Senator Blumenthal noted that a woman’s right to make health care decisions, including the ability to obtain abortions, without government or public interference is presently facing an unprecedented number of threats and legal challenges. For example there are restrictions currently being enacted by state and local governments have the effect of deterring women from making fundamental reproductive choices. There should be no regulation applied to abortions that is not similarly applied to comparable medical procedures, the Senator noted.
A panel discussion featuring some of the foremost scholars and practitioners in the realm of reproductive rights preceded Senator Blumenthal’s comments and was moderated by Juliet Eilperin, White House Correspondent for the Washington Post. Roger Evans, Senior Director of Public Policy Litigation and Law at Planned Parenthood Federation of America, noted that the next major legal battle in this arena will be focused on a rising number of state laws that require abortion providers to have hospital admitting privileges.
Last November, Planned Parenthood of Greater Texas (and assorted affiliates) filed an emergency application with the Supreme Court to vacate a stay granted by the U.S. Court of Appeals for the Fifth Circuit, which temporarily blocked the permanent injunction that federal district court judge Lee Yeakel placed on Texas’ H.B. 2. The law requires that, among other anti-choice restrictions, doctors preforming abortions must have admitting privileges at a hospital within 30 miles of the abortion clinic. The Supreme Court rejected that application, but Evans stated that it was “inevitable” that the issue of admitting privileges would eventually make it before the Court.
Last week, I attended the argument before the U.S. Supreme Court in McCullen v. Coakley, a case challenging Massachusetts’ law creating a 35-foot buffer zone around abortion clinics.
The law limits anyone from occupying the space around the entrance or driveway of an abortion clinic. These limits apply whenever people identify as pro-choice or anti-choice, and have exceptions for patients, those accompanying them into the clinic, clinic staff, those on official business, and pedestrians who happen to cross a clinic’s path while on their way somewhere else. Anyone can still distribute literature, hold signs, protest, or engage in conversation—just not within that 35-foot neutral zone to let patients through.
During the oral arguments, Justice Antonin Scalia acknowledged that “if it was a protest, keeping them back 35 feet might not be so bad.” But then he added that this particular case is, in his view, “a counseling case, not a protest case.”
This distinction is not warranted. Whether people shout loudly or talk softly is not the point. The statute’s goal is to diffuse congestion, not regulate speech. It simply ensures that patients have safe passage into clinics when exercising their own constitutional rights.
In the decades since abortion was legalized in the U.S, doctors and clinic staff have been constantly threatened with harm, patients have been routinely harassed, and abortion clinics have suffered bombings, arson, and blockades. In fact, according to the National Abortion Federation, there have been eight murders, 17 attempted murders, 42 bombings, 181 incidences of arson, and thousands of incidents involving other criminal activities since 1977.
by Alan E. Brownstein, Professor of Law, Boochever and Bird Chair for the Study and Teaching of Freedom and Equality, UC Davis School of Law
Massachusetts law creates a 35 foot buffer zone around the entrances of clinics that provide abortion services. As written and applied, the law prohibits even a single individual standing on a public sidewalk near a clinic’s entrance from calmly trying to counsel women against having an abortion. During last week’s oral argument in McCullen v. Coakley, many Justices appeared to be convinced that a regulation prohibiting such seemingly quiet and persuasive speech violated the First Amendment.
Massachusetts argued the law was a permissible content-neutral attempt to eliminate congestion preventing people from safely entering and leaving clinics. The regulation satisfied intermediate level scrutiny, the appropriate standard of review, because the law served an important state interest, allowed adequate alternative avenues of communication, and did not ignore less restrictive alternatives – that is, the law did not burden substantially more speech than necessary to further its purposes.
The Court seemed unconvinced. Several Justices returned repeatedly to a single inquiry: If the state’s goal was to prevent people from blocking access to the clinics, why couldn’t it draft a narrower, more precise law prohibiting obstruction? One or two peaceful “counselors” would not block access to a clinic. Yet the challenged law substantially burdened their ability to communicate their message. Perhaps loud protestors with signs could communicate their message 35 feet away from the targeted audience, but soft spoken counselors needed to be closer to the women they were addressing. Even Justice Kagan, who seemed somewhat sympathetic to the state’s position, suggested the 35 foot size of the buffer zone was problematic.
