By Ana Choi
The Supreme Court has handed down its decision in McCullen v. Coakley, holding that the Massachusetts statute creating a 35 feet buffer zone around abortion clinics is unconstitutional on First Amendment grounds. Although the holding is unanimous, the majority opinion (written by C.J. Roberts and joined by JJ. Ginsburg, Breyer, Sotomayor, and Kagan) and the two concurring opinions (one written by J. Scalia and joined by JJ. Kennedy and Thomas, the other written by J. Alito) reveal a deeply divided court.
The point of contention is whether the statute is content-neutral. This matters because in First Amendment jurisprudence, different levels of scrutiny apply depending on whether or not the statute in question is content-neutral. If the statute is content-neutral, it has to be “narrowly tailored to serve a significant governmental interest”; if it is content- or viewpoint-based, it must be the “least restrictive means of achieving a compelling state interest” (strict scrutiny). The majority found that the statute is content-neutral but is not narrowly tailored enough to survive the second prong of the test. On the other hand, the concurring justices argued that the statute is not content-neutral and therefore must be subjected to strict scrutiny. All of this may seem like an argument over semantics, given that both interpretations lead to the same result of unconstitutionality. However, by finding that the statute is content-neutral, the Court has managed to craft a decision that, in the words of J. Scalia, “has Something for Everyone.”
By enacting the buffer zone statute, Massachusetts was trying to push the frontier set by Hill v. Colorado, where the Court upheld a Colorado statute that created floating buffer zones around individuals in the vicinity of an abortion clinic. With its decision in McCullen, the Court has basically set an outer boundary on how much restriction of speech is allowable under Hill. At the same time, however, it has reaffirmed its decision in Hill by finding that the Massachusetts statute is content-neutral. If the Court had found that the statute is content- or viewpoint-based due to the fact that it only applies to abortion clinics and contains an exception for the employees of the clinics, Hill would have had to be overruled. Thus, McCullen is a defeat for abortion rights supporters insofar as it is a refusal to extend Hill, but it is a victory insofar as it firmly entrenches the minimum bar set by Hill. J. Scalia’s concurrence is really another iteration of his dissent in Hill; he spends most of his concurrence criticizing the “plainly unnecessary and erroneous half” of the majority opinion which finds the statute content-neutral and then resignedly joins the holding at the very end.
Looking at the big picture, it does seem like McCullen is only a slight stumble, as opposed to a change in the tide in the effort to protect those seeking and providing abortion. Based on the facts of McCullen, it would probably have been more surprising if the holding had come out the other way: the petitioners are very sympathetic, there was only one abortion clinic in Massachusetts that was experiencing congestion, and the government did not have a lot of good evidence to support its assertion that its previous statute had not been working despite attempts to enforce it. Thus, the Court basically reprimands Massachusetts for trying to solve its problem in the easiest and most convenient way possible, instead of engaging in a genuine effort to balance abortion rights with freedom of speech. Despite this reprimand, the Court paves the way for more refined attempts to extend Hill in the future. For example, the Court suggests that a New York City ordinance that makes it a crime “to follow and harass another person within 15 feet of the premises of a reproductive health care facility” could be an acceptable alternative to the Massachusetts statute. As we move forward, we can probably expect to see states continuing to experiment and trying to find the right balance within the grey zone that exists between Hill and McCullen.