For Immediate Release - November 15, 2013

AG Coakley Urges U.S. Supreme Court to Uphold Buffer Zone Law

Argues Law Strikes Appropriate Balance Between Rights of Patients and Free Speech

BOSTON – Attorney General Martha Coakley’s Office has filed a brief with the U.S. Supreme Court pdf format of    12-1168  today defending the constitutionality of the Commonwealth’s buffer zone law. The statute protects public safety and patient access to reproductive healthcare facilities by creating a 35-foot buffer zone around clinic entrances and driveways.

“Massachusetts’ buffer zone statute strikes the right balance between ensuring safe access to medical facilities and preserving freedom of expression,” said AG Coakley.  “This law has enhanced public safety in a fair and constitutional manner.”

In the brief pdf format of    12-1168  , the AG’s office argues that the current 35-foot buffer zone law is a content- neutral and narrowly-tailored law that does not target any particular message. The brief argues that the law serves significant government interests in protecting public safety and safe access to reproductive health clinics while preserving ample opportunities for communication outside clinics. The AG’s office maintains that the law is a valid regulation of the time, place, and manner of speech in an area that has been congested and even unsafe.

As part of its Supreme Court brief, the AG’s office describes the more than 20-year history of conflict outside clinics and the evolution of the buffer zone law in Massachusetts. The brief documents the history of blockades and even violence at reproductive health clinics, beginning in the late 1980s and often involving hundreds of protestors. In 1994, a shooting killed two clinic employees and injured several others.

 In 2000, the state passed its first buffer zone law, an 18-foot floating buffer that failed to prevent protestors from blocking entrances and intimidating patients. After a decades-long attempt to strike the right balance, Massachusetts finally settled on the fixed 35-foot buffer zone law currently in place. 

In May 2007, AG Coakley testified in support of the passage of the new legislation. The law, which was signed by Governor Deval Patrick and took effect on November 13, 2007, prohibits any person from knowingly entering or remaining within public ways and sidewalks inside the 35-foot buffer zone. The buffer zone is in effect only during the clinic’s business hours and only if the buffer zone is clearly marked and posted. This new law has been proven an effective tool in allowing access while providing plenty of opportunity for protesters, including the petitioners challenging the law, to communicate their message. 

Since the revised law was enacted, it has been the subject of litigation. In January 2008, five plaintiffs challenged the constitutionality of the new law, alleging that the law violated their right to free speech. In August 2008, U.S. District Judge Joseph Tauro rejected the plaintiffs’ claims. Plaintiffs then appealed to the U.S. Court of Appeals for the First Circuit. In July 2009, the First Circuit upheld the federal district court’s decision that the buffer zone statute, on its face, is a constitutional means to protect public safety and patient access to such clinics, and does not violate the First Amendment. 

The case, however, was sent back to District Court to address how the law was being applied in specific circumstances. In February 2012, U.S. District Judge Joseph Tauro again rejected plaintiffs’ claims that the statute, as it applies to their activities at the Planned Parenthood clinics in Boston, Worcester and Springfield, violated their constitutional right to free speech. The court held that the buffer zone, as applied at these locations, leaves open ample alternative channels of communication and thus is a valid regulation of the time, place, and manner of the plaintiffs’ speech. In January 2013, the U.S. Court of Appeals for the First Circuit upheld the lower court’s ruling.

On June 24, 2013, the U.S Supreme Court granted plaintiffs’ petition for certiorari and agreed to hear the case. Argument is currently scheduled for January 15, 2014.

In three previous cases, the U.S. Supreme Court has upheld the constitutionality of two federal court injunctions and a Colorado statute that created buffer areas outside of certain medical facilities. Currently, three states, including Massachusetts, and several municipalities have buffer statutes, ordinances, or injunctions designed to promote public safety and to protect patient access to clinics and other medical facilities.

This matter is being handled by Assistant Attorney General Jennifer Grace Miller, chief of the AG’s Government Bureau, as well as Assistant Attorneys General Sookyoung Shin, also of AG Coakley’s Government Bureau, and Jonathan B. Miller, chief of the AG’s Civil Rights Division.

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