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Buffer zone status and analysis

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Interesting links


The ‘‘Buffer Zone Law’’

Text of Mass. Buffer Zone law

Boston Globe Op-ed on Buffer Zone by Bill Cotter. This article was written about the original proposed buffer zone: a fixed 25-foot radius around each clinic entrance.

False accusations
against pro-lifers at clinic.

Overturned by U.S. Supreme Court 9-0, June 26, 2014

Massachusetts Governor Deval Patrick signed the revised ‘‘Buffer Zone’’ bill into law on November 13, 2007.

When did the law take effect?

On the day the governor signed it.

What does the law require?

It mandates that we cannot ‘‘knowingly"  enter into or remain within an area of the sidewalk 35 feet or lease from an abortion facility entrance, provided such an area is marked and posted.

What are the penalties for violation?

  • First offense: a maximum of three months in jail and/or a maximum $500 fine.
  • Subsequent offenses: a maximum of 2.5 years in jail and/or a fine of $500-$5000.

Can we appeal this law in federal court?

Yes, a federal challenge, first filed in U.S. District Court in Boston in January 2008, has finally made it to the U.S. Supreme Court. Oral arguments were heard on January 15, 2014.

Go to the Supreme Court web site and click on “Oral Arguments,” followed by “Argument Transcript” or “Argument Oral”; the name of the case is McCullen v. Coakley.

Many media reports opine that the court is likely to strike down the law, but - ominously (?) - Chief Justice Roberts - who could be the deciding vote - remained silent throughout the hearing.

SCOTUSblog blogger seems to think we'll win!

American Center for Law and Justice commentary: Pro-life sidewalk counselors like Mrs. McCullen and Father Cadin should not be treated as second-class citizens. The public sidewalks outside of abortion clinics should no longer be speech free zones for those with pro-life views, but should be constitutionally protected free speech zones for all Americans. Click here for complete commentary.

NY Times on the January 15, 2014 hearing

U.S. edition of The Guardian

Critics on the Left

Laurence H. Tribe, the Harvard law professor, said the decision was "right up there" among the candidates for the worst blunders the Supreme Court committed that term.
     "I don’t think it was a difficult case," he said at the time. "I think it was slam-dunk simple and slam-dunk wrong."

Floyd Abrams, a First Amendment lawyer, said the Massachusetts law was no better than the one upheld in 2000.
     "The protections of the First Amendment do not evaporate the closer one comes to an abortion clinic," he wrote in an email. "Access must be protected; so must speech." – AP article by Mark Sherman

Comments on McCullen v. Coakley
by Michael DePrimo, one of the attorneys for the petitioners.

On January 15, 2014 the U.S. Supreme Court heard arguments in McCullen v. Coakley. The Attorney General’s Office defended the buffer statute as a simple measure designed to prevent congestion and obstruction at clinic entrances and driveways while still allowing all manner of speech for anyone passing through the zone, including pro-life advocates. But this latest spin on the statute is contrary to the purpose and interpretation that the Attorney General had advanced for the previous six years. In the lower courts, the Attorney General said the statute was designed to prevent not only congestion and obstruction but also harassment and violence. She also made clear—and the lower courts agreed—that speech about abortion and “partisan” matters were prohibited inside the zone. Why the eleventh hour about-face? Was it because the Attorney General was aware that Supreme Court Justices would not tolerate a content-based restriction on speech? Maybe. But I think her real concern was that Eleanor McCullen and the other petitioners did not fit the liberal media’s long-time portrayal of pro-life advocates as being nothing but wild-eyed, screaming, women-hating zealots. On the contrary, as several left-leaning reporters opined after personally observing Eleanor’s sidewalk counseling efforts, Eleanor is the new face of the pro-life movement: grandmotherly, gentle, kind and loving. Of course, this description fits not only Eleanor but many other Boston-area counselors such as Jean Zarrella, Ruth Schiavone, and Mary O’Donnell. Violent or screaming abortion protestors are the rare exception today, not the rule. We “pro-lifers” knew that all along. But now the general public and the Supreme Court Justices know it, too.

     As many of us are aware, we live in an age of technological sound-bites—those short, pithy terms that are used as general descriptions of people or activities. For example, as soon as we hear the term “anti-choice” we know that the speaker is an abortion-rights supporter that holds pro-life advocates in contempt. Though for much of the past 40 years the abortion-rights movement held the upper-hand in the use of this type of rhetoric, the tide is beginning to roll back. In the media age labels are important and the pro-life movement is just now getting the respect it deserves.

     As for the argument itself, petitioners’ pro-life counsel Mark Rienzi was exceptionally well-prepared and did a superb job. As some of you may know, Mark was fresh out of Harvard Law School when he filed suit in 2000 against Massachusetts’ 6-foot floating buffer zone in McGuire v. Reilly. Mark lost that case, not because he was wrong on the law, but because the federal courts in Massachusetts took a wrong view of the First Amendment. A win in McCullen will not only serve to strike down the present fixed buffer law but will likely will forestall the Commonwealth’s attempt to resurrect the old floating buffer law should it try to do so. Kudos to Mark.

     Here’s an interesting fact not reported by the media. Though Attorney General Martha Coakley attended the argument, she chose to sit in the gallery toward the back of the courtroom rather than with the Commonwealth’s lawyers at counsels’ table in front of the Justices. Now, I found that quite odd. Here was the chief law enforcement officer for the Commonwealth who stated publicly—numerous times—that she looked forward to defending the buffer law in the Supreme Court. Now, when it came time to actually argue in defense of the statute, she hid herself among the gallery while her underling had to face tough questioning from skeptical Justices. Only a few days before the argument she was telling reporters that she couldn’t understand why the Court even agreed to hear the case. But by the day of the argument she was conceding that the Commonwealth faced “an uphill battle.” I’ll let you in on a not-so-well kept secret, General Coakley. The Commonwealth faces an uphill battle because it ignored the First Amendment and resorted to the worst kind of bullying. In a free society, the government shouldn't be threatening kind and loving speakers like Eleanor McCullen with prison for engaging in peaceful conversation on public sidewalks. Women going into clinics deserve a chance to hear from counselors like Eleanor. We are confident that, in a few months, the Supreme Court will restore our right to do so without the threat of prison.

End of analysis.

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