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Boston Bar Journal

The Buffer Zone: Where We’ve Been and Where We’re Going

October 07, 2014
| Fall 2014 Vol. 58 #4

Miller_Johnby Jonathan B. Miller

Case Focus

This past June, the U.S. Supreme Court struck down Massachusetts’ buffer zone law in the case of McCullen v. Coakley, 134 S. Ct. 2518 (2014).  The law at issue created a 35-foot perimeter outside of the entrances and driveways to reproductive healthcare facilities, and was Massachusetts’ third attempt at crafting an effective and constitutionally permissible regulatory regime for the space around those facilities.  The McCullen decision prompted a fourth effort to create an enforcement scheme that strikes the right balance between ensuring reproductive freedom and guaranteeing First Amendment rights.  On July 30, 2014, Governor Patrick signed into law the Safe Access Law which creates new protections for patients and clinic staff.  This article offers a brief review of each chapter in the ongoing dialogue between law enforcement and the Legislature on the one side, and the U.S. Supreme Court on the other.

Chapter 1: Injunctions

In the 1990s, the Massachusetts Civil Rights Act (“MCRA”), M.G.L. ch. 12, §§ 11H & 11I, was the primary tool used by private parties and the Attorney General seeking injunctions against protesters interfering with patients outside reproductive healthcare clinics.  The statute prohibits the use of threats, intimidation, and coercion to interfere, or attempt to interfere, with the exercise of secured rights.  Despite the fact that the MCRA had been designed principally to combat bias-motivated conduct, the statute was successfully used to enjoin a variety of conduct occurring outside reproductive healthcare facilities — including lying down across the sidewalk, using bicycle locks to link protesters to one another or to buildings, and impersonating escorts.  See, e.g., Planned Parenthood League of Massachusetts, Inc. v. Blake, 631 N.E.2d 985 (Mass. 1994).  In addition, violation of an MCRA order is a criminal offense (see M.G.L. c. 12, § 11J), and several people were successfully prosecuted under the statute despite First Amendment and other challenges to the law.  See, e.g., Commonwealth v. Filos, 649 N.E.2d 1085 (Mass. 1995); Commonwealth v. Cotter, 612 N.E.2d 1145 (Mass. 1993); Commonwealth v.  Brogan, 612 N.E.2d 656 (Mass. 1993).

Similar efforts were undertaken in other parts of the country, and injunctions obtained against protesters in other jurisdictions went before the U.S. Supreme Court twice in the 1990s.  Both times, the Supreme Court upheld, at least in part, the injunctions against First Amendment challenges.  In Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994), the Court affirmed an injunction prohibiting members of Operation Rescue from going within 36 feet of public access points to a women’s healthcare facility in Florida.  Three years later, in Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997), the Court affirmed a similar injunction while reversing a portion of the district court’s order that had created “floating” buffer zones around patients and staff.

Chapter 2: Bubble Zone

Despite successful criminal and civil prosecutions under the MCRA, the statute had limited practical effect.  Protesters subject to injunctions were readily replaced by others.  Moreover, civil and criminal enforcement efforts under the MCRA required the dedication of significant resources from police, government attorneys, and private counsel for the healthcare facilities.  A different approach, therefore, was needed.  The framework for such an approach came from the Supreme Court’s decision of Hill v. Colorado, 530 U.S. 703 (2000), which upheld a Colorado law prohibiting individuals from approaching without consent another person who was within 100 feet of any healthcare facility.  Notably, the Colorado statute applied to all healthcare facilities, not just reproductive healthcare clinics.

Modeled on the statute upheld in Hill, a law enacted by the Massachusetts Legislature in 2000 created an 18-foot zone outside of reproductive healthcare facilities entrances and driveways inside of which no person could without consent approach within six feet of another person or an occupied vehicle.  Mass. Stat. 2000, ch. 217.  The law was challenged on First Amendment grounds both facially and as applied, but was upheld by the First Circuit.  As a practical matter, though, the law had only a minimal impact on preserving patient and staff access to reproductive healthcare facilities.  Protesters routinely blocked the doorways and driveways because the law did not prohibit stationary protests.  Current Boston Police Commissioner William Evans testified at a 2007 legislative hearing that it was “hard to determine” what constituted an “approach” under the law and that it required the police, essentially, to act as “basketball referees” to ascertain a violation.  This made prosecution under the law nearly impossible.

