Authorities have less intrusive ways to deal with potential confrontations or other problems arising outside clinics, Chief Justice John Roberts wrote. Roberts noted most of the problems reported by police and clinics in Massachusetts occurred outside a single Planned Parenthood facility in Boston, and only on Saturdays when the largest crowds typically gather.
“For a problem shown to arise only once a week in one city at one clinic, creating 35-foot buffer zones at every clinic across the Commonwealth is hardly a narrowly tailored solution,” Roberts said. He wrote the majority opinion after asking no questions — exceedingly rare for him — at the argument in January.
Roberts also noted no other state has a similar law, and he is aware of only five cities that have created fixed buffer zones around abortion clinics: Burlington; Pittsburgh, Penn.; Portland, Maine; and San Francisco and Santa Barbara in California.
The ruling also left intact a high court decision from 2000 upholding a floating buffer zone in Colorado.
While the court was unanimous in the overall outcome, Roberts joined with the four liberal justices to strike down the buffer zone on narrower grounds than the other, more conservative justices wanted.
In a separate opinion, Justice Antonin Scalia criticized Roberts’ opinion as carrying forward “this court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents.”
Scalia said state and local governments around the country would continue to be able to “restrict antiabortion speech without fear of rigorous constitutional review.” Joined by Justices Anthony Kennedy and Clarence Thomas, Scalia dissented from the Colorado decision and said Thursday he would have overturned it.
Reaction to the buffer-zone ruling was predictably mixed. Abortion rights advocates lamented the new ruling and said it compromised the safety of women seeking abortions.
“This decision shows a troubling level of disregard for American women, who should be able to make carefully considered, private medical decisions without running a gantlet of harassing and threatening protesters,” said Cecile Richards, president of Planned Parenthood Federation of America.
Mark Rienzi, who represented the protesters, said, “The government cannot reserve its public sidewalks for Planned Parenthood, as if their message is the only one women should be allowed to hear. Today’s decision confirms that the First Amendment is for everyone, and that the government cannot silence peaceful speakers.”
Massachusetts officials who backed the buffer zone said they would try to re-craft the law to address the high court’s concerns.
“The fight is just beginning again,” said state Attorney General Martha Coakley, whose office had argued before the justices.