If the bill passes, only time will tell whether it can survive another free speech challenge. But advocates for abortion rights say it’s responsive to the McCullen v. Coakley decision and could even become a model for other states.
The bill allows police to order individuals to withdraw if they substantially impede access to a reproductive health-care facility. Those individuals would have to stay outside a 25-foot boundary for a maximum of eight hours.
The proposed law also prohibits intimidating, threatening, or injuring staff or others accessing the facility, as well as interfering with vehicles entering, exiting, or parking. A combination of criminal charges and civil actions, such as injunctions and monetary damages, can follow violations.
Before the state’s 2007 buffer-zone law, patients trying to access reproductive health clinics faced protesters who blocked their cars, blocked their way through doors, or otherwise intimidated them, and such harassment has been on the rise since McCullen v. Coakley, says Marty Walz, president and CEO of Planned Parenthood League of Massachusetts (PPLM).
The Massachusetts Senate passed the new legislation Wednesday, and the House is expected to take it up this month.
“This bill carefully balances public safety and access considerations with free speech rights in mind,” said the bill’s sponsor, state Sen. Harriette Chandler (D), in a statement.
Not so, says Philip Moran, a Salem, Mass., attorney representing Eleanor McCullen, a sidewalk counselor who attempts to engage in individual conversations with women outside clinics to get them to consider options other than abortion. The new bill “is probably more draconian than the law that [the court] overruled,” says Mr. Moran, who notes he will challenge the legislation if it passes.
The bill would give police too much discretion to say someone is impeding access, he says: “It’s really a backdoor way to establish another buffer zone.”
A court could consider that point, because the First Amendment does prohibit vague regulations of expressive conduct, says Leslie Kendrick, a professor at the University of Virginia School of Law in Charlottesville.
Buffer zones, on the other hand, are not vague “and do not open the possibility of arbitrary or discriminatory enforcement,” she says. So “in striking that down, the court is pushing Massachusetts toward a more tailored and nuanced solution. But with nuance comes some risk of vagueness.”
In line with what the Supreme Court advised, “nothing in the bill is focused on speech; it’s all about the protesters’ behavior,” Ms. Walz says. Under the proposed law, if Ms. McCullen wants to engage in conversations near the clinic that don’t intimidate patients, she’ll be free to do so without penalty, Walz says.
The legislation would also give health-care providers the ability to seek civil injunctions against people who violate it – something Walz particularly likes. And it enhances the attorney general’s tools for pursuing both civil and criminal cases.
Across the country, there has been “some renewed energy around clinic protection since the Supreme Court decision,” says Elizabeth Nash, state issues manager in the Washington, D.C., office of the Guttmacher Institute, which focuses on reproductive health and policy. The Massachusetts Senate bill is a “first take” on a response, but “it could possibly be a model for other states,” she says.
Thirteen states and the District of Columbia have laws that prohibit certain actions aimed at abortion providers, Guttmacher reports. Among other things, 11 prohibit blocking entrances, five prohibit threatening staff, and five prohibit actions such as excessive noise or possessing a weapon during a demonstration.
New Hampshire has a new 25-foot buffer-zone law, but enforcement has been blocked by a federal judge pending a challenge in light of the McCullen decision.
Two states, Colorado and Montana, have eight-foot “bubble zones” around people near the facilities, not allowing others to approach them without consent. Such zones were upheld by the Supreme Court in 2000, and in its most recent ruling, the court also declined to strike those down.
Massachusetts already tried that approach and later created the 35-foot buffer zone when law enforcement and providers didn’t find the bubble zones to be effective, Professor Kendrick says.
A number of cities have repealed local clinic buffer-zone laws in the wake of the McCullen decision, including Portland, Maine; and Burlington, Vt. But others, such as Pittsburgh’s 15-feet buffer zone, are still in place.