Editors’ Note: This article presents one angle on a case before the Supreme Court, but there are opposing views. Part of the context for the Massachusetts law is the harassment of women visiting clinics providing reproductive health services including abortions, and violent attacks on these clinics and health care providers – including murders, which this article does not go into. We invite readers to post comments.
BOSTON – A high-profile case keeping campaigners about abortions at least 35 feet away from Massachusetts reproductive clinic doors could impact union organizers trying to persuade workers or dissuade strikebreakers.
The case, which the Supreme Court heard on Jan. 15, involves whether the 35-foot limit, which the state enacted after some protests at clinics elsewhere, violates the First Amendment to the U.S. Constitution and its free speech guarantees.
The First Amendment limit also concerns unions and their qualms came up briefly during oral argument before the nine justices.
McCullen v. Coakley challenges a Massachusetts law that bars, from the 35-foot zone, everyone except emergency personnel, people entering or leaving the clinic or just crossing the zone to go elsewhere, and clinic staff “acting within the scope of their employment.”
The state says its law prevents congestion around clinic entrances, often caused by so-called sidewalk counselors [in reality anti-abortion activists) trying to persuade women not to have abortions.
In a friend-of-the-court brief filed with the justices before the hearing, the AFL-CIO said the 35-foot zone would also prevent union organizers from communicating effectively with workers entering or leaving the clinics, thus curbing the organizers’ free speech rights.
Justice Samuel Alito brought that up while questioning Massachusetts Assistant Attorney General Jennifer Miller, who argued for the state law. Alito said the state law could affect union efforts to dissuade replacement workers during a strike.
Miller responded that, though “labor actions are protected by federal law,” under the Constitution, the Supreme Court had “repeatedly upheld restrictions on labor activity.”
Mark Rienzi, the attorney for Eleanor McCullen, the anti-abortion sidewalk counselor who challenged the state law, told the justices the first amendment absolutely protects quiet “consensual conversation” on a public sidewalk. That’s the type of conversation union organizers often have with workers, according to the fed’s brief.
If a state may sometimes prohibit speech on public sidewalks, when a law substantially burdens first amendment values, it must have the smallest impact of any workable alternative, Rienzi said. Here, Rienzi said, an “inability to speak with people close to the clinic has a dramatic effect” on his clients’ “ability to reach their audience.”
Justice Anthony Kennedy seemed sympathetic. Before the law’s enactment, Kennedy said, McCullen “had meaningful communication with over 100 women going into the clinic.”
Given its impact on free-speech values, Rienzi argued, the law reaches far beyond its concerns. Injunctions against specific individuals can address intentional blockages. But Massachusetts’ law is unique in impacting unintended or spontaneous blockages, he added.
Alito also noted that the 1st amendment bars discrimination against speech based on the point of view of that speech, yet that could happen in Massachusetts.
Clinic staff could enter the buffer zone and, once inside, claim to a prospective patient that the clinic has a good safety record, Alito said. An anti-abortion sidewalk counselor could not enter the buffer zone to claim the opposite.
The “point of view” argument was difficult for Miller. She countered that patient escorts get trained “not to engage in that kind of speech,” that a worker acting within the scope of his or her employment would have “a permissible purpose” for entering the buffer zone, and that promoting the clinic would just be “performing her job.”
Miller observed the first amendment does not guarantee protection for “any specific form of communication,” not even “close, quiet conversations” on public sidewalks. And Deputy Solicitor General Ian Gershengorn, on behalf of federal government – which sided with Massachusetts – noted courts upheld buffer zones around political conventions.
Since Massachusetts does not base its law on the content of anyone’s speech, Miller continued, as long as the law leaves open ample alternative channels of communication, it need not perfectly address its concerns in every single instance.
And Gershengorn told the justices anti-abortion counselors have “the entire length of the sidewalk,” where the law permits for “quiet counseling (and) leafleting,” only limiting interaction in “the last four to five seconds” before patients enter a clinic.
In 2000, the justices upheld a Colorado clinic buffer zone law, but the court’s lineup has greatly changed since then. A decision will occur by the end of June.