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Massachusetts Strikes Down Supreme Court

Eleanor McCullen at edge of buffer zone


Brian Fraga - published on 07/30/14

Bay State rushes through abortion clinic buffer zone in wake of 9-0 ruling against similar law.

In late June, the pro-life community in Massachusetts celebrated a milestone victory when the United States Supreme Court struck down a state law that created a 35-foot "buffer zone" around abortion clinics.

Just a month later, the state Legislature, prompted by a governor and attorney general who framed the matter as a pressing public safety issue, passed a new law that allows police officers—if they feel it necessary—to order sidewalk counselors and pro-life demonstrators to keep 25 feet away from abortion clinics, or face new criminal and civil penalties.

"The bottom line is that ten feet has been shaved off the buffer zone, and a new buffer zone has been created," said James F. Driscoll, executive director of the Massachusetts Catholic Conference. Driscoll also told Aleteia that the Legislature, which sent the bill to Gov. Deval Patrick’s desk on Monday, rushed the bill through at the 11th hour without proper vetting.

The governor signed the bill Wednesday.

“I am incredibly proud to sign legislation that continues Massachusetts leadership in ensuring that women seeking to access reproductive health facilities can do so safely and without harassment, and that the employees of those facilities can arrive at work each day without fear of harm,” Patrick said in a prepared statement. 

"It does show they have the ability to move things along if there is a desire by leadership and the members, which appears to be the case in this issue," Driscoll said.

Gov. Patrick and Massachusetts Attorney General Martha Coakley, a Democrat running this year for governor, said the Legislature needed to pass a new law quickly to protect abortion clinic workers and women seeking abortions from harassment, intimidation and assaults at the hands of zealous pro-life activists. In a prepared statement, State Senate President Therese Murray said the bill was a "responsible approach to addressing public safety concerns" while respecting the Supreme Court ruling.

In mid-July, Coakley told the state Joint Committee on the Judiciary that "no woman should face intimidation or threats when trying to access reproductive health care services." She also said that the U.S. Supreme Court "should not have the final word."

However, some Bay State Catholic and pro-life leaders question the public safety rationale, arguing that no sidewalk counselors or anti-abortion demonstrators have been charged with civil disobedience outside clinics in almost 20 years, well before the 35-foot buffer zone was created in a 2007 law.

"It’s a smokescreen based on lies. The whole point of the buffer zone and this law has been to marginalize and suppress the pro-life message," said Bill Cotter, president of Operation Rescue: Boston.

C.J. Doyle, executive director of the Catholic Action League of Massachusetts, said the new law selectively targets pro-life activists for the content of their speech.

"This is a punitive piece of legislation that really smacks of retaliation against the pro-life community for having the temerity of defending their constitutional rights at the Supreme Court," Doyle told Aleteia.

Anne Fox, president of Massachusetts Citizens for Life, said the new law is ambiguous.

"If it’s applied sensibly, it’s not so bad. But we won’t know how [law enforcement] will interpret it until we see it," Fox said, adding that a sidewalk counselor could theoretically be accused of detaining someone by approaching and offering to give them literature outside an abortion clinic.

"The way it’s written, Planned Parenthood can call the police at 8 a.m., and by 8:15 p.m., the police can order everyone back for the rest of the day," Fox said.

On June 26, the U.S. Supreme Court ruled 9-0 that the 35-foot buffer zone was an "extreme step" that violated pro-life activists’ free speech rights. Chief Justice John Roberts, who wrote the opinion, said the the buffer zones "burden substantially more speech than necessary" to achieve the state’s interests in maintaining public safety.

The Legislature passed the previous buffer zone law in 2007, almost 13 years after John C. Salvi III killed two people and wounded five others in separate shootings at Planned Parenthood clinics in December 1994. Those who favor legalized abortion, including officials from Planned Parenthood and NARAL, contended that intimidation and harassment is still a reality outside abortion clinics.

Megan Amundson, executive director of NARAL Pro-Choice Massachusetts, said in a prepared statement that the Supreme Court decision was "out of touch with the experiences of real women and real families."

