The US Supreme Court recently heard oral argument in McCullen v. Coakley, involving a Massachusetts statute that creates 35 foot buffer zones around abortion clinic entrances and driveways. Enacted in response to a long and well documented history of intimidation, obstruction, and violence outside abortion clinics, the law seeks to ensure the safe passage of women into such facilities and to maintain safety and order on the public streets surrounding them.
In the past, the Supreme Court has upheld similar measures imposed by court order as well as by statute. Most recently, in Hill v. Colorado, the court upheld a state statute making it unlawful for anyone, within 100 feet of the entrance of a healthcare facility, to approach within eight feet of another person without consent for the purpose of passing a leaflet or handbill, displaying a sign, or engaging in oral protest, education, or counseling.
The decision in Hill generated controversy among First Amendment scholars, some of whom thought that the court improperly classified the law as content neutral, even though, on its face, it distinguishes among speech based on its content. In making the “content neutrality” determination, the court relied on the fact that the statute had a neutral justification (i.e., one unrelated to the expressive content of speech)—namely, to ensure safe passage of those seeking to enter abortion clinics and to maintain safety and order on public streets—despite its differential treatment of speech amounting to protest, education, or advocacy. Although the court’s decision in Hill is less than fifteen years old and was adopted by a six member majority, one of the questions presented in McCullen is whether Hill should be overruled. Many commentators and Supreme Court watchers believe the court will answer that question in the affirmative given the criticism aimed at Hill and the changes in the composition of the court since that case was decided in 2000.