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Supreme Court Decides Pro-Lifers Have 1st Amendment Right to Public Property Outside Abortion Clinics

Overturns Massachusetts Buffer Zone Law

The U.S. Supreme Court has struck down a 2007 Massachusetts law that created an expansive “buffer zone” around the state’s abortion clinics. The law restricted access to abortion clinics for those providing counseling to incoming patients.

“In a brazen affront to the First Amendment, Massachusetts government officials had sought to use the threat of arrest and criminal conviction to silence those offering women life-affirming alternatives to abortion,” said AUL President and CEO, Dr. Charmaine Yoest. “The Supreme Court rightly rejected this unlawful attempt to deny pro-life Americans their First Amendment rights.”

In a unanimous decision in McCullen v. Coakley, the Court held that the Massachusetts law violates the First Amendment.

Americans United for Life filed an amicus curiae brief in the case on behalf of 40 Days for Life, a community-based, peaceful pro-life campaign that takes a “determined, peaceful approach to showing local communities the consequences of abortion in their own neighborhoods, for their own friends and families.”

The briefs demonstrated that the Massachusetts law violated the First Amendment rights of 40 Days for Life by establishing a 35-foot “no-pro-life” speech zone outside abortion facilities where no alternatives to abortion could be offered. AUL attorneys argued that the unconstitutional law impermissibly forced pro-life speakers to either “shout or be silent” and effectively prohibited speech by those who engage in personal, direct, and peaceful counseling with women considering abortion.

Importantly, the 2007 law discriminated against peaceful pro-life activists by prohibiting them from “enter[ing] or remain[ing] on a public way or sidewalk adjacent” to a stand-alone abortion facility. But this did not apply equally to everyone. Abortion clinic employees or agents acting within their scope of employment were free to enter the “zone” and speak with women including encouraging them to have abortions.

This discriminatory “no-enter zone” only targeted those opposed to abortion and permitted police to arrest and charge any person engaged in pro-life advocacy. Prohibited conduct under the law included speaking, praying, wearing t-shirts, hats, or buttons, displaying signs, leafleting, and making consented approaches with women or others entering the abortion clinic.

The law effectively sought to prohibit all methods of communicating a pro-life message on public sidewalks—a venue which the Supreme Court has called “a prototypical public forum” where the First Amendment is “at its most protected.”

“The Massachusetts law impermissibly discriminated against and censored pro-life Americans. The pro-abortion position could be represented in the zone, while the pro-life view point was strictly prohibited under threat of criminal sanctions,” Yoest noted.

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