Mass. buffer zone backers mull options after Scotus ruling
06/27/2014 01:02:13 PM EDT
By Matt Murphy and Andy Metzger
STATE HOUSE NEWS SERVICE
STATE HOUSE -- The U.S. Supreme Court's decision on Thursday to strike down the state's buffer zone around abortion clinics thrust a new issue onto the Legislature's plate with Democratic leaders pledging to pursue a legal remedy to the ruling that would protect free speech, but also preserve the unimpeded access for women to reproductive health services.
The Supreme Court, in a unanimous decision on Thursday, voided the state's seven-year-old law that created a fixed, 35-foot buffer zone outside family planning clinics in Massachusetts. In McCullen v. Coakley, plaintiffs challenged the law on the grounds that it violated the free speech rights of protesters to counsel patients as they enter clinics.
Gov. Deval Patrick, who signed the 2007 law, called the decision "disappointing" and said he would work with his legal team to develop a "fix" with the cooperation of the House and Senate that could pass before the end of July.
"I think the Legislature shares the concern about how to strike a balance between the ability of women to exercise their Constitutional rights and the ability of objectors to exercise theirs. We thought that the previous bill did that. The Supreme Court obviously disagreed. They said there's a different kind of balance to strike and we're going to try to do it before the session ends," Patrick told reporters.
>>> For video of Patrick's reaction to the ruling, go to:
While the state's political leaders assailed the decision, Massachusetts Citizens for Life thanked the country's highest court for protecting free speech rights.
"This is a victory for all citizens who value their First Amendment rights and for clinic-bound women who might need someone to talk to," said Massachusetts Citizens for Life President Anne Fox. She was not available for further comment because she is attending the National Right to Life Convention in Kentucky, according to a staffer.
The group said the ruling "reiterates tradition in this country that the sidewalk is the vehicle for free speech," and argued that Massachusetts has laws on the books that prohibit blocking entrances and harassing people trying to enter clinics. The Supreme Court ruling suggested the state failed to prove that other, less restrictive measures had failed to protect women's access to reproductive health clinics.
The voided law, which was co-authored by former Reps. Carl Sciortino and Marty Walz, who now leads Planned Parenthood League of Massachusetts, updated a previous law signed by the late Gov. Paul Cellucci that created an 18-foot buffer around health clinics that provide abortion services, but allowed for a six-foot floating buffer zone that protestors could enter if they interpreted consent from a clinic patron.
Critics argued that the "floating" buffer zone was unenforceable, and Gov. Deval Patrick in his first year in office signed off on an expanded, fixed protest-free zone around clinics.
Roger Evans, senior legal counsel for Planned Parenthood, said the court's ruling likely made all fixed buffer zones "endangered species," but suggested a return to the 2000 "floating buffer zone" law in Massachusetts could pass muster.
"Those seem at least for now to be okay," Evans said.
Attorney General Martha Coakley said the idea of returning to a "floating" buffer zone will be reviewed as an option moving forward, but noted that the previous law "didn't work very well" because it created a lot of uncertainty about what is allowed.
Coakley appeared at an afternoon press conference with Walz, NARAL Pro-Choice Massachusetts Executive Director Megan Amundson and Liam Lowney, whose sister Shannon was killed 20 years ago while working at a Planned Parenthood clinic in Brookline by John Salvi.
>>> For video of Coakley's press conference with Walz, go to: http://www.statehousenews.com/video/14-06-26ag/
For a publishable photo of Coakley from the availability, go to www.statehousenews.com <<<
The Supreme Court on Thursday found the state law unconstitutionally restricted speech on public ways and sidewalks. Chief Justice John Roberts, writing for the majority, found that "buffer zones serve the Commonwealth's legitimate interests in maintaining public safety on streets and sidewalks and in preserving access to adjacent reproductive healthcare facilities," but wrote that they also "impose serious burdens on petitioners' speech, depriving them of their two primary methods of communicating with arriving patients: close, personal conversations and distribution of literature."
The decision suggested Massachusetts could accomplish its goal of preserving public safety and access to clinics by imposing criminal and civil sanctions for "obstructing, intimidating, or interfering with persons obtaining or providing reproductive health services," or enacting a law requiring crowds blocking a clinic entrance to disperse for a limited period when ordered to do so by the police.
Walz, in a conference call with Planned Parenthood's senior legal director, said her team would be looking at existing laws and local ordinances that could be used to guarantee unmolested access to clinics, as well as exploring other options that would require legislative approval. Coakley said her civil rights division is prepared to seek court injunctions against anyone who harasses women seeking health care, and will work with law enforcement.
"The Supreme Court has taken away an essential measure to protect public safety and health care access in Massachusetts," Walz said, later adding, "We will exhaust all options to protect the safety of all persons accessing reproductive health."
Both Coakley and Walz said the decision preserves the state's prohibition on the intentional blocking of clinic entrances or harassing or making threats to patients. Walz said since the decision was issued Planned Parenthood has fielded many calls from people volunteering to be patient escorts. She said she intends to work with police to ensure that remaining laws protecting access to clinics are enforced.
