Colorado’s protective ‘bubble law’ near abortion clinics in jeopardy
In a rare unanimous decision, the most activist U.S. Supreme Court in recent history overturned a Massachusetts law establishing a 35-foot buffer zone around abortion clinics in a decision handed down June 26, 2014.
The issue came before the court only because the chief justice chose that it should. As MSNBC’s Irin Carmon points out, “There was no split in the lower courts, one usual prompt for the Supreme Court, and both the district court and the First Circuit Court of Appeals had ruled that the Massachusetts law was constitutional under the Supreme Court’s own precedent in a 2000 case.”
Writing for the court, Chief Justice John Roberts wrote, “An individual confronted with an uncomfortable message can always turn the page, change the channel, or leave the Web site. Not so on public streets and sidewalks,” which the First Amendment designates as “an uninhibited marketplace of ideas in which truth will ultimately prevail.”
Stressing the importance of public space for free speech, Roberts wrote, “It is no accident that public streets and sidewalks have developed as venues for the exchange of ideas. Even today, they remain one of the few places where a speaker can be confident that he is not simply preaching to the choir.”
Despite conceding that Massachusetts has “legitimate interests in maintaining public safety on streets and sidewalks and in preserving access to adjacent reproductive healthcare facilities,” efforts to protect employees and clients of abortion clinics from anti-abortion protestors ultimately “impose serious burdens on petitioners’ speech, depriving them of their two primary methods of communicating with arriving patients: close, personal conversations and distribution of literature.”
The immediate impact of the law will be on Massachusetts, but inevitably similar laws in other states with will be challenged.
As Tessa Cheek of the Colorado Independent points out, the Massachusetts law initially was based on Colorado’s “bubble law” passed in 1993, and upheld in the Supreme Court in 2000.
Unlike the 35-foot perimeter established by Massachusetts, the Colorado law established a floating eight-foot “bubble” around a woman within 100 feet of a medical clinic.
When the “bubble” proved ineffective in protecting women from abuse, Massachusetts imposed its 35-foot perimeter.
In Hill v. Colorado, the U.S. Supreme Court ruled six to three that the state did not violate free speech protection by limiting protests, education, literature distribution, or verbal counseling within an eight-foot “bubble” around a person entering a health care facility.
Though Colorado’s “bubble law” was upheld by the Supreme Court in 2000, today its fate is less sure.
“Colorado struck a good balance in the law by protecting both free speech rights and the rights of patients and providers. The bill we passed set the standard. Women should be able to access health care without being threatened and harassed. Providers should be able to go to work without running a gauntlet,” Karen Middleton, of NARAL Pro-Choice Colorado said in a press release immediately after the decision was announced.
Others are less sure of the Court’s intention. “The immediate impact of the decision will be on Massachusetts, but advocates expect that similar fixed-distance buffer zones in other states, including one currently being challenged in Maine, will be next,” said MSNBC’s Carmon.
“The Supreme Court upheld Colorado’s bubble law in a 2000 ruling,” Cheek said, “but today’s ruling has raised new questions about the fate of Colorado’s law.”
“If you were a betting man,” said Roger Evans, senior counsel at Planned Parenthood Federation of America said of restrictions on anti-abortion protests, “you would bet that they would all go.”
With an ironic look on the bright side, Evans announced, “the silver lining to the court’s opinion is that it does not set the stage for even further erosion of the protective measures outside abortion clinics.”
Unfortunately, Evans’ optimism probably is premature.
Clearly Colorado’s laws to protect women from abuse when seeking health care are being undermined by an activist federal Supreme Court that substitutes its own values for the will of the people.