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.
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
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
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
such as Jean Zarrella, Ruth Schiavone, and Mary O’Donnell. Violent or
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
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
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
Here’s an interesting fact not reported by the media. Though Attorney
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
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,
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
End of analysis.