The U.S. Supreme Court held oral arguments today in a case challenging the Massachusetts law that sets a 35-foot buffer zone around abortion clinics, inside of which activists cannot demonstrate. Lower federal courts have so far found the law Constitutional. And the U.S. Supreme Court in 2000 upheld a Colorado law implementing its own buffer zone. Even so, legal analysts think it might not go the government’s way this time. There are three frequently cited reasons for that skepticism:
1. The Massachusetts law is different from the Colorado one, so the Court could take a different opinion on it without overturning their precedent. The Massachusetts law singles out abortion clinics, not just health clinics, and makes an exception for the abortion clinic’s employees. ScotusBlog’s Amy Howe summarizes the protesters’ argument that, “by creating such an exception, the Massachusetts law—unlike the law at issue in Hill—discriminates based on the views of the person who is speaking: employees of the clinic can go into the buffer zone and say anything related to their jobs, but protesters cannot.” Massachusetts argues that the law was implemented to prevent action from both abortion opponents and supporters, and so it doesn’t discriminate based on a speaker’s views.
2. The Supreme Court doesn’t look like it did in 2000. In Hill v. Colorado, the justices ruled 6-3 in favor of the buffer zone law. Four of those six justices in the majority have since retired. Two of them were replaced with conservatives Samuel Alito and John Roberts. All three dissenters are still on the court. That makes finding a five justice majority for the Massachusetts law more difficult this time around.
3. This Supreme Court often finds for parties claiming an infringement on the right to free speech. In rulings on violent video games, protests at funerals, lying about military honors, or restricting political donations, the court has shown that even on controversial or tangled issues, it will support a strong right to free speech. The protesters are making this case about that issue, and history suggests they’re likely to find sympathy.
On the other hand, Massachusetts is making the issue about safety and protection of the Court-supported right to abortion. As ScotusBlog’s Lyle Dennison writes, “An important factor in this choice will be how seriously the Court takes the assertion, by the state and the Justice Department, that the environment around Massachusetts clinic is one of dangerous hostility.”
Of course, there’s always risk in trying to read the court’s tea leaves, even after a tone is set in oral arguments.(Recall the panic after the Affordable Care Act oral arguments for the most memorable example in recent years of the conventional wisdom getting it wrong.) But those are the issues that the Court will wrestle with today as the state’s law hangs in the balance.
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