In Abortion Case, Supreme Court Asks: How Far Is 35 Feet?

The justices will likely strike down Massachusetts's "buffer zone" law. But they might need to consult a tape measure.
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A sign outside the Supreme Court on January 15 protests Massachusetts's buffer-zone law. (Reuters)

On an ordinary day, Chief Justice John Roberts asks pointed questions of counsel and brief-slaps them if their answers don’t measure up. He also acts as kindergarten cop when his colleagues all speak at once. He is a formidable presence on the bench.

Except Wednesday during oral argument in McCullen v. Coakley, the Massachusetts case testing whether a state can establish a 35-foot “buffer zone” around clinics offering abortions so that patients can get inside without fighting their way through pro-life and pro-choice demonstrators.

There are two possible meanings to the chief’s silence. One is that he is genuinely undecided about a case that pits the rights of pregnant women against the rights of protest and advocacy on a public sidewalk.

That one’s not likely. Hamlet John Roberts is not. That’s particularly true in the First Amendment context, where he usually sides against government restrictions on speech.

So the more likely inference is that his mind is made up and nothing either lawyer could say Wednesday was going to change it. If that’s the case, then the Massachusetts law is doomed. It was easy to count four votes against it: Justice Antonin Scalia, who regards the statute as an attack on loveable old people who go to clinic sidewalks “to comfort these women”; Justice Anthony M. Kennedy, who is a near-absolutist on any government restriction of speech; Justice Samuel A. Alito, who suggested that the law was aimed at suppressing the pro-life viewpoint while allowing pro-choice clinic employees to speak; and Justice Clarence Thomas, whose view of the First Amendment centers around public spaces, and who has little use for abortion. Add Roberts and it is, as Lyndon Johnson used to say, “Goodnight, Grace.”

In fact, this may not even be a polarized 5-4 situation. Justice Elena Kagan repeatedly brought up the size of the Massachusetts “buffer zone.” I guess I'm a little bit hung up on why you need so much space,” she told Jennifer Miller, who argued for Massachusetts.

Justice Ruth Bader Ginsburg seemed inclined to uphold the law. So did Justice Stephen Breyer. It is very hard, Breyer suggested, to write a law that would spare Scalia’s kindly seniors while restricting the protesters who, the record shows, deliberately blocked clinic entrances, shouted, and shoved and thrust their heads into car windows outside the clinics. “The obvious reason for a legislator, I think -- I did work in the legislature for a while as a staff member --that you don't write these fine statutes is they won't work,” he suggested to Miller. “They have too fine a distinction.”

And the Massachusetts statute is sure enough broad. It forbids “knowingly enter[ing] or remain[ing] on a public way or sidewalk adjacent to a reproductive health care facility within a radius of 35 feet” of any entrance or driveway. The only exceptions are the actual patients, employees of the clinic “acting within the scope of their employment,” police officers, and citizens walking by “solely for the purpose of reaching a destination other than such facility.”

To begin with, public sidewalks are pretty much presumed to be free-speech areas. Even the Supreme Court itself, which primly forbids protest on its steps, has held that the public sidewalk in front of the Court must be open for pickets or demonstrators. For another, the ban sweeps in a lot more than boisterous, threatening, or obstructive protests. The challengers in this case, as Scalia said, are nice old people. And in case I just triggered the condescension police, that’s basically how they describe themselves. In their brief, they insist they only want to engage in “close, kind, personal communication, with calm voices, caring demeanor, and eye contact.” If obstruction of clinics is a problem, they argue, surely Massachusetts could pass a statute punishing those who obstruct, leaving the calm and caring to carry on activities protected by the First Amendment.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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