McCullen v. Coakley

I am not fully persuaded by the majority's contention that the Massachusetts law is unconstitutional. Some of the arguments in the opinion, such as the assumption that the anti-abortion activists challenging the law as "counselors" rather than "protesters," are problematic, and Massachusetts had tried a narrower approach that had not been successful before, suggesting that it deserved more leeway to legislate in this area. Nonetheless, the balance the opinion strikes between the state's interest in protecting access to reproductive health clinics and First Amendment rights is not unreasonable, and should not unduly restrict states going forward. Particularly important is that the fact that the majority did not overrule Hill v. Colorado, and indeed strongly suggests that most of the common means states use to protect clinic access are constitutional. States still have the tools to protect women's access to reproductive care, and it's important that they continue to exercise

A strong supporter of abortion rights wrote the above (see also, Dilan Esper in comments there, similar caliber views on this issue, sees somewhat case as hard) though his strongest view might be "could have been worse." Laurence Tribe also wrote an op-ed mostly in support of the ruling, also a strong supporter of abortion rights. Others are strongly opposed to the ruling, including one who does a weekly "RH Reality Check" podcast (will aid and abet unlawful action) and Judge Posner (the dissent in the invocation case also isn't taken seriously, plus Wiccans are called "witches").

The SCOTUSBlog page provides various material, including the lower court opinion,  briefs and links to opinion commentary.  A prelude of sorts to this case is the aforementioned Hill v. Colorado, which is possibly distinguishable, providing an opening suggestion why the "liberals" on the Court, including Justice Ginsburg who during oral argument was sympathetic to the law, staid silent.  An earlier Massachusetts law was more tied to that case (six foot buffer zone) but was later (as briefly noted by the opinion, more so in briefs for that side) deemed inadequate.

The law in Hill provided for a more limited buffer zone and was for "health care facilities" generally.  But, the latter tidbit is of questionable relevance. Roberts opinion (again helping to explain possible strategic voting) is clear that the problem here is not that it is a content based law (Tribe finds this silly, but as with polling places etc., sometimes they are acceptable -- he differentiates here on other grounds).  Alito didn't join with the other dissenters (recall he was the lone dissenter in both the funeral protest and animal cruelty cases)  but flagged the exceptions for clinic personnel and the like as an issue here. The opinion noted that might be an issue as applied, but:

To be clear, the Act would not be content neutral if it were concerned with undesirable effects that arise from "the direct impact of speech on its audience" or "[l]isteners' reactions to speech." Ibid. If, for example, the speech outside Massachusetts abortion clinics caused offense or made listeners uncomfortable, such offense or discomfort would not give the Commonwealth a content-neutral justification to restrict the speech. All of the problems identified by the Commonwealth here, however, arise irrespective of any listener's reactions. Whether or not a single person reacts to abortion protestors' chants or petitioners' counseling, large crowds outside abortion clinics can still compromise public safety, impede access, and obstruct sidewalks.

The law here therefore was not problematic merely because it was specifically targeted to abortion clinics.  Roberts provides various possible options (while being clear to note it was up to a case by case determination if specific ones passed constitutional muster) to address the type of criminal actions flagged by supporters. It was noted in a previous comment the opinion did not respect the problems outside of clinics, or at least, just what is needed here.  The opinion does not ignore such things, but clearly more written from the p.o.v. of the challengers.  This is not that surprising since court opinions often are not a balanced approach that is sure to be totally fair to each side, given each equal time.  Likewise, in a tidbit I have yet to see  reference to in connection to this case, recall he was the advocate against a special federal means of relief in Bray v. Alexandria. 

