A unanimous U.S. Supreme Court ruling Thursday that overturned a Massachusetts law designed to keep abortion opponents away from patients has also opened a debate over whether a Chicago ordinance with the same intent will stand.
Anti-abortion activists in Chicago said the ruling against the Massachusetts law that keeps abortion opponents at least 35 feet from clinics undercuts a 2009 Chicago measure designed to protect patients seeking reproductive health care.
The city's ordinance created an 8-foot “bubble zone” around people within 50 feet of a medical facility. Abortion-rights advocates say they expect a legal fight, even though they and city officials said Thursday's majority opinion seems to uphold the carefully crafted local statute.
“Of course we expect a challenge,” said Pam Sutherland, vice president of public policy and education for Planned Parenthood of Illinois. “But it's going to be argued on the merits that ours is a bubble zone, not a buffer zone. We have seen firsthand how the obstruction, harassment and intimidation affects our patients. The bubble zone we have has actually helped our patients be able to access services.”
To avoid legal challenges, Chicago based its ordinance on a Colorado law that creates an 8-foot no-approach zone within a 100-foot radius of all health care facilities. That law was upheld by the U.S. Supreme Court in Hill vs. Colorado in 2000. But in a concurring opinion Thursday, Justice Antonin Scalia suggested revisiting the Colorado law, inviting challenges to similar limits across the country.
“That suggests future cases that will deepen the First Amendment's protection of pro-life activity, especially sidewalk counseling outside abortion clinics,” said Eric Scheidler, executive director of the Chicago-based Pro-Life Action League. “I see a great path being laid out for us. I see the Chicago bubble zone eventually making its way to the Supreme Court and being overturned.”
All nine justices agreed Thursday that the no-talking and no-standing zones surrounding the entrances to abortion facilities in Massachusetts were unconstitutional and unnecessary. But a narrow majority — Chief Justice John Roberts and liberal Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — also made clear that cities and states retain the right to ban, remove or arrest protesters who are obstructing clinic entrances or harassing patients.
The ruling on the Massachusetts case marked the first time the Supreme Court had revisited the abortion issue since 2007, when sharply divided justices upheld a federal law banning so-called partial-birth abortions. That decision gave states more leeway to regulate the practice of abortion, and many conservative states have adopted new restrictions since then.
In Thursday's decision, Roberts said states and cities may not take the “extreme step” of closing public sidewalks to those who hope to have “quiet conversations” with women walking toward abortion clinics. Doing so, he wrote in McCullen v. Coakley, violates the First Amendment.
The lawsuit is named for Eleanor McCullen, an abortion opponent, and Massachusetts Attorney General Martha Coakley.
Roberts compared the Massachusetts law to drawing a “painted line on the sidewalk” inside of which it was illegal even to pass out a pamphlet. He said less restrictive alternatives were available. “The police appear perfectly capable of singling out lawbreakers,” Roberts wrote, without making it illegal for opponents who call themselves sidewalk counselors to speak to women on sidewalks.
Dr. Ellen Lorange, a Chicago abortion provider, said she didn't think buffer zones rejected in Thursday's ruling violate anyone's free speech. They protect patients who often ask her more questions about the intimidation they might encounter outside the facility than about the medical procedure, she said.
“We have to realize clinic violence is real,” she said. “In Chicago, I'm very fortunate because buffer zones are there and they work.”
Prior to the 1990s, most of the high court's decisions on sidewalk protests had involved labor picketing or civil rights demonstrators.
In 1994, the court upheld a judge's order that set a 36-foot buffer zone at the entrance to a Florida abortion clinic. The majority said it was justified because protesters had repeatedly blocked the entrance to the driveway. Justices Scalia, Anthony Kennedy and Clarence Thomas dissented on free-speech grounds.
In Thursday's ruling, the same justices echoed previous objections, calling the Massachusetts law “unconstitutional root and branch.”
The trio issued a concurring opinion in which they suggested that abandoning the rationale in Hill v. Colorado — people have a right to free speech and to be free of unwanted communication — was tantamount to overturning the Colorado case.
Steven Heyman, a professor who specializes in matters of free speech at Chicago-Kent College of Law, said Scalia and the other conservative justices have a point. Roberts and the majority did seem to reject the reasoning applied in Hill, Heyman said. But if they had meant to overturn the Colorado law, they would have drafted a different opinion, he said. What they wrote does open the door to litigation, he said.
“It's a very interesting question where Hill stands after today,” Heyman said. “We just don't know. … If I were arguing for the city of Chicago I would point out that what Roberts says the First Amendment protects here are personal and compassionate and consensual conversations.”
Any legal argument over Chicago's ordinance could include Tom Brejcha, a lawyer who fought the city's bubble zone when it was adopted. He said Thursday that he foresees it being overturned before the end of the summer.
“Summer is a very important time for sidewalk counseling,” Brejcha said. “Ever since the Chicago ordinance was passed, it's been confusing, it's been misapplied by any number of police officers. It seems to create a ‘no free speech' zone, and that's antithetical to what the Supreme Court decision stands for. We'll be moving pretty decisively.”
Anna Marie Mesia, 66, of Chicago, said she also was pleased by the high court's unanimous ruling. She was arrested in 2012 while approaching a clinic with anti-abortion literature in her hand. Charges of disorderly conduct were dismissed.
Mesia sees it as her job to let women know that going through with an abortion is not as easy as it seems.
“Women are hurting and angry and fearful,” she said. “They see it as the only out, and it's being promoted as an easy fix.”