her choice, Griswold v. Connecticut, and to obtain a constitutionally protected abortion, Roe v. Wade? That question is not answered.

In balancing constitutional rights, shouldn’t the right of an individual to be left alone take precedence?