On June 26, the U.S. Supreme Court unanimously struck down a Massachusetts buffer zone law that had prohibited protesters in that state from standing within 35 feet of facilities where abortions are performed. It said the law violated the First Amendment by burdening
“substantially more speech than necessary to achieve the Commonwealth’s asserted interests.”
The decision will affect Maine’s largest city, which has an ordinance that prevents protesters from standing within 39 feet of the Planned Parenthood clinic on Congress Street. The Supreme Court decision on the Massachusetts law means Portland will have to rethink its local rule.
The Portland City Council unanimously passed the emergency amendment to the city code in November 2013 with the idea that protesters could still be heard and seen, even if they had to stand a certain distance away from reproductive health care facilities’ entrances, exits and driveways. But, in Massachusetts, the Supreme Court found that the buffer zone deprives some people of their ability to communicate with arriving patients through “close, personal conversations and distribution of literature.”
According to the court, the calmer individuals, unlike loud protesters, “seek not merely to express their opposition to abortion, but to engage in personal, caring, consensual conversations with women about various alternatives. It is thus no answer to say that petitioners can still be seen and heard by women within the buffer zones. If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners’ message.”
So protesters — who are more likely to intimidate patients than ever change their views on abortion, by screaming or videotaping them — are making it difficult for quieter individuals to talk one-on-one with approaching patients. The protesters, by the court’s logic, are suppressing the voices of others trying to persuade women not to terminate their pregnancies.
It should be noted that this irony remains regardless of whether there are buffer zones. It is difficult to hold a conversation with a woman when a protester is telling her, “We will wrap your legs in barbed wire, and you will burn in hellfire,” as one has said. For many protesters, the Supreme Court case offers lessons in civility.
It also means changes for Portland councilors and Planned Parenthood, which will have to make important decisions in the days ahead about how to respond. They have some
options; each has challenges.
For instance, the city could pursue “floating buffer zones” that require several feet of space around each patient walking into the health care center. But they would be difficult to enforce anywhere, let alone on an urban sidewalk.
The city could ramp up its police presence, which the justices suggested for Massachusetts: “Some localities, for example, have ordinances that require crowds blocking a clinic entrance to disperse when ordered to do so by the police, and that forbid the individuals to reassemble within a certain distance of the clinic for a certain period.” Will Portland, or Planned Parenthood, be willing to pay for more police?
The court also suggested that Massachusetts — and therefore Maine — could pass a law similar to the federal Freedom of Access to Clinic Entrances Act. That law prohibits the intentional threatening or use of violence against patients and health care workers at reproductive health clinics. If Maine passed such a law, people could more easily seek judicial orders to stop the damaging activities. But would such a bill succeed in the Maine Legislature?
Or Planned Parenthood could move to a new location where there isn’t a public thoroughfare directly outside its doors. Supporters won’t like the idea, and the agency has devoted much time and energy maintaining its current spot, but it is an option to ensure patients’ safe access to health care if other options fail.
If Planned Parenthood did move to a more private location, protesters would likely lose the ability to have legal, close communication with patients, which was what the Supreme Court wanted to protect. It’s just one of many ways the court’s decision could affect not just reproductive health care facilities but the people who oppose their work, too.