I do think it would have been better if someone like Ginsburg wrote a concurring opinion (shades of Sotomayor in a recent ruling on tribal immunity) that made sure to provide a perspective from the p.o.v.  Some of the anger is clearly coming from those who see the Roberts Courts as ignoring the needs of abortion rights, deigning to take cases only when it helps the other side (Gonzalez v. Carhart and this case ... and one might add Hobby Lobby, if use of the word "abortion" there is basically asinine).  It might be too much all the same, but as a piece of a wider whole, this case might be able to be taken as an acceptable evil. After all, it has implications in other types of protests, protestors who a scorned by many too, but more simpatico to certain ideological p.o.v.s.  And, previous actions (see Shelby) suggest limited rulings might have a Trojan Horse vibe.

One thing the ruling here doesn't particularly share with Hill is a support of some right to privacy in public places from being approached by "sidewalk counselors" (differentiated from protestors who wave signs and the like), including in the limited area around clinics.  I'm wary of such a "right" myself though respect the argument that in certain places (including -- to quote -- law that "seeks to protect those who wish to enter health care facilities, many of whom may be under special physical or emotional stress, from close physical approaches by demonstrators") some weighing should take place. Even Stevens' opinion included a quote involving "unwarranted" advice and what happens after communication is "declined." This law assumes bad faith each and every time and doesn't wait for the decline. Contra Posner, also, there is sensible room in public places for personal interaction on issues, including of an emotional caliber. This includes those that result in offensive speech up to some point.*

I am wary though because a range of public places can be found appropriate here, including gay rights protestors outside of churches. Is only consensual (defined as only when asked) speech allowed there too? That is also but an example. And, given the remaining protest actions in place, I don't know how much good it does on balance. A video I linked, e.g., brought up murders motivating such laws.  I don't think that sort of thing, as compared to emotional trauma and harassment, will be prevented here.  Nor will it stop hateful protests and the like. Even free access, especially given alternative means (particularly with surveillance and security), will be aided only so much.  And, the balance is free speech in various locales. 

The opinion was labeled as "fair," which received push-back. The word might have been inapt.  Like Scott Lemieux and perhaps some of those who joined the opinion, perhaps "acceptable" might have been a better word. One that still would be rejected by many, though perhaps with a tad less spleen.  Also, as noted by SL and others (he links to Dahlia Lithwick), the Supreme Court has a buffer zone. If that zone is too big, fine enough, two wrongs don't make a right.  Nonetheless, I do think governmental buildings might not be the same thing -- at least, I would suggest more safety protections for individual justices is not unfair.

The opinion noted this law is fairly unique, which does not in itself make it illegitimate, but might be a red flag -- it shows there might be alternatives and other states with similar concerns found other ways to address them.  It could be though that Massachusetts, as a liberal state, was the only one who cared enough and had the wherewithal enough to see just what is necessary here.  Even supporters realize the buffer zone only does so much, especially since they scorn what girls and women still have to deal with (shades of Clint Eastwood's film The Gauntlet) to get medical care.

If I'm wrong about the result here, suffice to say, I probably am not about the bigger need to do all we practicably and legally can to protect everyone to with as much ease as possible to obtain what should be seen as an obvious fundamental human right.  Monday will bring one more case in that respect ...  on the whole, signs are evident and very ominous, and a chill wind blows.

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* This is a subject that has various sides and complexities as suggested by some of the links provided, which is just a small sample.  One link -- from a writer I take as liberal leaning from past content -- provides two books  that would provide additional context (see also, e.g., Generation Roe, which does not specifically deal with this issue that much).  The link to the "license to harass" book, e.g., provides this summary:

Nielsen relates the results of her interviews to statistical surveys that measure the impact of offensive speech on the public. Rather than arguing whether law is the appropriate remedy for offensive speech, she allows that the benefits to democracy, to community, and to society of allowing such speech may very well outweigh the burdens imposed. Nonetheless, these burdens, and the stories of the people who bear them, should not remain invisible and outside the debate.

The lack of a concurring opinion provides a one-sided view. Of course, this is also just a general sentiment. The rules here won't be absolute. Nonetheless, there is an importance to specific locale and technique here (person-to-person) too. See, e.g., here.