573 U.S. 464 (2014)
In 2000 the Massachusetts Legislature enacted the Reproductive Health Care Facilities Act to address clashes between abortion opponents and advocates outside clinics where abortions were performed.1
The original statute created an 18-foot radius around facility entrances and driveways.2 Within that area no person could knowingly approach within six feet of another without consent for the purpose of leafleting, displaying a sign, or engaging in oral protest, education, or counseling.3
By 2007 the legislature amended the Act.4 Hearings featured testimony from Attorney General Martha Coakley and Captain William Evans of the Boston Police Department.5 They stated that the six-foot no-approach zones were unenforceable because of crowding and difficulty determining consent.6
The 2007 version replaced the floating zones with fixed 35-foot buffer zones.7 Individuals are categorically excluded from these zones during business hours.8 The statute retained exemptions for persons entering or leaving the facility, employees or agents acting within the scope of their employment, law enforcement and municipal agents, and persons merely passing through.9
Petitioners Eleanor McCullen, Jean Zarrella, Gregory Smith, Eric Cadin, Cyril Shea, Mark Bashour, and Jane Doe engage in sidewalk counseling at Planned Parenthood clinics in Boston, Worcester, and Springfield.10 They initiate conversations by offering literature and information about alternatives to abortion while maintaining a calm demeanor and direct eye contact.11 The buffer zones displaced them from positions near clinic entrances and driveways.12
In January 2008 petitioners filed suit in the United States District Court for the District of Massachusetts against Attorney General Coakley and other Commonwealth officials.13 They alleged that the Act violates the First and Fourteenth Amendments both facially and as applied.14 Petitioners testified that they have had many fewer conversations and distributed many fewer leaflets since the zones went into effect.15
Whether the Massachusetts statute establishing buffer zones around abortion clinics is content based?16
A statute regulating speech is content based if it draws distinctions based on the message conveyed or targets speech concerning a specific topic without justification unrelated to content.17 Facially neutral laws justified by interests such as public safety remain content neutral even if they disproportionately affect speech on one subject.18
No. The statute defines reproductive health care facilities by the services they provide and restricts presence within 35 feet of entrances and driveways at those locations during business hours. The prohibition turns on where speech occurs rather than its content, as petitioners can violate the Act merely by standing in a buffer zone without uttering a word.19 The Commonwealth justified the zones by reference to public safety, patient access, and unobstructed sidewalks, interests previously recognized as content neutral, and the record shows the problems of crowding and obstruction were documented only at abortion clinics.20
The statute is content neutral.21
Related opinions on this issue
Joined by Justice Kennedy And Justice Thomas
Justice Scalia contends that the statute is content based because it applies exclusively to abortion clinics and was enacted in response to anti-abortion activity.22 He argues that the law effectively suppresses speech opposing abortion.23 The employee exemption permits clinic agents to express favorable views inside the zones while barring critics from doing the same.24
Scalia would apply strict scrutiny and invalidate the statute on that basis as well.25 He criticizes the majority for preserving weak precedent that allows jurisdictions to restrict antiabortion speech without rigorous review.26
Whether the statute is narrowly tailored to serve significant governmental interests?27
No. The 35-foot fixed buffer zones serve the legitimate interests in public safety and access at reproductive health care facilities.30 Yet they impose serious burdens by displacing petitioners from positions near entrances and driveways at the Boston, Worcester, and Springfield clinics, preventing close personal conversations and leafleting that petitioners have used for years to counsel women.31 The Commonwealth failed to show that less restrictive measures such as the preexisting obstruction provision, the federal FACE Act, targeted injunctions, or the prior six-foot floating zones would be ineffective, as the record reveals no prosecutions since the 1990s and problems limited principally to one clinic on Saturday mornings.32
The statute is not narrowly tailored.33
Related opinions on this issue
Joined by Justice Kennedy And Justice Thomas
Justice Scalia agrees the statute fails narrow tailoring because it burdens substantially more speech than necessary.34 He would reach the same result under strict scrutiny after finding the law content based due to its exclusive application to abortion clinics.35 Scalia criticizes the majority for reaching the tailoring question only after an unnecessary content-neutrality analysis that preserves weak precedent for future abortion-speech restrictions.36
He notes that the Court should have applied strict scrutiny from the outset given the statute's clear focus on abortion-related speech.37
Justice Alito concurs that the statute violates the First Amendment.38 He emphasizes that the employee exemption creates viewpoint discrimination by allowing clinic agents to speak favorably about abortion inside the zones while barring critics.39 Alito illustrates the discrimination with realistic examples of a counselor being silenced while a clinic escort delivers the opposite message to the same woman.40
This facial discrimination on viewpoint renders the statute unconstitutional regardless of tailoring.41 He concludes that the law is invalid on its face because it permits one side of the debate to speak while silencing the other.42
Whether the statute leaves open ample alternative channels for communication of information?43
A content-neutral restriction must leave open ample alternative channels for communication of the information, though this inquiry is reached only after confirming narrow tailoring.44
No. The Court did not reach this question.45 Because the statute fails the narrow-tailoring requirement, the Court did not decide whether the zones leave open ample alternative channels.46 Petitioners testified that the zones reduced their conversations and leafleting at all three clinics and forced them to stand substantial distances from driveways where most patients arrive by car.47
The Court did not reach whether ample alternative channels remain open.48