The Supreme Court on Thursday unanimously struck down protest-free buffer zones around abortion clinics in Massachusetts as an unconstitutional infringement on free speech.
But Chief Justice John G. Roberts Jr.’s ruling was a narrow one, pointing out that other states and cities had found less-intrusive ways to both protect women entering clinics and accommodate the First Amendment rights of those opposed to abortion.
Massachusetts asserts “undeniably significant interests in maintaining public safety on [its] streets and sidewalks, as well as in preserving access to adjacent healthcare facilities,” Roberts wrote. “But here the commonwealth has pursued those interests by the extreme step of closing a substantial portion of a traditional public forum to all speakers.”
Significantly, only the court’s liberals joined Roberts’s opinion: Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. That is a rare combination at the court, Roberts’s majority opinion upholding the Affordable Care Act in 2012 the most notable example.
The court’s four conservatives agreed that the law violated the First Amendment but, writing separately from Roberts, said he was wrong in not simply finding that the law discriminated against those opposed to abortion.
“Today’s opinion carries forward this court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents,” Justice Antonin Scalia wrote in a concurring opinion joined by Justices Anthony M. Kennedy and Clarence Thomas. “There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.”
Justice Samuel A. Alito Jr. did not join Scalia’s biting opinion and wrote his own, agreeing that the law was unconstitutional because employs “blatant viewpoint discrimination.”
Roberts’s opinion did not mention a 2000 Supreme Court decision that said governments could enact some restrictions. It upheld a Colorado law that established 100-foot buffer zones outside all health-care facilities — not just abortion clinics — and prohibited approaching a person within an eight-foot bubble to protest or counsel.