In today’s released Order List, the Supreme Court granted cert. to McCullen v. Coakley, a case pertaining to protesting within buffer zones at abortion clinics. This means it will be one of the nine cases before the Court during the next session.
Some background courtesy of SCOTUSBlog: McCullen concerns a Massachusetts law that prohibits individuals who are not employed or associated with “reproductive health care” facilities from “‘enter[ing] or remain[ing] on a public way or sidewalk’ within thirty-five feet of an entrance, exit, or driveway” of those same facilities. In other words, the legislation prohibits pro-lifers from protesting outside abortion clinics.
Opponents to the law had challenged its constitutionality, claiming it violated fundamental free speech rights and citing the First and Fourteenth Amendments. They argued that it unfairly restricts “only those who wish to use public areas near abortion clinics to speak about abortion from a different point of view.”
The petitioners also questioned the 2000 ruling in Hill v. Colorado, which, in a 6-3 vote, upheld Colorado legislation that prohibited protesters from approaching “within eight feet of anyone within one hundred feet of a health-care facility for the purpose of counseling, educating, or protesting.” Thus, if Hill supports the Massachusetts law that will be before the Court, then Hill ought to be limited or struck down, according to the petitioners.
To clarify, however, the Massachusetts law is different from the Colorado law for one key reason — a key reason that brings the case before the Supreme Court: The Massachusetts law is biased in a way that applies to only abortion clinics with only clinic employees being able to freely engage in speech, which “will necessarily express the clinic’s view.” In this regard, petitioners argue that the Colorado law from Hill was not biased — but should be overruled if it is.
What is interesting is the Court’s make-up during Hill. In 2000 the justices who made up the majority included Chief Justice William Rehnquist and Justices Stevens, O’Connor, Souter, Ginsburg, and Breyer. Conversely, those dissenting included Justices Scalia, Kennedy, and Thomas.
Kennedy, who authored one of the two dissenting opinions, wrote that the Colorado legislation was a direct violation of free speech rights and was “antithetical to the entire First Amendment tradition.” And since he is often the swing vote of the current Court, the ultimate decision in McCullen would likely be a pro-life victory if it comes down to a 5-4 ideological split.
But even if the Court were to uphold the Massachusetts law — which, again, seems unlikely — it would not be a set-back for the pro-life movement. Pro-life advocates would simply continue to protest outside abortion clinics — just not within 35 feet of the clinics, and not on equal grounds with abortion proponents.
While this case won’t be anything major that even touches Roe v. Wade, it seems like it will be a victory — however narrow — for the larger pro-life movement.