Chapter 3: Fixed Zone

Due to the enforcement challenges and limited effect of the 2000 law, there was a renewed effort to revise the law in 2007.  That resulted in the establishment of the 35-foot zone that was the subject of the McCullen litigation.  The buffer zone prohibited entry to the area surrounding the entrances and driveways of all reproductive healthcare facilities during business hours, except for (1) people entering and exiting the facility; (2) clinic employees or agents (meaning escorts) acting in the scope of their employment; (3) law enforcement, municipal, utility, and emergency workers acting within the scope of their employment; and (4) individuals passing through the zone.

The plaintiffs in McCullen, a group of individuals who protest regularly outside the Planned Parenthood facilities in Boston, Springfield, and Worcester, challenged the 2007 law on First Amendment grounds.  In addition to arguing that the law was not appropriately tailored, the plaintiffs asserted both content- and viewpoint-based claims.  They contended that because the law applied only to reproductive healthcare facilities, it was an impermissible content-based restriction on speech.  They also argued, among other things, that the employee exemption mentioned above allowed for viewpoint discrimination because employees of the clinic were allowed to be inside of the zone (and, at least theoretically, engaged in speech), but protesters were not.

The plaintiffs prevailed on their argument that the law was overbroad, and the statute was struck down.  In its decision, however, the Court squarely rejected their contention that the law was an impermissible content-based restriction on speech.  The Court explained: “a facially neutral law does not become content based simply because it may disproportionately affect speech on certain topics.”  134 S. Ct. at 2531.  Moreover, in quoting Burson v. Freeman, 504 U.S. 191 (1992), a case concerning 100-foot electioneering buffer zones outside of polling places, the Court indicated that it was appropriate for Massachusetts to focus its law on reproductive healthcare clinics (as opposed to all healthcare facilities or all buildings more generally) since “[t]he First Amendment does not require States to regulate for problems that do not exist.”  134 S. Ct. at 2532.  The Court likewise rejected the viewpoint discrimination claim.  Nevertheless, the Court concluded that the law went too far in restricting the plaintiffs’ ability to engage in conversation on a public sidewalk, and that there were less intrusive alternatives available.

Chapter 4: Safe Access Law

Less than three weeks after the McCullen decision was handed down, the Safe Access bill was introduced into the Massachusetts Senate by Senator Harriette Chandler.  It was modeled largely on statutes and ordinances the Supreme Court cited as examples of less restrictive alternatives than the buffer zone.  The Court had offered a road map, and the Legislature was intent on following it.

The Safe Access Law (codified primarily at M.G.L. ch. 266, § 120E½) contains a variety of provisions that respond to documented problems arising at the facilities.  To address the problem of blocking entrances and driveways, the new law includes a withdrawal order.  This provision allows the police to order any individual or group substantially impeding access to a facility to move at least 25 feet from the door or driveway for eight hours, or until the facility closes.  (A violation of such an order is a criminal offense.)  Other provisions, borrowed from the federal Freedom of Access to Clinic Entrances Act, criminalize using force to injure or intimidate patients or staff.  In addition, the Safe Access Law prohibits knowingly impeding access to an entrance or driveway and recklessly interfering with the operation of a motor vehicle that is nearing a facility.  These provisions address, among other things, a history of slow-moving protesters effectively blocking driveway access and the throwing of literature directly at drivers whose car windows are open.  The provisions of the new law are enforceable both civilly and criminally.  The Safe Access Law also enhances remedies available under the MCRA so that the Attorney General may obtain damages, attorneys’ fees, and, in some instances, civil penalties against individuals who interfere with the constitutionally protected rights of others.

Will this be the final chapter?  It is too soon to tell.  Hopefully, by following the road map offered by the Court, the right balance has been struck and the law will afford ample protection to patients and facility staff with minimal, if any, restriction on protected speech.


Jonathan B. Miller is Chief of the Civil Rights Division of the Massachusetts Attorney General’s Office. This article represents the opinions and legal conclusions of its author and not necessarily those of the Office of the Attorney General. Opinions of the Attorney General are formal documents rendered pursuant to specific statutory authority.