Clash of the Titans: Privacy v. First Amendment
by Zoë T.V. Walker
The topic of abortion is one of the most debated and controversial issues in America. Although it has come a long way since its inception, especially since the Supreme Court ruled it a constitutional right in the landmark case, Roe v. Wade in 1973, it is still very much a volatile issue; particularly when it concerns pro-life advocates and patrons of abortion clinics. The purpose of this paper is to examine the privacy rights of women who choose to visit abortion clinics and the rights of pro-life advocates who petition to abortion clinic visitors.
In 2000,the Massachusetts Legislature passed the Massachusetts Reproductive Health Care Facilities Act, which was an act to promote public safety and protect access to reproductive health care facilities against the battle of anti-abortion protestors and abortion rights advocates (Bill S. 2281, 2015). Originally, the act established an 18- foot radius around the entrances and driveways of clinics where abortions were performed.
“Anyone could enter that area, but once within it, no one (other than certain exempt individuals) could knowingly approach within six feet of another person — unless that person consented — “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person” (Elenora McCullen v. Martha Coakley, 2014).
However, in 2007 some legislators and law enforcement officials of Massachusetts cited the statute as being inapt. Officials such as Massachusetts Attorney General Martha Coakley and Captain William B. Evans of the Boston Police Department expressed their grievances towards the ineffectiveness of the 18- foot radius to patrons of abortion clinics to protesters in the way that protesters were still violating the statute on a regular basis.
In an effort to address the concerns, the Massachusetts Legislature amended the statute with a 35- foot fixed buffer zone. “The 35- foot buffer zone applies only ‘during a facility’s business hours,’ and the area must be ‘clearly marked and posted”’ (Elenora McCullen v. Martha Coakley, 2014). There are certain individuals who are exempted from this statue, they are:
“The Act exempts four classes of individuals; (1) ‘persons entering or leaving such facility’: (2) ‘employees or agents of such facility acting within the scope of their employment’; (3) ‘law enforcement, ambulance, firefighting, constructions, utilities, public works and municipal agents acting within the scope of their employment’; and (4) ‘persons using the public sidewalk or street right- of -way adjacent to such facility solely for the purpose of reaching a discrimination other than such facility’” (Elenora McCullen v. Martha Coakley, 2014).
In January 2008, petitioner Eleanor McCullen sued Attorney General Coakley and other Commonwealth officials citing that the Act infringed on their First and Fourth Amendment rights (Elenora McCullen v. Martha Coakley, 2014).
According to various publications, a large number of cases involving abortion clinics and petitioners have included violence that has resulted in physicians who perform abortions being killed. The case of McCullen v. Coakley is low on the violence spectrum as opposed to previous abortion petitioner cases.
“To protect women and abortion-clinic doctors and staff, Congress in 1994 passed a law called F.A.C.E. — the Freedom of Access to Clinic Entrances Act (18 U.S.C., Sect. 248). The law prohibits injuring, intimidating or interfering with any person who obtains or provides reproductive health services. It provides for civil and criminal penalties against violators” (Hudson Jr., 2012).
McCullen v. Coakley is not the only case that has gone before the Supreme Court in regards to buffer zones outside abortion clinics. The first case, the catalyst that started it all was, Madsen v. Women’s Health Center, which states:
“A Florida state court ordered that anti-abortion demonstrators could not protest within 36 feet of an abortion clinic, make loud noises within earshot of the clinic, display images observable from the clinic, approach patients within 300 feet of the clinic, or demonstrate within 300 feet of the residence of any clinic employee. The Florida Supreme Court upheld the injunction in its entirety” (Hudson Jr., 2012).
The U.S. Supreme Court did uphold the limits against petitioning within 36 feet of the clinic, making loud noises within an earshot of the clinic and being rowdy within 300 feet of an employee’s residence. It was Madsen v. Women’s Health Center that caused the Supreme Court to create a test for cases where speech is prohibited by an injunction. “The injunction will be upheld unless it burdens more speech than is necessary to serve a significant government interest” (Hudson Jr., 2012).
However, in the case of McCullen v. Coakley, the United States Supreme Court ruled that the Massachusetts’ 35-feet abortion buffer zone established under the state’s Reproductive Health Care Facilities Act violated the First Amendment of the U.S. Constitution.
