McCullen v Coakley, 573 US ___ (2014) (26 June 2014)
The United States Supreme Court has overturned a Massachusetts law creating a 35 foot buffer zone outside reproductive health facilities. The Supreme Court held that the law violates the first amendment of the US Constitution because, while the buffer zone serves the State’s legitimate interests in maintaining public safety and preserving access to healthcare, it ‘burden[s] substantially more speech than is necessary’.
The Massachusetts Reproductive Health Care Facilities Act (the Act), makes it a crime to ‘knowingly enter or remain on a public way or sidewalk adjacent to a reproductive healthcare facility within a radius of 35 feet of any portion of an entrance, exit or driveway…’, providing exceptions for patients, staff and pedestrians. The Act is intended to promote public safety, access to healthcare and the unobstructed use of footpaths.
The petitioners, Eleanor McCullen and others, are individuals who approach women outside facilities and attempt to dissuade them from having abortions. They argued that the Act violates free speech rights protected under the First Amendment to the US Constitution by impeding their efforts to engage patients in conversation and distribute literature.
In First Amendment cases the US Supreme Court will apply one of two tests. If the restriction on speech is based on the content or viewpoint expressed, the restriction must be the least restrictive means of achieving a compelling State interest. Alternatively, if the regulation is unrelated to the content of the speech the restriction must be narrowly tailored to serve a significant governmental interest and leave open alternative channels for communicating the information.
The majority decided that the Act is neither content nor viewpoint based and accordingly considered whether it was ‘narrowly tailored’ to achieve the State’s purpose. This aspect of the judgement is significant as it effectively preserves the Supreme Court’s finding in Hill v Colorado which created floating buffer zones around individuals in the vicinity of abortions clinics.
The majority concluded that the buffer zones in the Massachusetts Act ‘burden substantially more speech than necessary to achieve the Commonwealth’s asserted interests.’ The judgement sets out approaches which the Court says would be capable of achieving the State’s aims while leaving more space for the exercise of free speech. These measures include imposing criminal and civil penalties, including injunctive relief, for obstruction, intimidation or harassment outside reproductive health facilities.
The respondents argued that such measures had been tried and were ineffective. The Court was of the view that that the respondents had provided insufficient evidence in support of this argument. In particular, the majority pointed to the fact that the State had not brought a single prosecution under laws applying to anti-abortion protesters in 17 years and the last injunctions were issued in the 1990s.
The minority issued a concurring opinion opposing the position that the Act is content neutral. In the minorities’ view, the Act targets anti-abortion speech and should have been subject to the test of ‘strict scrutiny’ which would have required the law to be the ‘least restrictive’ means of achieving the States’ objective.
McCullen v Coakley can be considered in light of ongoing debate about women’s access to reproductive healthcare facilities in Australia. Anti-abortion groups, including a group known as the Helpers of God’s Precious Infants (HOGPI), operate outside Australian clinics. Unlike the US example, Tasmania is the only State in which local authorities have made efforts to ensure that patients and staff can access clinics free from intimidation and harassment (in 2013 Tasmania enacted a law which, among other things, established an access zone of 50m outside abortion clinics).
Earlier this year the Human Rights Law Centre and Maurice Blackburn issued proceedings on behalf of the East Melbourne Fertility Control Clinic seeking to compel Melbourne City Council to enforce existing laws that would protect the clinic’s patients and staff from bullying and harassment. The legal questions in the case against the Melbourne City Council differ from those before the US Supreme Court. Nevertheless, three aspects of the US Supreme Court’s decision are of note.
First, the full bench of the Supreme Court was exceedingly concerned to protect ‘innocent individuals and their speech’. It was this concern that underpinned the majority’s rejection of buffer zones that apply to all anti-abortion activists operating outside clinics in favour of criminal and civil action against ‘the precise individuals and the precise conduct causing a particular problem’.
The reference to ‘innocent individuals’ appears to pertain to people such as the petitioners. The Court accepted the petitioners’ account of their activities as ‘personal, caring, consensual conversations.’ Notably absent from the Court’s judgement was consideration of the way in which women attending the clinics experience their interaction with anti-abortion activists.
Australian groups including HOGPI similarly claim that they assist women by peacefully offering information to patients. Women and staff attempting to access the East Melbourne Fertility Control Clinic experience HOGPI’s activities in a vastly different way. Patients and staff report that HOGPI regularly chase women down the street, block their path to the clinic, call them ‘murderers’ and ‘whores’, display photos of dismembered foetuses and distribute pamphlets containing misleading medical information. Claims that Australian access zones might impede the activities of ‘innocent individuals’ should be viewed with some scepticism.
Second, the decision leaves plenty of scope for legislatures and local authorities to act to protect women’s access to healthcare facilities. Several examples of permissible restrictions were offered by the Court, notably criminal prosecutions and injunctions. Such measures are available in Australia, but the relevant authorities have generally refused to apply them. In McCullen v Coakley the Supreme Court acknowledged that there may be some practical inconvenience associated with civil and criminal prosecutions, but asserted that if authorities were serious about protecting public safety and access to healthcare, they would take the necessary steps. The same may be said about the Melbourne City Council’s inaction in respect of the HOGPI.
Finally, under the test applied by the US Supreme Court, buffer zones would be a permissible limitation on free speech if a legislature could provide evidence showing that other measures were ineffective or not appropriate. In addition, US judicial interpretation of the First Amendment provides much more limited scope for restrictions on free speech than human rights laws such as article 19 on the International Covenant on Civil and Political Rights and section 15 of the Victorian Charter of Human Rights and Responsibilities Act (2006)). This case should therefore not prevent Australian states’ from introducing access zones in Australia.
The full decision can be found here.
Rachel Ball is Director – Advocacy and Campaigns at the Human Rights Law Centre.