The ruling was the second setback this week for Coakley, whose office argued the state's case before the Supreme Court. Earlier in the week the state's Supreme Judicial Court overruled her legal analysis by allowing an initiative petition repealing expanded casino gambling in Massachusetts to proceed to the ballot.
"We win some. We don't win them all . . . ," Coakley said. "I am really proud of what our office was able to do with a particular Supreme Court that, I think, from the beginning was hostile to this idea. They have a particular agenda, for some members, around the exercise of rights and reproductive rights. There's a concurring opinion that evidences that hostility in this case."
Justice Antonin Scalia wrote a separate, but concurring opinion with the majority suggesting the court should have gone further with its ruling.
Coakley, who attended a bill-signing ceremony at the State House for a minimum wage increase, spoke with House Speaker Robert DeLeo and Senate President Therese Murray at the event about the need to take action.
"I and many of the advocates, including Planned Parenthood and the Legislature, will continue to fight for all women, all people, to proceed to get health care in a safe, unharassed fashion," Coakley said. "This fight is just beginning again."
U.S. District Judge Joseph Tauro twice rejected claims by pro-life advocates that the 2007 law was unconstitutional and violated their free speech rights, and his decisions were upheld in January by a three-judge panel for the U.S. First Circuit Court of Appeals.
Murray said she has spoken with her office's attorneys who believe there is room within the court ruling for lawmakers to respond. "I'm not happy. Not happy at all," Murray said. "We're going to do something."
DeLeo said he was unsure, without having had the chance to read the full ruling, what options might be available to lawmakers, but he expressed his support for trying to pass a legislative response before the end of the session that would protect those seeking health services from "physical attacks."
"No matter where you may stand on the issue of abortion or whatnot, I think the most important thing we have to address is the issue of public safety," DeLeo said.
Rep. Gloria Fox, a Boston Democrat, said "the struggle continues" and the decision "energizes" her to work toward a law that can remain on the books.
Rep. Elizabeth Poirier, a North Attleboro Republican, said she would be "open" to reviewing whatever legislation is proposed to replace the law, and said both safety and free speech need to be ensured.
"People certainly have a right to go into these facilities. There's no question about that. But the rights of the people who are trying to speak to them and inform them also have a right of free speech, and I don't know what would be considered a proper boundary," Poirier told the News Service. She said, "As you're walking down the sidewalk people hand you things all the time. So I think obviously there should be no harassment. There should be no brow-beating or anything like that, but handing out information certainly can't be harmful."
Poirier said she has spoken to people who changed their mind about seeking services at family planning clinics after speaking to activists outside.
Rep. Denise Provost, a Somerville Democrat, said passing new legislation in the five weeks before the July 31 end of formal sessions would be challenging, but noted the Legislature acted with quick resolve earlier this year to pass a new law banning surreptitious upskirt photography, after the Supreme Judicial Court ruled that act wasn't actually addressed in the existing state statute.
"As the upskirting bill showed, we can move quickly when we are motivated," Provost told the News Service. She said, "There's got to be some distance which is constitutionally acceptable."
One former elected official who didn't want to be named questioned whether, in light of Thursday's decision, laws that establish a buffer zone for politicking around polling locations on election day would pass constitutional muster.
Walz went further, questioning whether the buffer zone that shields the Supreme Court itself would clear the bar set by the court on Thursday.
The decision from the nation's highest court arrived Thursday morning as the most powerful pols in Massachusetts gathered with labor leaders and activists to celebrate the signing of a law that will give the Bay State the highest minimum wage, $11 per hour, of any other state in the country.
"I think it's a sign of the times. We have a lot of work to do," said Sen. Dan Wolf, about the Supreme Court decision, adding that the "step backwards" would not dim the "enthusiasm" he felt for the minimum wage legislation.As news spread, a cavalcade of condemnation and expressions of disappointment issued from the campaigns of Democrats seeking statewide office. Democratic candidate for attorney general Warren Tolman said the decision highlights the need to "balance" free speech and the right to access abortion, while his opponent in the primary, Maura Healey, said the decision is "misguided" and "puts women in Massachusetts at risk."
"It is unconscionable that the justices allow more than 100-feet of buffer zone outside their own courthouse or around polling places, but deny a few seconds of privacy to women going to see their doctors," Healey said in a statement.All three Democrats running for governor expressed disappointment with the decision while Republican frontrunner Charlie Baker "hopes all interested parties will work together in quickly crafting new legislation that legally protects everyone's rights," according to a spokesman. Baker's running mate, former Rep. Karyn Polito, voted in favor of the buffer zone in 2007.
Independent Evan Falchuk called the law "well-intentioned but hugely flawed" and said he hoped the Legislature would pass a law that protects the safety of patients and workers.
Senate Ways and Means Chairman Stephen Brewer said he could only speak for himself when asked if the Senate would act to create a new law around the issue.
"We did it once before," Brewer told the News Service. He said, "In the past I supported it as a public safety measure."