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The First Circuit Court of Appeals rejected a third challenge to the Massachusetts abortion clinic buffer zone law this week, calling the plaintiffs' First Amendment claims a "salmagundi of arguments, old and new."
The statute at the center of the dispute is Mass. Gen. Law ch. 266, § 120E 1/2, which states that "no person shall knowingly enter or remain on a public way or sidewalk adjacent to a reproductive health care facility" (RHCF) within a designated and clearly marked buffer zone.
The buffer zone spans a radius of 35 feet of any portion of an entrance, exit or driveway of an RHCF. Four categories of persons, however, are exempted: Those entering or leaving the facility, employees or agents acting within the scope of their employment, law enforcement officers, emergency responders, construction and utilities workers, and those using the sidewalk or street to reach a destination other than the facility.
The lawsuit, Eleanor McCullen et al v. Martha Coakley et al, was brought by seven people who regularly engaged in antiabortion counseling outside the three clinics in Boston, Worcester, and Springfield, the Boston Globe reports. The plaintiffs claimed that the RHCF buffer zone infringed on their First Amendment rights, limiting the number of patients they were able to counsel about abortion alternatives. They further claimed that RHCF workers and agents were allowed to linger in the buffer zones (outside the scope of their employment duties) to drown out the pro-life plaintiffs' speech, thus demonstrating viewpoint discrimination.
The three-judge panel disagreed, noting, "The Massachusetts statute at issue here is a content-neutral, narrowly tailored time-place-manner regulation that protects the rights of prospective patients and clinic employees without offending the First Amendment rights of others."
So what are the odds that the plaintiffs could win relief from a higher power?
In 2000, the Supreme Court upheld a Colorado abortion clinic buffer zone law, and the Court declined to review a challenge to the Massachusetts RHCF law in 2005. While the composition of the Court has changed since then, it's likely that the First Circuit ruling will stand.