At the ACLU of Virginia, we are often faced with cases, like this one, where it is necessary to protect what appears to be two competing constitutional rights. In McCullen v. Coakley, the U.S. Supreme Court was asked to protect the First Amendment right to use public sidewalks to speak, protest peacefully, and assemble (subject only to neutral time, place and manner rules) and the constitutional right to reproductive freedom.
“We agree with the majority of Virginians who believe that women who’ve made the choice to terminate a pregnancy deserve to be free to enter a doctor’s office or clinic without facing physically threatening behavior and other tactics designed to intimidate them out of exercising their constitutional right to an abortion,” said Claire Guthrie Gastañaga, Executive Director of the ACLU of Virginia. “We also support the right of all Virginians to exercise their First Amendment rights on our public sidewalks and in public spaces,” she added. “Our job, and the job of public officials and law enforcement, is to ensure that neither anti-abortion protestors nor women seeking abortion are prevented from exercising their rights, either by unnecessarily broad regulations or by intimidation or harassment.”
The McCullen v. Coakley case involved a Massachusetts law prohibiting anyone (other than an employee, client, passerby or first responder) from entering or remaining in a 35 foot fixed “buffer” zone outside the entrance to a health facility providing abortion services. The law at issue had replaced a more difficult to enforce law that prohibited people from approaching other people without their consent to hand them literature or “counsel” them within an 18 foot area around the entrance or driveway of an abortion provider. Anti-abortion advocates argued the amended law violated their right to communicate with women seeking abortion. The U.S. Supreme Court found that, although the new law did not discriminate against anti-abortion advocates based on content, the government had failed to meet the requirement that the law be narrowly tailored to serve the government’s interest in protecting public safety and not substantially burden the free speech rights of abortion protestors. As the Court stated:
“The government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier. A painted line on the sidewalk is easy to enforce, but the prime objective of the First Amendment is not efficiency.”