Abortion buffer zone laws falling after U.S. Supreme Court ruling

Less than two weeks after a Supreme Court ruling struck down a Massachusetts law requiring protesters to stay outside a 35-foot buffer zone around abortion clinics, cities around the country are moving to repeal similar laws or are not enforcing the buffer zones.

That is leading abortion rights advocates to worry that women might not seek the medical care they need because of fear of being harassed or intimidated outside clinics.

“Ever since that decision, many women have had their access denied as a practical matter,” Massachusetts Attorney General Martha Coakley said last week.

On Monday night, the city council in Portland, Maine, was expected to repeal an ordinance, enacted in November, that requires protesters to stay 39 feet away from a women’s health clinic downtown.

Last week, the city of Burlington, Vermont, decided to stop enforcing parts of an ordinance prohibiting people from demonstrating within 35 feet of an abortion clinic. Another segment of the ordinance, which makes it a crime to block people from entering a clinic, will still be enforced.

And the city of Madison, Wisconsin, has stopped enforcing an ordinance requiring protesters to stay 8 feet away from people entering or exiting a clinic.

In Boston, abortion clinic protesters have already changed their behavior in the wake of the June 26 Supreme Court decision on McCullen vs. Coakley. They now stand within the yellow line that had been painted on the pavement after Massachusetts passed its law in 2007. But they don’t stay there. Instead, they now follow patients to the door of the clinic on busy Commonwealth Avenue.

Marty Walz, head of Planned Parenthood of Massachusetts, said the protesters had managed to scare some clients away, with the clinic reporting more no-shows for the week than usual.

In the Massachusetts case, the Supreme Court said the state’s buffer zone ordinance, which prohibited protesters within 35 feet of the clinic, was unconstitutional.

However, the justices let stand a 2000 decision in another case, Hill v. Colorado, that prohibits protesting and distributing literature within 8 feet of someone entering a health care facility. Such “bubble zone” ordinances are common across the country, including in cities such as Chicago and states such as Colorado.

But in a concurring opinion, Justice Antonin Scalia suggested that the Hill bubble zone ordinance should be overruled, based on how the court ruled in the McCullen case.

“Protecting people from speech they do not want to hear is not a function that the First Amendment allows the government to undertake in the public streets and sidewalks,” Scalia wrote.

That is leading some attorneys to question whether even the bubble zone ordinances are constitutional in the wake of McCullen. And it is why Michael May, the city attorney in Madison, decided to stop enforcing his city’s bubble zone ordinance.

“In light of the Supreme Court decision, we suspended enforcement to figure out what, if anything, is left of the ordinance,” May said. “If you read the decision, I’m not sure there’s much of Hill left.”

Still, some ordinances remain in effect, including last month’s decision in New Hampshire to establish a 25-foot buffer zone around clinics in the state. And in Pittsburgh, which in 2005 enacted a law creating a 15-foot buffer zone around clinics, city officials have said the law will stand.