McCullen v. Coakley

Facts

For over three decades, pro-life and pro-choice advocates have battled each other over the best forums for expressing their ideas. A large part of the struggle has occurred in front of reproductive health care facilities (“RHCF”), where pro-life advocates sometimes try to dissuade patients, shame the staff, and call attention to what they believe are the evil practices of these facilities. In Massachusetts, the protests have often resulted in violence and other unruly behavior. To encourage public safety in and around RHCFs without affecting the flow of traffic, the Massachusetts legislature passed An Act Relative to Reproductive Health Care Facilities (“2000 Act”). The 2000 Act prohibited individuals, with the purpose of discussing protest-related content, from approaching another person within six feet without consent.

The First Circuit upheld multiple challenges to the 2000 Act which was closely modeled on a Colorado statute that the Supreme Court upheld in Hill v. Colorado. However, in 2007, the legislature decided to change the statute to cure unanticipated difficulties in enforcing the 2000 Act. The result of the change was An Act Relative to Public Safety at Reproductive Health Care Facilities (“2007 Act”) that created buffer zones near access points to the clinics. The 2007 Act defined the zone as a thirty-five foot radius from any entrance, exit or driveway of a reproductive RHCF, or a rectangle created from the outside boundaries of each access point, all the way to the street. Furthermore, the 2007 Act prohibits all persons from remaining within the marked buffer zones with four exceptions; people entering or exiting the facility, staff of the facility acting within the scope of their employment, law enforcement and other public service officials acting within the scope of their employment, and people using the area solely for the purpose of reaching a destination.

Eleanor McCullen and the other petitioners base their claims around their activities at three Massachusetts clinics. The first clinic is in Boston at 1055 Commonwealth Avenue, where the only access point is the front entrance that requires the use of a twenty-five foot sidewalk on Commonwealth Avenue. McCullen parks her car on Commonwealth Avenue and covers it with pro-life signage, while other people pray with loudspeakers, sing religious hymns while holding religious imagery, and counsel potential patients. The second clinic is in Worcester, where pro-life activists conduct the same aforementioned activities, although here, the activists will sometimes try to divert the potential patients to a pro-life center located across the street from this clinic. The RHCF is a stand-alone building that has an access point through a large sidewalk located in front of the building and through a private parking lot behind it, which is the access point most commonly used. The third RHCF is in a multi-tenant medical complex, in a building with at least eight other medical offices. This building is bordered on two sides by private parking lots, a third side abuts another building, and the fourth side fronts an open expanse. There are five driveways leading in an out of the building and two are marked as buffer zones. One active pro-life supporter in Springfield prays aloud, shows pro-life signs, and counsels patients.

On January 16, 2008, McCullen and other Massachusetts residents who regularly engage in pro-life activities around the RHCFs sued the Attorney General, Martha Coakley, in federal district court. McCullen alleged violations of 42 U.S.C. § 1983 and other constitutional violations, seeking declaratory and injunctive relief. The district court bifurcated McCullen’s claims into facial and as-applied challenges. The district court denied relief on all of McCullen’s claims, and McCullen appealed to the First Circuit. Nevertheless, the First Circuit concluded that the 2007 Act was content and viewpoint-neutral, and a valid time-place-manner regulation. Additionally, the court held that the 2007 Act was not overly broad or vague, and thus ruled that the Act was not an unlawful restraint on protected speech. McCullen then appealed to the Supreme Court of the United States, and the Supreme Court granted certiorari to determine whether the First Circuit erred in upholding Massachusetts’ 2007 Act as constitutional.

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Discussion

McCullen argues that the 2007 Act is unconstitutional because it denies RHCF patients the opportunity to access information about abortion alternatives. Coakley argues that the zones help promote public safety by protecting patients. The Supreme Court’s decision implicates access to information about abortions and alternatives, freedom of speech, and women’s rights.

PROTECTING RHCFS

Planned Parenthood League of Massachusetts (“PPLM”) argues that the 2007 Act is neutral on its face because, in order to prevent violence, it restricts who can congregate outside of RHCFs, regardless of what those individuals say. According to PPLM, protestors with any message cannot congregate outside RHCFs, and that includes pro-choice protestors as well as the petitioners in this case. Furthermore, PPLM argues that in order to promote safety around RHCFs, the statute grants RHCF employees access to the buffer zones as a matter of logistical necessity. Furthermore, PPLM acknowledges that there are PPLM escorts at the Boston facility on Saturday mornings stationed outside of the buffers zone to help patients locate and enter the facility, but the PPLM escorts are prohibited from counseling patients within the buffer zones and only assist patients in the buffer zone upon request.

