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Buffer Zone: Perspective from Beth Parker

Beth Parker

In case you missed this week’s article in the Daily Journal written by Beth Parker, Chief Legal Counsel at Planned Parenthood Affiliates of California, here are some key quotes as she shares her insight on the Supreme Court’s recent Buffer Zone ruling:

The U.S. Supreme Court's recent decision in McCullen v. Coakley, 2014 DJDAR 8317, striking down a 35-foot buffer zone around health care facilities that perform abortions, exposes the court's complete detachment from the practical realities of daily life. The decision is particularly ironic as the justices enjoy a 250-foot speech free zone around their workplace. They can enter their building completely shielded from the protests that often occur on argument days. In contrast to the women seeking to enter health facilities with a history of violence surrounding them, the justices enjoy massive public and personal security. They are not forced to walk the gauntlet of people opposed to their views, deal with the face-to-face confrontations of complete strangers, or brush off unwelcome attempts to push literature into their hands. And the justices, at least theoretically, are wizened individuals who have risen to prominence and distinction after decades of being in the public limelight. They are not women wrestling with an intensely private decision that could impact them emotionally and economically for the rest of their lives.”

“On its face, the decision appears straight forward. The court applies a traditional First Amendment analysis. Although it finds the law content neutral, it concludes that it is not narrowly tailored to serve a significant government interest. The court does recognize the legitimacy of the government's interests in ensuring public safety, promoting the free flow of traffic, protecting property rights, and enabling women to seek pregnancy-related services. Yet it finds the buffer zone imposes serious burdens on speech because it compromises the ability to initiate close, personal conversations that are the hallmark of "sidewalk counseling." It concludes that Massachusetts had not shown it had tried first to use other less intrusive tools to address the problems. The court does not even address the third prong of the First Amendment test - whether the act left open alternative channels of communication - presumably because it could not. At 35 feet, one-third the way to first base from home plate, protestors had ample means to express their opposition to abortion.

“More problematic is the Supreme Court's implication that it might later invalidate even these alternative approaches, thus leaving the state and the health facilities with no real alternatives at all. Four justices said outright that they would invalidate these methods as undue restrictions on free speech rights. Twice in his "unanimous" opinion, Chief Justice John Roberts said "we need not (and do not) endorse any of those measures," clearly implying that he was only leaving that invalidation for a later day. In fact, a mere week later in the contraceptive cases, the court struck down a less restrictive alternative it had relied upon just days before to invalidate a more onerous law. When it comes to laws impacting access to reproductive rights, the male majority seems to have no compunction about eliminating all alternatives. As a result, unlike the justices themselves, women may be left with no protection from harassing and intimidating conduct at a physically and psychologically vulnerable time in their lives.”

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