The Court’s treatment of the attempt of Massachusetts to protect the safety of abortion patients and to prevent obstruction and harassment by prohibiting persons (with the exception of employees, patients, police and the like) from entering 35 feet buffer zones around hospitals that provide abortions raises intriguing issues. On the one hand, it seems reasonable –at least to me – that in this vulnerable moment, an abortion patient should not be compelled to face the torrent of abuse hurled upon them by angry anti-abortion advocates, let alone be forced to walk along a gauntlet of such abuse in close quarters. On the other hand, the plaintiffs in the case built an admirable record showing that they did not seek to abuse, but to counsel alternative in a quiet voice at a time when many patients experience buyer’s remorse, and the record showed that many patients had been persuaded by these plaintiffs to seek alternatives to abortion.
Last Thursday, McCullen v. Coakley authored by Chief Justice Roberts, joined by the not quite liberal wing of this conservative court, ruled that the Massachusetts statute did not meet the standards for place restrictions on speech because it was not narrowly tailored to meet the government objectives. After all, the government could prosecute violators who interfered with the safety of patients, obstructed them from getting through, or harassed them. In addition, the Court reaffirmed cases like Schenck and Madsen where federal courts established buffer zones against those persons who had previously engaged in obstruction. Finally, the Court did not question (but did not reaffirm) a prior case in which persons were prohibited from entering an 8 foot floating buffer zone without the patient’s consent with whom the counselor wished to speak.
Given the record, I think the compromise forged by the Court is not unreasonable though it overstates the efficiency of the alternatives. What is unusual about the majority opinion is that it gives teeth to the narrow tailoring aspect of the time, place, and manner test, teeth not heretofore seen in the hands of the Court. Moreover, this aspect of the test is joined by Justice Alito and would have been joined by the opinion of Justice Scalia, joined by Kennedy and Thomas, JJ., except in a fit of childish pique, he did not formally reach the issue. It is not remarkable that the liberals would want to pour life into the time, place, and manner test. They traditionally have supported dissenters of all stripes. The conservatives, however, in the absence of content discrimination, have a lousy record in this regard. They have devised tests to deny access for dissenters to government property where demonstrations would naturally take place, and the time, place, and manner test has been interpreted in ways that provide music to the ears of those bureaucrats seeking to keep dissenters away. Mike Dorf rightly remarks that if the treatment afforded to the time, place, and manner test in McCullen is here to stay, it will be a significant jurisprudential development. I hope it is here to stay, but I suspect the conservative support for the dissenters in this case is a product of their empathy for those who oppose abortion, an empathy they could not muster in favor of those who protested national policy toward the homeless or for those who offered sexually-oriented speech in their theaters. The Court sat idly by when government authorities nationwide moved to shut down the Occupy Movement. Its behavior in the anti-abortion cases is markedly different. For those who think, I am accusing the Court of favoring their friends while turning a deaf ear to others. You got me exactly right.
More on McCullen probably tomorrow