A federal appeals court once again upheld efforts by Massachusetts lawmakers to protect patients at abortion clinics and rejected the latest legal challenge by people who say they have a First Amendment right to get in the face of women entering the clinics.
In a decision that drips with the basic sentiment of "enough, already," the US Court of Appeals for the First Circuit in Boston said that no "creative recalibration of First Amendment principles" will trump the right of patients at clinics in Allston, Worcester and Springfield to safety in their travels and that a state law creating 35-foot wide zones free of people waving giant photos of dead fetuses was legal because it was targeted at all people, not specific groups of loudspeaker-blaring anti-abortion protesters.
Few subjects have proven more controversial in modern times than the issue of abortion. The nation is sharply divided about the morality of the practice and its place in a caring society. But the right of the state to take reasonable steps to ensure the safe passage of persons wishing to enter healthcare facilities cannot seriously be questioned. The Massachusetts statute at issue here is a content-neutral, narrowly tailored timeplace- manner regulation that protects the rights of prospective patients and clinic employees without offending the First Amendment rights of others.
The court rejected the argument by the "sidewalk counselors" that the Supreme Court decision in Citizens United overturned the state buffer-zone law, saying the plaintiffs took snippets of that decision out of context and ignored the fact the decision dealt with contributions to political campaigns, not people waving signs reading "They're Killing Babies Here" at women entering clinics. In fact, the court said, the Citizen United decision specifically pointed to abortion-clinic buffer zones as an example of the sort of limits that could be placed on free speech on a public street.
The court also rejected the argument that the buffer zones forced the protesters to change their "up-close, gentle conversations" into screaming matches just to get the attention of the women they want to reach. The court said that at the clinics in question, evidence was ample that anybody entering the clinics would still see the protesters and that nothing was stopping them from engaging in a little caring chatting.
To be sure, the Act curtails the plaintiffs' ability to carry on gentle discussions with prospective patients at a conversational distance, embellished with eye contact and smiles. But as long as a speaker has an opportunity to reach her intended audience, the Constitution does not ensure that she always will be able to employ her preferred method of communication.