The remarkable silence of Chief Justice John Roberts cast a pall of uncertainty over oral arguments in McCullen v. Coakley, heard yesterday morning at the Supreme Court. Adding to the unusual environment was Justice Elena Kagan, who appeared to seek a middle ground between upholding the law at hand and scrapping it altogether.
That law is a 2007 regulation enacted by the Massachusetts state legislature, mandating a 35-foot “buffer zone” around all reproductive health centers. The petitioner, 77-year-old Eleanor McCullen, has spent every Tuesday and Wednesday morning for the last 13 years outside one such center: the Planned Parenthood clinic on Commonwealth Avenue in downtown Boston. She claims the buffer zones infringe upon her First Amendment right to free speech by making her communication with patients less effective. “It’s America,” McCullen told NPR. “I should be able to walk and talk gently, lovingly, anywhere with anybody.”
Mark Rienzi, attorney for Ms. McCullen, advanced the argument that buffer zones are unconstitutional. Under the test for “time, place and manner” restrictions as outlined in Grayned v. City of Rockford, he explained, the buffer zones were not narrowly tailored to the state’s stated interest in preventing obstruction and congestion. For example, in response to objections from Justice Sonia Sotomayor, Rienzi noted that laws governing military funeral protests were aimed specifically at acts that disrupt “the peace and good order” of the funeral, as opposed to all activity.
Justice Ruth Bader Ginsburg was first out of the gate with a nod to the “considerable history of disturbances” outside of reproductive health clinics and the state’s inability to pick out bad actors in advance of any given moment. Justice Stephen Breyer acknowledged the limitations of the judiciary, reminding counsel that “we’re not legislators” and suggesting that the Court did not have the basis to demand more than a “reasonable record” from policymakers. And Justice Kagan took issue with a hypothetical situation proposed by Mr. Rienzi, which featured animal rights activists who wish to persuade the employees of a slaughterhouse. “You must have used it for me to say, oh, that’s terrible,” she said. “But my reaction was kind of, ‘What’s wrong with that? Just have everyone take a step back.’”
On December 31, while many Americans were celebrating the arrival of 2014, Supreme Court Justice Sonia Sotomayor (who herself would inaugurate 2014 by leading the famed Times Square ball drop) ended 2013 by erecting a judicial roadblock to an important provision of the Affordable Care Act (ACA). Earlier today the Obama administration answered Sotomayor with a defense of the policy that requires most companies to provide health care plans with access to contraceptives to their workers.
Sotomayor had temporarily enjoined the federal government from enforcing the contraceptive coverage mandates against the Little Sisters of the Poor, as well as other Catholic non-profit groups who use the same health care plan called the Christian Brothers Employee Benefit Trust, who had brought suit claiming that the provisions violated the Religious Freedom Restoration Act (RFRA). The mandate was to go into effect on January 1. As the Supreme Court justice who oversees emergency matters emanating from U.S. Court of Appeals for the Tenth Circuit, Sotomayor issued the order after the Tenth Circuit had denied the request for an injunction earlier on New Year’s Eve.
The U.S. Department of Justice argued in its brief opposing an injunction of the ACA’s contraception policy that there is a simple distinction to be made between the present case and the Hobby Lobby and Conestoga Wood cases that the Court recently agreed to hear on the issue -- that the Little Sisters of the Poor “are eligible for religious accommodations set out in the regulations that exempt them from any requirement ‘to contract, arrange, pay, or refer for contraceptive coverage.’ They need only self-certify that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, and then provide a copy of their self-certification to the third-party administrator of their self-insured group health plan.” (citations omitted).
For the government, this case is not about religious accommodations, but rather, “whether a religious objector can invoke RFRA to justify its refusal to sign a self-certification that secures the very religion-based exemption the objector seeks.” Furthermore, the government points to decisions of lower courts and notes that the church healthcare plan at issue is exempted from regulation under the Employee Retirement Income Security Act (ERISA).
With the government’s response now before the Court, a decision from either Justice Sotomayor or the full Court should come shortly.
For more on Hobby Lobby and Conestoga Wood, you can read tworecentACSblog posts from BYU law professor Frederick Mark Gedicks. For more on RFRA, UNLV law professor Leslie Griffin recently examined the law’s constitutionality.