Freedom of Speech v. Right to an Abortion…..I Mean, "McCullen v. Coakley"

Yesterday, the Supreme Court heard the arguments for the case of McCullen v. Coakley. In Massachusetts state law, it is illegal for anyone who is not a clinic patient, staff member, government agent, or an individual using the sidewalk to pass by to enter a thirty-five foot buffer zone around a "reproductive health care facility," i.e., an abortion clinic. The premise behind this law is to prevent the practice of pro-life activists known as "sidewalk counseling." The plaintiff is asserting that buffer zones are an impediment of free speech, whereas the defendant contends that the buffer zones are a reasonable, constitutional regulation to prevent intimidation, violence, and harassment (see ACLU amicus brief).

I don't want to get into a debate about whether abortion should be considered a right, because courtesy of Roe v. Wade, it is a de jure right. What I want to delve into is whether it is the sidewalk counseling or the buffer zone that is the infringement on freedom. Under the nonaggression axiom, the general idea is that "your freedom ends where mine begins." In this country, freedom of speech is considered sacrosanct. It takes a pretty exigent circumstance, such as "shouting 'Fire!' in a crowded theatre" (see Schenck v. United States), for there to be limitations on free speech, and even then, they're minimal.

This is not the first time buffer zones have been enacted. Funerals, polling places, and political conventions all have buffer zones. Even the Supreme Court has a buffer zone for protesters! With specific regards to abortion, the Supreme Court case of Hill v. Colorado (2000) allows for bubble zones, which creates a 100-foot zone around a healthcare facility in which an individual cannot approach a person that is eight feet away without the individual's consent. In my view, the bubble zone creates two issues: 1) the person within the bubble zone might not even be heading to the clinic, and 2) more importantly, you don't know whether the person is a willing listener until you ask.

The buffer zone could even be in compliance with time/place/manner restrictions, although that would not be the case because employees advocating for abortion services could speak within the buffer zone and anti-abortion individuals could not. Even if there is a legal precedence for making a free speech zone, and even if one argues that the government should regulate a public area [like a sidewalk], should Massachusetts' buffer zone be upheld?

As the Cato Institute points out, the buffer zone does nothing to distinguish between peaceful anti-abortion activists and the violent ones. The law does nothing to target specifically problematic behavior, e.g., anti-abortion violence, conduct that blocks physical access to clinics. Floyd Abrams, who is a pro-abortion constitutional law expert, realizes that this buffer zone does not serve a narrow purpose and does not pass strict scrutiny. Unless the Massachusetts state government can create a law that differentiates between nonviolent and potentially violent individuals, Massachusetts' law is nothing more than an infringement on the First Amendment.