Thursday, June 26, 2014
In today’s other decision, McCullen v. Coakley, all nine justices concluded that Massachusetts’ abortion clinic buffer zone law violated the First Amendment. So here we have yet another opinion unanimous in the judgment. That makes 48 out of 71 decisions thus far this term, or 67.6 percent.
Writing for the Court, the Chief Justice concludes that the statute was content-neutral, and thus avoids strict scrutiny, but is not narrowly tailored because it burdens more speech than is necessary to advance the government’s interests in ensuring clinic access and public safety. Four justices (Scalia, Thomas, Kennedy, and Alito) concurred in the judgment would have gone further. The opinion is here.
I previously blogged about the case here.. Some observations on today's option:
1. It did seem to matter to the Court that this was legislation rather than a remedy. The opinion notes that the government did not seek "one single prosecution or injunction." Thus suggesting, as the Court has previously held in Madsen v. Women's Health Center (1994), that prophylactic injunctions to remedy particular instances of abortion protesting problems are ok.
2. The Court calls the protestors' speech "personal, caring, consensual conversation" that is just trying to "help" the women. How is intimidating, harassing, inflammatory, confrontational personal assault caring and helpful? The patients and employees might call these "fighting words." Such a characterization perpetuates the paternalistic and protectionist rhetoric of the Gonzales v. Carhart (2007) abortion decision to help women too emotionally fragile and incompetent to exercise their own autonomy. What was Ginsberg thinking in signing on to this opinion?