The U.S. Supreme Court’s ruling in Citizens United v. FEC doesn’t require overturning a Massachusetts restriction on speech within 35 feet of abortion clinics, a federal appeals court has ruled.
On January 9, the U.S. Court of Appeals for the First Circuit in McCullen v. Coakley affirmed a ruling that the law is constitutional as applied to the three clinics: in Boston, Worcester, and Springfield.
The law was enacted in 2000 and revised in 2007. The revised version created a 35-foot buffer zone around the entrances, exits, and driveways of abortion clinics with certain exceptions: people entering or leaving; employees; emergency personnel, construction, utilities and public employees doing their jobs; and individuals using the public sidewalk or street right-of-way in order to reach a different destination.
In January 2008, Eleanor McCullen and other individuals sued Massachusetts Attorney General Martha Coakley and the district attorneys for the counties where the clinics are located. They challenged the act on various First and 14th Amendment grounds.
In July 2009, in a case known as McCullen I, a different First Circuit panel affirmed a ruling by Judge Joseph Tauro of the District of Massachusetts that the law is a “facially valid permissible restriction on the time, place, and manner of speech.”
In February 2012, Tauro ruled that the law is constitutional as applied to the three clinics, and seven plaintiffs appealed.
Senior Judge Bruce Selya wrote the opinion, joined by senior judge Norman Stahl. Judge Michael Boudin heard oral argument and participated in the semble, but he did not participate in issuing the panel’s opinion.
Selya wrote that in Citizens United, “The Court did not retreat from its well-settled abortion clinic/buffer zone jurisprudence.” He found that the plaintiffs “seize upon an isolated statement in Citizens United: ‘Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others.”…But they yank this statement from its context.”
Selya noted that the plaintiffs have “adequate alternative means of communication” with patients entering the clinics than their preferred “up-close, gentle conversations … To be sure, the Act curtails the plaintiffs’ ability to carry on gentle discussions with prospective patients at a conversational distance, embellished with eye contact and smiles. But as long as a speaker has an opportunity to reach her intended audience, the Constitution does not ensure that she always will be able to employ her preferred method of communication…As long as adequate alternative means of communication exist, the First Amendment is not infringed.”
The plaintiffs’ lawyer, Mark Rienzi, an associate professor at Catholic University of America Columbus School of Law, said, “The same rules have to apply to all speakers. The government cannot put peaceful pro-life speakers in jail, but give Planned Parenthood free rein on the same sidewalk.”
In a written statement, Massachusetts Attorney General Martha Coakley said that the state is “pleased that the court has once again upheld the Commonwealth’s buffer zone law which provides safe access to reproductive health care facilities while preserving freedom of expression. We have always believed, and the court agreed, that the buffer zone leaves open the opportunity for civil engagement on public areas around these facilities while ensuring that patients and health care providers can safely access these facilities.”
Sheri Qualters can be contacted at firstname.lastname@example.org.