We're a week deep in the
embarassing U.S. Federal Government shut down, but one thing remaining open? SCOTUS. Yep, today is the first Monday of October and that means one thing: SCOTUS is in session and beginning to hear oral arguments.
One of the cases that will no doubt stir emotions and public opinion is McCullen v. Coakley, an abortion buffer zone case out of the First Circuit.
McCullen v. Coakley -- Procedural History
If this case demonstrates anything, it is the undying perseverance of the anti-abortion movement. This case has been in and out of courts for over a decade when the first challenge was heard by the First Circuit in 2001. The case came before the First Circuit twice before the Supreme Court denied cert.
Two years later, in 2007, the law was revised, which brought with it another series of legal battles, with another cert denial in 2010.
It appears that the third time's the charm in this case because now the Supreme Court has decided to hear this case.
McCullen v. Coakley -- Legal Issues
At issue is a Massachusetts law providing for a 35-foot buffer zone around exits, entrances and driveways of reproductive health care facilities, with certain exemptions for: (1) people entering or exiting the facility; (2) agents or employers of the facility; (3) law enforcement and first responders; (4) construction/utility workers; and (5) people using the public sidewalk to get somewhere else.
The First Circuit rejected the "salmagundi" of First Amendment arguments and held that: "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."
McCullen v. Coakley - Why Now?
Two recent cases have upheld abortion buffer zone laws: Hill v. Colorado (holding an eight-foot buffer zone is valid) and Madsen v. Women's Health Ctr., Inc. (upholding an injunction excluding demonstrators from a 36-foot buffer zone from entrances and driveways).
We're hoping the real reason the Supreme Court took on this case is to give the case finality and get the plaintiffs out of court. But, unfortunately, this may be a weak point for stare decisis as the makeup of the court has a right-leaning tilt as of late.
In September 2005, John Roberts stated at his United States Senate confirmation hearing:
the principles of stare decisis look at a number of factors. Settled expectations is one of them ... Whether or not particular precedents have proved to be unworkable is another consideration on the other side ... I do think it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness.
Let's hope he means it.