This is a weird opinion. That's not to say that it is correct or incorrect: facing a balance between free speech rights of peaceful anti-abortion protestors and a woman's right to obtain reproductive health services, the Court sided with free speech unanimously, while five justices suggested that there might be other avenues for protecting those headed in to abortion clinics.
But just a few years ago, the Court upheld a buffer zone in Colorado, one which was barely mentioned in the McCullen opinion. Also, the opinion bends over backwards to hold that the statute is content-neutral, only to strike it down anyway under a lower standard of scrutiny as insufficiently tailored, all while Justice Scalia protested in concurrence.
Massachusetts 35-Foot Buffer Zone Falls
We suppose, in retrospect, that this isn't a huge surprise: the Court has shifted rightward since 2000, when Hill v. Colorado was decided, and this law involves a strict 35-foot zone around the clinic, rather than Colorado's 8-foot buffer for individuals as they went to and from the clinic. It's enough of a distinction to make a difference apparently, even if the majority oddly didn't mention Hill, for better or worse.
But the majority opinion, penned by Chief Justice Roberts, holds that a law that only applies to protests near abortion clinics, and only effects abortion-related speech, is content-neutral. The opinion then goes on to strike down the law as not narrowly tailored enough, citing without explicitly approving, New York's "follow and harass another person within 15 feet" rule, as well other federal and state criminal harassment laws as possible alternate means to control unruly protestors.
Though Justice Scalia, Kennedy, and Thomas agreed with the judgment, Scalia lamented alleged special treatment of abortion-related speech in concurrence:
The second half of the Court's analysis today, invalidating the law at issue because of inadequate "tailoring," is certainly attractive to those of us who oppose an abortion speech edition of the First Amendment. But think again. This is an opinion that has Something for Everyone, and the more significant portion continues the onward march of abortion-speech-only jurisprudence.
What About Colorado and Elsewhere?
As noted, the Court barely mentions Hill v. Colorado, where the Court upheld a floating eight-foot bubble buffer around those headed to and from abortion clinics. In his concurrence in the judgment, Scalia argues that Hill should be overturned, citing his own dissent in that case after arguing that the Massachusetts law is content based and subject to strict scrutiny.
By not explicitly overruling HIll, the majority leaves the Colorado law intact. But by not reaffirming it, and by arguing in favor of criminal harassment laws rather than protest buffers, it opens the door for a challenge. Meanwhile, similar protest buffers around the country are getting a second look: San Francisco has a 25-foot rule, as does New Hampshire, while Maine's 39-foot rule is almost certainly dead in the water.
- McCullen v. Coakley (FindLaw's Caselaw)
- Obama Loses in Recess Appointment Case; So Does Scalia (FindLaw's U.S. Supreme Court Blog)
- SCOTUS: Cell Phone Searches Incident to Arrest Require a Warrant (FindLaw's U.S. Supreme Court Blog)