Thursday, January 9, 2014
From my colleague, Professor Wilson Huhn, Associate Director of Akron's Center for Constitutional Law, one of four center's established by Congress. A summary of the January US Supreme Court case, McCullen v. Coakley, revisiting abortion protest laws.
McCullen v. Coakley:
In this case the Supreme Court will revisit the question of the constitutionality of laws prohibiting protests near abortion clinics. In previous cases such as Hill v. Colorado, 530 U.S. 703 (2000) the Court split 5-4 in upholding most of these laws, with Justice Sandra Day O’Connor in the majority and Justice Anthony Kennedy dissenting. Since then Justice O’Connor has been replaced on the Court by Justice Samuel Alito.
Under consideration in this case is a Massachusetts statute that creates a 35-foot “buffer zone” banning protests around reproductive health care facilities. The petitioners wish to approach closer to the clinic, and challenge the constitutionality of the law under the doctrine of Freedom of Expression.
The Supreme Court will have to decide the following issues:
(1) Which category of laws affecting speech this law falls into; that is, is the law is content neutral, content based, or viewpoint based; and
(2) Whether the law satisfies the standard that is applicable to that particular category.
If the law is found to be viewpoint based (that is, if the law was adopted because of the particular position that protesters take on the issue of abortion), then the law would be per se unconstitutional.
If the law is found to be content based (that is, if the law was adopted because it dealt with the subject of abortion), then in order to be constitutional the law would have to pass strict scrutiny, that is, the law would have to be the least restrictive means of achieving a compelling governmental interest. It is unlikely that this law could survive strict scrutiny.
If the law is found to be content neutral (that is, if the law was adopted not because of the ideas being expressed by the protestors but because of the danger that the protests posed to clinic patients and staff) then in order to be constitutional the law would have to be narrowly tailored to serve a legitimate state interest. This is a relatively weak form of intermediate scrutiny, and it is likely that the Court would uphold the law if it is found to be content neutral.