March 8, 2012
Last month, the U.S. District Court for the District of Massachusetts ruled in McCullen v. Coakley, upholding a 2007 Massachusetts law that creates a 35 foot buffer around any portion of an entrance, exit, or driveway of a reproductive health care facility.
To be clear, the law does not prohibit speech of any kind explicitly; it is very comparable to an anti-loitering law, in that it prohibits hanging around within the 25 foot buffer zone (clinic employees, patrons, police, firefighters, and other such workers are exempt).
The plaintiffs are a group of pro-life activists who regularly demonstrate, pray, and protest outside of various such facilities, often in the hope of dissuading women entering the clinic from having an abortion, and they claim the law interferes with their free speech rights in this regard.
Though this ruling was made at the lowest level in the federal courts (the district court level), McCullen has actually been on quite a wild ride which started in January 2008.
To save you from the gory procedural details, I’ll keep it simple.
After McCullen was filed, the court, without objection from the parties, split the case into two parts: one on the facial constitutional challenge to the statute, and another on the as-applied challenge.
First came the facial challenge, and such a challenge basically means that the plaintiffs were arguing that the Massachusetts statute was unconstitutional “on its face” and that there was no constitutional way to apply the law.
The challenge was unsuccessful at the district court and appeals court levels, and the Supreme Court refused to hear the case in March of 2010.
Thereafter, all that remained to be decided was the plaintiffs’ as-applied challenge – that is, whether the statute is unconstitutional as applied to the plaintiffs’ individual circumstances.
Hot Doc: McCullen v. Coakley
Though this may appear to be an exercise in repetition, it was actually a much easier process the second time around.
Because the same court (along with the court of appeals) already ruled on the bulk of the constitutional issues that would have required consideration had the as-applied challenge existed by itself.
So, in the court’s own words, the only issue that remains to be decided is “whether the statute as applied at the clinics specified in the complaint leaves open adequate alternative channels of communication.”
In other words, the court must determine whether the law leaves open any adequate communicative avenues at the clinics in question.
To figure this out, the court did an extensive factual determination, and looked at things like how well individuals within the buffer zone could read the plaintiffs’ signs or how often they responded to the plaintiffs’ questions or otherwise successfully engage in conversation.
The court also turned what was surely a bragging point for the plaintiffs against them.
First the court determined how many women were persuaded by the plaintiffs not to have abortions since the law went into effect (one plaintiff boasted that she convinced 80 women), and then used that number as evidence that adequate avenues were indeed still available to the plaintiffs to communicate their message.
Thus, the court ruled for the state, and upheld the law.
The plaintiffs are almost certain to appeal, though I doubt their luck will be any better at the court of appeals this time around.
One may question why, in light of how successful some of the plaintiffs have been in convincing some would-be clinic patrons to turn around, the plaintiffs would continued to pursue this action.
True, they were successful even with the law in place.
But imagine how successful they would have been had they been able to crowd around the entrances, just inches from the entering clinic patrons.
Though some might call that intimidation (and preventing that was probably the impetus for enacting the statute), the plaintiffs would likely counter that method is within their rights under the First Amendment.
As such, it’s unlikely that this ruling will be the end of efforts to defeat Massachusetts’ and other similar state laws.