This CBS News video speaks about the Supreme Court ruling which declared the Massachusetts law of a 35-foot protest-free zone a violation of the First Amendment:
The Supreme Court’s decision was received with both positive and negative feelings.
“Mark Rienzi, lead counsel in the case said: ‘Americans have the freedom to talk to whomever they please on public sidewalks. That includes peaceful pro-lifers like Eleanor McCullen, who just wants to offer information and help to women who would like it. The Supreme Court has affirmed a critical freedom that has been an essential part of American life since the nation’s founding’” (McVeigh, 2014).
Attorney General Martha Coakley argued:
“With today’s decision, our work begins again. We are not going to give up our fight to make sure women have safe access to reproductive health care. We will utilize all of the tools we have available to protect everyone from harassment, threats, and physical obstruction. I will work with the governor, legislature and advocates to explore additional legislative tools that also meet the court’s requirements” (McVeigh, 2014).
In a similar case, Hill v. Colorado (2000), a statute limiting protest within eight feet of a person entering a health care facility was ruled as constitutional by the U.S. Supreme Court as follows.
In a 6–3 opinion by Justice Stevens, the Supreme Court upheld a 1993 Colorado statute that regulates speech-related conduct within 100 feet of the entrance to any health care facility, which includes abortion facilities, making it unlawful within the regulated areas for any person to “knowingly approach” within eight feet of another person, without that person’s consent, “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person … (Hill v. Colorado, 2015)
The McCullen v. Coakley and the Hill v. Colorado cases are similar. However, in the case of Hill v. Colorado, their buffer zone statute was upheld. After the ruling in McCullen v. Coakley, the question was, would the ruling in Hill v. Colorado be overruled?
The Justices who were part of the initial decision of the ruling in the Hill case have since then either died or retired. It would be a decision by the new Justices to grant certiorari for whether Hill should be overruled or not. In the McCullen case, “the majority concludes that the Massachusetts law, although targeting abortion clinic protests, is content- and view-point neutral, and therefore not subject to strict scrutiny under the First Amendment” (Russell, 2014).
Although similar, there are distinct differences between the Colorado law in Hill and the Massachusetts law in McCullen. The content neutrality of both case are significantly affected by the statutory differences. Hill focused on the constitutionality of a floating buffer zone, which banned close physical approaches with consent in the surrounding area of health care facilities. Whereas, McCullen focused on how constitutional it was to have fixed exclusive zones at abortion clinics.
In both cases, the decision is split into two sides. Those for abortion and those who against it. However, the bigger picture is about two essential rights of an individual, the right to privacy and the right to speech. Women should not have to be a victim of pro- life protest if she decides to visit an abortion clinic, this is essentially her right which is constitutionally upheld thanks to cases such as Roe v. Wade and also the right of privacy: personal autonomy clause of the Fourteen Amendment. On the other hand, protestors should not be victims of prior restraint if they choose to peacefully assemble and gently attempt to converse with patrons of abortion clinics. It is about finding the right balance between respecting the privacy rights of an individual and respectfully exercising the right of the First Amendment.
Clash of the Titans: Privacy v. First Amendment by Zoe’ Walker is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.
References
Bill S. 2281. (2015). Retrieved from Massachusetts Legislature : https://malegislature.gov/Bills/188/Senate/S2281
Elenora McCullen v. Martha Coakley. (2014, June 26). Retrieved from http://law2.umkc.edu/faculty/projects/ftrials/conlaw/McCullenvCoakley.html
Hill v. Colorado . (2015). Retrieved from The Heritage Foundation : http://www.heritage.org/about/mission/lfa/initiatives/rule-of-law/judicial-activism/cases/hill-v-colorado
Hudson Jr., D. L. (2012, September 16). Abortion protest & buffer zones . Retrieved from First Ammendment Center : http://www.firstamendmentcenter.org/abortion-protests-buffer-zones
McVeigh, K. (2014, June 26). Abortion clinic ‘buffer zones’ violate first amendment — supreme court. Retrieved from The Guardian: http://www.theguardian.com/law/2014/jun/26/buffer-zone-rule-abortion-clinics-supreme-court
Russell, K. (2014, June 26). What is left of Hill v. Colorado . Retrieved from Supreme Court of the United States Blog : http://www.scotusblog.com/2014/06/what-is-left-of-hill-v-colorado/