In support of McCullen, 40 Days for Life Organization (“40 Days”) asserts that the 2007 Act lacks neutrality because it restricts speech only around RHCFs as other health care facilities are exempt. In limiting the application of the 2007 Act to RHCFs, 40 Days claims the Massachusetts legislature was not making a general policy choice for health care facilities, rather it was targeting the content of speech around RHCFs. Furthermore, 40 Days points to the 2007 Act’s exception allowing RHCF employees into the buffer zone as allowing only one side of the debate to be represented inside that zone.

ACCESS TO INFORMATION

The Justice and Freedom Fund (“Fund”), in support of McCullen, argues that the statute hinders speech by changing the channels for communicating the pro-life message, and hence depriving pro-life activists of the most effective means of communicating with potential patients. Democrats for Life also argues that the no-speech zone changes the tone, voice, and identity of the speaker, and thus the law hinders its members’ ability to communicate. Moreover, 40 Days claims that the no-speech zone denies women the opportunity to receive information about possible abortion alternatives that may promote their health. As a result, 40 Days argues that it should be up to the woman to receive or reject that information, but that the State’s responsibility is to allow her to access alternative sources of information.

The United States, in support of Coakley, counters that the statute does not ban speech, it merely regulates the place where the communication takes place. Therefore, the United States maintains, anti-abortion activists can approach whomever they want, whenever they want, for whatever purpose they want, so long as they do this outside the buffer-zone, because, so far, buffer-zones are the only viable means of keeping those areas safe and clear. The United States also points out that women are not prevented from obtaining this information on their own; women who are interested can easily approach the activists and request the information from them. Furthermore, activists have many other adequate channels of communication, such as holding signs, praying, singing, and approaching people right outside the zones. Moreover, activists can engage in many activities that allow people within the zone to hear their message.

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Analysis

The Supreme Court will determine the constitutionality of a Massachusetts law, which creates a buffer zone around RHCFs which forbids speakers (other than clinic employees or agents acting within the scope of their employment) from visiting a public sidewalk within thirty-five feet of a clinic’s entrance, exit, or driveway. Deciding this issue will require an analysis of two sub-issues: (1) whether, under the First and Fourteenth Amendments, the First Circuit erred in upholding Massachusetts’s buffer zone law; and (2) whether Hill v. Colorado should be limited or overruled.

Eleanor McCullen claims that the First Circuit erred in upholding the 2007 Act because the law is not a permissible time, place, and manner regulation of free speech. McCullen also claims that Hill should be substantially limited or overruled.

Massachusetts Attorney General Martha Coakley claims that the First Circuit did not err in upholding the 2007 Act because the law is a permissible time, place, and manner regulation of free speech. Coakley also asserts that Hill should not be limited or overruled.

THE 2007 ACT’S EFFECT ON FIRST AMENDMENT RIGHTS

Coakley asserts that the First Circuit did not err in upholding the 2007 Act because the law is a permissible time, place, and manner regulation of free speech. According to Coakley, the 2007 Act is permissible under the Supreme Court’s well-established standard for evaluating the constitutionality of regulations on the time, place, or manner for engaging in expressive activity in a public forum. According to Coakley’s interpretation of Supreme Court precedent, a regulation of free speech is permitted if the restriction is (1) both content- and viewpoint-neutral; (2) “narrowly tailored to serve asignificant government interest”; and (3) “leaves open ‘ample alternative channels for communication.’”

McCullen claims that the First Circuit erred in upholding the 2007 Act because the law is not a permissible time, place, and manner regulation of free speech. First, McCullen argues that the law is not content-neutral because the law creates buffer zones only at RHCFs, as opposed to all health care facilities, and thus only impacts the free speech of citizens who want to speak on the issue of abortion. McCullen also argues that the law is not viewpoint-neutral because the law exempts RHCF employees and agents from the buffer zone. Thus, McCullen asserts that the 2007 Act provides RHCF employees and agents with privileged access to public sidewalks for the purpose of promoting the clinics’ pro-choice views, while obstructing anti-abortion groups from expressing their views.

