Opinion

McCullen a half-victory for pro-life movement

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Beltway Confidential,Opinion,Judicial Branch,Supreme Court,Abortion,First Amendment,Antonin Scalia,John Roberts,Protests,Kevin Daley

The Supreme Court handed anti-abortion activists a partial victory Thursday in McCullen v. Coakley when it found that a Massachusetts law establishing a 35-foot buffer zone around abortion clinics violated the First Amendment.

Writing for a unanimous Court, Chief Justice John Roberts said the restrictions “burden substantially more speech than necessary to achieve the Commonwealth's asserted interests.” The justices made clear that public sidewalks, and other public places like town squares and parks, are historic venues of speech and enjoy the highest level of First Amendment protection.

However, the justices also made clear that states could still pass laws ensuring safe access to abortion clinics. As SCOTUSblog's Tom Goldstein explains, the court only found the Massachusetts law violated the First Amendment because it broadly prohibited speech on public sidewalks. They did not find that the law violated the free-speech rights of anti-abortion protestors.

That drew a fierce rebuke from Justice Antonin Scalia, whose seething concurring opinion read more like a dissent.

“Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents,” he wrote.

Scalia argued that laws which restrict speech outside of abortion facilities are clearly targeted at suppressing the speech of pro-life protestors. The fact that these laws apply only around abortion clinics was, for Scalia, an important point. “Would the Court exempt from strict scrutiny a law banning access to the streets and sidewalks surrounding the site of the Republican National Convention? Or those used annually to commemorate the 1965 Selma-to-Montgomery civil rights marches? Or those outside the Internal Revenue Service? Surely not,” he wrote.

Scalia had hoped the case would present an opportunity to overturn the Court’s 1999 Hill v. Colorado ruling, which upheld a Colorado law prohibiting individuals from approaching within eight feet of another person outside of an abortion clinic without their consent. However, since the Court made clear abortion clinic protest laws do not violate free speech, the Hill ruling remains in affect.

A handful of other states, including California and New Hampshire, have similar laws.

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