While Thursday’s ruling overturning buffer zones outside abortion clinics pleased pro-life activists, Justice Antonin Scalia thinks it didn’t go far enough.
The court unanimously agreed that the Massachusetts law, which barred protesters and counselors from being within 35 feet of abortion clinics, violated the First Amendment, but denied that it unfairly discriminated against abortion opponents.
“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,” wrote Justice Antonin Scalia, with whom Justices Anthony Kennedy and Clarence Thomas concurred. “There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.”
The law’s opponents argued that the law was what is known as a “content-based” restriction of speech because “it creates speech exclusion zones only at abortion clinics and, as a practical matter, affects speech on only one controversial issue–abortion.” Because the law exempted clinic employees and volunteers from the buffer zone, they also argued that it privileged abortion supporters.
Content-based restrictions must pass strict scrutiny, the highest level of judicial review.
The law’s supporters argued that buffer zones are necessary because of “the severe violence, obstruction and harassment targeting reproductive healthcare facilities,” although, as Scalia pointed out, only one abortion clinic in Massachusetts “is known to have been beset by the problems that the statute supposedly addresses.”
The buffer zones, it should be noted, were demarcated by yellow lines painted on the ground surrounding the facilities — hardly anything that could stop a determined criminal.
“It blinks reality to say, as the majority does, that a blanket prohibition on the use of streets and sidewalks where speech on only one politically controversial topic is likely to occur—and where that speech can most effectively be communicated—is not content based,” wrote Justice Scalia. “Would the Court exempt from strict scrutiny a law banning access to the streets and sidewalks surrounding the site of the Republican National Convention?”
This isn’t the first time Scalia has spoken out against his fellow justices on this issue. In 2000, Scalia dissented from a majority ruling in favor of a Colorado buffer zone law: “What is before us, after all, is a speech regulation directed against the opponents of abortion, and it therefore enjoys the benefit of the ‘ad hoc nullification machine’ that the Court has set in motion to push aside whatever doctrines of constitutional law stand in the way of that highly favored practice.”
“Having deprived abortion opponents of the political right to persuade the electorate that abortion should be restricted by law, the Court today continues and expands its assault upon their individual right to persuade women contemplating abortion that what they are doing is wrong. Because, like the rest of our abortion jurisprudence, today’s decision is in stark contradiction of the constitutional principles we apply in all other contexts, I dissent.”
It is unclear whether the court’s Thursday ruling will overturn the 2000 decision.