"Whether you call someone a protester or a so-called sidewalk counselor, the harassment faced by patients, families and clinic workers is very real," Amundson said.

However, Andrew Beckwith, president of the Massachusetts Family Institute, told Aleteia that the state already has criminal laws in place where people can be charged with intimidation, harassment or assault if necessary.

"This new law creates a gray zone that only applies outside abortion clinics, and it specifically deals with people we know to be peaceful protesters and sidewalk counselors," Beckwith said.

The new law will enable police officers to require sidewalk counselors or protesters—if they "substantially impede" access to abortion clinics—to keep 25 feet away from the clinics for eight hours or until the facilities close for the day. Criminal punishment can include a $1,000 fine or a six-month jail sentence, though first-time offenders with minimal criminal records would probably just face probation.

Meanwhile, the law’s civil penalties can include fines of up to $10,000 and mandatory fees to cover an aggrieved entity’s court costs, attorney fees and expert witness fees, said Doyle, who described the law as "draconian."

"It’s quite punitive," Doyle said. "You’re replacing a permanent abortion zone with a discretionary buffer zone. You would think a 9-0 Supreme Court decision would have a chastening effect on the Massachusetts Legislature. Instead, they find new ways to circumvent that decision. It’s a disgrace."

Doyle joined other observers in criticizing how the Legislature fast-tracked the new buffer zone law. He noted that on July 16, two days after the bill was first filed, the legislation was voted out of two committees, passed through three Senate readings, and passed to be engrossed by the Massachusetts Senate, all before the end of a scheduled public hearing.

The text of the bill was also not made available until July 15, and less than 36 hours notice was given for the public hearing.

"I think it was unfortunate that this bill didn’t get a complete review and vetting that most bills get," Driscoll said. "If this issue was given time to sort of play itself out, we would have known better if there was a need for this."

"Legally, Massachusetts may be part of the United States, but politically, the Bay State is a Third World country," said Doyle, who criticized lawmakers for accepting the proponents’ public safety claims without any real evidence of ongoing harassment outside abortion clinics. Doyle also noted that the House of Representatives—which approved the bill in a 116-35 vote on July 23—rejected an amendment to extend similar protections to pro-life activists outside the abortion clinics.

Cotter, president of Operation Rescue: Boston, testified at the public hearing that pro-life activists have been assaulted outside clinics. He said that they, unlike the pro-abortion lobby, have been able to present evidence in court proceedings, something he said the Planned Parenthood facility in Boston, which has surveillance cameras surrounding it, has never done.

"In ten-plus years since (the cameras) have been out there, they haven’t produced five seconds of footage showing these alleged crimes, whereas this is supposed to be going on continually," Cotter said.

"It should have been relatively easy to have a couple of video recordings to present to the Legislature and to the public to say, ‘Look, here’s why we need this bill. Here are examples of what happens,’" said Beckwith, who is concerned that the new discretionary buffer zone law will have a chilling effect on sidewalk counselors and pro-life demonstrators.

"Before you go and try to counsel someone, you have to worry about getting sued into oblivion by Planned Parenthood, which had a press conference standing arm-in-arm with the attorney general," Beckwith said. "This bill is about retaliation and intimidation by Planned Parenthood against pro-life counselors because they were extremely angry about being embarrassed in front of the Supreme Court. Obviously, that is not why we should be making law."

Many believe the new buffer zone law will face another constitutional challenge.

"I think it’s fair to say someone at some point will be challenging this new law as unconstitutional on the same lines that the other law was challenged," Driscoll said.

"We’ll know more details once we see the actual nuts and bolts of how this law gets worked out in the real world," Beckwith added.

Cotter, who said Operation Rescue: Boston helped prevent 64 abortions last year by changing people’s minds outside clinics, said he also fears the new law will scare some people from praying or counseling outside clinics.

"However, if the new law is honestly applied, it’s not going to hamper us at all," Cotter said. "We’re going to have continued access to areas of the sidewalk that were formerly forbidden. I’m sure that will improve our results."

Brian Fraga is a daily newspaper reporter who writes from Fall River, Massachusetts.

AbortionPlanned ParenthoodPolitics
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