First Circuit Upholds Clinic Buffer Law

The First US Circuit Court of Appeals in Boston ruled Wednesday that a Massachusetts law that bans protesters from a 35-foot buffer zone around abortion clinic entrances does not infringe on the free speech rights of protesters.

The opinion, written by Rhode Islander Bruce Selya (in senior status), begins as follows:

For more than three decades, those who advocate for a woman’s right to choose and those who advocate for the right to life (based on a belief that life begins at the moment of conception) have struggled for advantage in the marketplace of ideas. A series of pitched battles, forming a part of this struggle, has been waged at free-standing abortion clinics, where protestors and anti-abortion counselors seek to dissuade prospective patients, shame clinic workers, and call attention to what they perceive as the evils of voluntary terminations of pregnancies. In this campaign Massachusetts has been a battleground state.

This appeal arises out of yet another skirmish in this chronicle of discord. In a very real sense, genesis of the appeal dates back to the dawning of the millennium. At that time, the Massachusetts legislature enacted a statute that created a floating buffer zone around the entrances, exits, and driveways of abortion clinics throughout the state. Footnote

Given the benefit of hindsight, the legislature revised the law seven years later. The modified version of the statute replaced the floating buffer zone with a 35-foot fixed buffer zone. This appeal involves a multi-pronged facial challenge to the constitutionality of the modified statute.

In a thoughtful and comprehensive opinion, the district court rejected the facial challenge in all its iterations and refused to enjoin enforcement of the new law. McCullen v. Coakley, 573 F. Supp. 2d 382 (D. Mass. 2008). After careful consideration of the record, the parties’ briefs, some helpful friend-of-the-court briefs, and the arguments made orally, we affirm.


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