Coakley, however, argues that the law is content-neutral because, even though the law creates buffer zones only at RHCFs, the statutory language of the law is not limited to people who oppose abortion. The law neutrally applies to all demonstrators, whether they oppose or support the women who are making an abortion decision. Coakley further argues that the law is viewpoint-neutral, even though the law exempts RHCF employees and agents from the buffer zone, because clinic employees often assist in protecting patients and ensuring their safe passage as they approach the clinic. Even employees and other individuals exempt from the 2007 Act are prohibited from blocking access to RHCFs or stopping traffic on the sidewalk. Still, in the event that the Court determines that the employees exemption is not permissible, Coakley argues that the employee exemption should then be severed rather than invalidating the entire act.

Second, McCullen argues that the law is not narrowly tailored because the law unnecessarily bans citizens from entering otherwise public sidewalks to distribute leaflets or conduct consensual conversations with willing listeners. McCullen elaborates that a narrowly tailored law will only regulate close, physical approaches to unwilling listeners.

Coakley, however, counters that the 2007 Act is sufficiently narrowly tailored, even if the regulation has the effect of limiting communications with some willing listeners. Coakley points out that the Supreme Court has repeatedly held that a sufficiently narrowly tailored law can constitutionally bar protestors from approaching both willing and unwilling listeners, where there is ample opportunity to communicate outside the zone. According to Coakley, Massachusetts tried to eliminate harassment from protestors on both sides of the abortion issue who have a history of preventing patients and staff from entering RHCFs.

Third, McCullen argues that the law does not provide sufficient alternative channels of communication. McCullen testified her group’s anti-abortion messages are most effective when conveyed through personal communication from a conversational distance with a calm voice, caring demeanor, and eye contact. McCullen states that the alternative means of communication available under the 2007 Act, which requires standing outside the exclusion zones shouting using bullhorns and/or waving large signs, is not an adequate alternative.

On the other hand, Coakley contends that there are ample opportunities to communicate outside the buffer zone, even if protestors are not afforded an absolute right to communicate from a conversational distance. Coakley points out that the First Amendment does not guarantee citizens the right to communicate one’s view at all times and places or in any manner desired. Coakley states that the Supreme Court restricts the time, place, and manner of speech in order to protect public health and safety, and the 2007 Act was specifically designed to protect the health and safety of women seeking reproductive health care services. Further, Coakley argues that the fact that McCullen continued to succeed in convincing some pregnant women, whom McCullen met outside the buffer zone, to not undergo abortions further establishes that alternative channels of communication are available to McCullen.

LIMITING OR OVERRULING HILL

McCullen argues that Hill v. Colorado should be substantially narrowed or overruled. In Hill, the Supreme Court affirmed a Colorado law that created a buffer zone around all health facilities so that protestors could not approach within eight feet of a person without their consent. McCullen, however, argues that since Hill was decided, no Supreme Court majority opinion has relied on Hill’s First Amendment analysis because that case contradicts other well-established First Amendment principles. Further, McCullen claims that Hill emboldens legislatures and lower courts to encroach on important First Amendment liberties.

Coakley argues that Hill should not be substantially narrowed nor overruled. Coakley contends that, because there are important differences between the 2007 Act and the law reviewed in Hill, this case is not a proper vehicle for reconsidering Hill. For example, the 2007 Act deals with a fixed buffer zone that excludes all non-exempt individuals, without regard as to whether they are engaged in any kind of speech or communicative activity. But, Coakley contends, the law reviewed in Hill dealt with a floating buffer zone that excluded individuals from approaching others without consent for the purposes of protest, education, or counseling. Coakley also argues that the Supreme Court has upheld other fixed buffer zone laws that are similar to the buffer zone established under the 2007 Act and that the Massachusetts law is narrower than the Colorado statute in Hill.

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Conclusion

In this case, the Supreme Court will address the scope of free speech rights afforded to anti-abortion protesters. Eleanor McCullen claims that Massachusetts’ 2007 Act is unconstitutional because the law is not a permissible time, place, and manner regulation of free speech. McCullen also claims that Supreme Court precedent in Hill v. Colorado, which addressed a similar buffer-zone law, should be substantially narrowed or overruled. Martha Coakley claims that the 2007 Act is necessary to protect RHCF patients and that it still allows protestors the ability to reach their targeted audience even if it restricts how the activists communicate their message. Coakley argues that the 2007 Act is not similar enough to the act in Hill to make this case a proper vehicle for revisiting the decision in Hill. The Supreme Court’s decision could alter the balance between a state’s interest in protecting women who visit RHCFs, and the interests of anti-abortion protesters who want to counsel women approaching these clinics.

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