American Journal of Law & Medicine

Quieting Speech: Establishing a Buffer Zone around Reproductive Freedom

  I. INTRODUCTION  II. BUFFER ZONE LAWS AND CRISIS PREGNANCY CENTERS:      BACKGROUND AND RELEVANT LAW      A. Background         1. Buffer Zone Laws         2. CPC Regulation      B. Relevant Case Law         1. Buffer Zone Laws         2. CPC Regulation III. WHY FAVOR THE FIRST AMENDMENT OVER REPRODUCTIVE       FREEDOM?      A. The First Amendment Is a Fundamental Right      B. Statutory Interpretation (Textualism)  IV. WHY FAVOR REPRODUCTIVE FREEDOM OVER THE FIRST       AMENDMENT?      A. The Fourteenth Amendment Protects Reproductive Freedom      B. The Supreme Court's Buffer Zone      C. A Flexible Standard   V. AN ECONOMIC AND UTILITARIAN ARGUMENT FOR FAVORING       REPRODUCTIVE FREEDOM OVER FREE SPEECH  VI. CONCLUSION 

I. INTRODUCTION

The First Amendment and reproductive freedom have recently been pitted against each other on more than one occasion. (1) In June 2014, the Supreme Court held that a Massachusetts law creating a buffer zone in front of abortion-providing centers was a violation of the First Amendment. (2) In Maryland, the city of Baltimore and Montgomery County have passed ordinances to regulate crisis pregnancy centers ("CPCs"), which would effectively require the facilities to advertise that they are not medically licensed and do not provide abortion care. (3) The president of a group of CPCs describes CPCs as "organizations out to offer 'pro-life counseling;'" pro-choice proponents, however, "argue that the centers are deceptive, presenting themselves as medical facilities and even abortion clinics in order to lure pregnant women in, and then bombard them with guilt trips, emotional abuse, and even lies in an effort to keep them from having abortions." (4) In two cases, CPCs in Maryland have sued to enjoin these ordinances. (5)

From a legal standpoint, courts have held that the First Amendment is not absolute. (6) Similarly, a woman does not have an absolute legal right to government funding for an abortion (7) or employer-provided contraception. (8) But how do we balance these rights? What are the societal implications of preserving free speech over reproductive freedom, and likewise, what are the implications of preserving reproductive freedom over First Amendment rights? Through case studies of buffer zone laws and CPCs, this Note will offer a model of how courts should balance these rights to prevent detriment to society from an increase in unemployment and crime.

Part II details the background and relevant law related to buffer zones and CPCs. Parts III and IV discuss the arguments that scholars have raised concerning the preservation of free speech, and alternatively, the preservation of reproductive freedom. Lastly, Part V presents a novel argument for why we should place great value on reproductive freedom, possibly at the expense of free speech to a certain extent. Here, this Note argues that society should preserve reproductive freedom over free speech. To do otherwise could lead to abortion deterrence, which could lead to more unwanted pregnancies, which in turn could result in less than ideal environments for fetuses and children, which itself may lead to poor education, increased unemployment, and crime. This cascade effect would have a detrimental effect on society as a whole, and as long as this outcome is possible, we should be willing to regulate both CPCs and facilities that provide abortion care in a way that preserves reproductive freedom. In sum, though society places great value on both First Amendment rights and reproductive freedom, this Note concludes that society should be willing to give up some free speech and expression in return for broader reproductive rights.

II. BUFFER ZONE LAWS AND CRISIS PREGNANCY CENTERS: BACKGROUND AND RELEVANT LAW

A. BACKGROUND

1. Buffer Zone Laws

In 2007, the Massachusetts legislature amended its Reproductive Health Care Facilities Act (the "Massachusetts Law"), because of "harassment and violence ... including a shooting rampage at two facilities in 1994." (9) The 2007 version of the Massachusetts Law criminalized:

knowingly enter[ing] or remain[ing] on a public way or sidewalk adjacent to a reproductive health care facility within a radius of [thirty-five] feet of any portion of an entrance, exit or driveway of a reproductive health care facility or within the area within a rectangle created by extending the outside boundaries of any entrance, exit or driveway of a reproductive health care facility in straight lines to the point where such lines intersect the sideline of the street in front of such entrance, exit, or driveway. This subsection shall not apply to the following:--

(1) persons entering or leaving such facility;

(2) employees or agents of such facility acting within the scope of their employment;

(3) law enforcement, ambulance, firefighting, construction, utilities, public works and other municipal agents acting within the scope of their employment; and

(4) persons using the public sidewalk or street right-of-way adjacent to such facility solely for the purpose of reaching a destination other than such facility. (10)

The Massachusetts legislature drafted this law based on a similar law in Colorado (the "Colorado Law") that reads:

   A person commits a class [three] misdemeanor if such person    knowingly obstructs, detains, hinders, impedes, or blocks another    person's entry to or exit from a health care facility.... No person    shall knowingly approach another person within eight feet of such    person, unless such other person consents, for the purpose of    passing a leaflet or handbill to, displaying a sign to, or engaging    in oral protest, education, or counseling with such other person in    the public way or sidewalk area within a radius of one hundred feet    from any entrance door to a health care facility.... For the    purposes of this section, "health care facility" means any entity    that is licensed, certified, or otherwise authorized or permitted    by law to administer medical treatment in this state. (11) 

The city council in Portland, Maine passed a similar law in November 2013 requiring a thirty-nine foot buffer zone, (12) and New Hampshire passed a law in 2014 requiring a twenty-five foot buffer zone in front of abortion-providing centers. (13)

2. CPC Regulation

The topic of CPCs is controversial, as pro-choice proponents and pro-life proponents have different perspectives about what CPCs do. (14) Pro-choice proponents describe CPCs as organizations that "present[] themselves as medical facilities and even abortion clinics in order to lure pregnant women in, and then bombard them with guilt trips, emotional abuse, and even lies in an effort to keep them from having abortions." (15) On the other hand, pro-life advocates typically advertise CPCs as facilities that offer resources to pregnant women. (16)

In 2009, Baltimore passed an ordinance (the "Baltimore Ordinance") requiring CPCs to advertise that they do not provide abortion services. (17) The New York City council passed a similar law "to ensure that women are fully informed and not deceived ... [because] [w]omen need to know, they have a right to know, whether they are consulting with a licensed medical provider." (18) San Francisco, California and Montgomery County, Maryland have also passed ordinances similarly aimed at providing knowledge to current and prospective patrons of the centers about what services the facilities do and do not provide and whether the centers are licensed medical facilities. (19) More specifically, the current Montgomery County law requires:

   public signage ... to be prominently displayed in the waiting rooms    of certain [CPCs] that state[] "the Center does not have a licensed    medical professional on staff' and "the Montgomery County Health    Officer encourages women who are or may be pregnant to consult with    a licensed health care provider." (20) 

B. RELEVANT CASE LAW

It is important to understand recent case law regarding buffer zones and CPCs in order to fully review the tension between the First Amendment and reproductive freedom.

1. Buffer Zone Laws

Massachusetts enacted the Massachusetts Law in 2000 (the "2000 Law") in an effort "to address clashes between abortion opponents and advocates of abortion rights that were occurring outside clinics where abortions were performed." (21) The 2000 Law,

   established a defined area with an [eighteen]-foot radius around    the entrances and driveways of such facilities.... [where] no    one ... could knowingly approach within six feet of another    person--unless that person consented--"for the purpose of passing    a leaflet or handbill to, displaying a sign to, or engaging in oral    protest, education, or counseling with such other person." (22) 

"[S]ome Massachusetts legislators and law enforcement officials had come to regard the 2000 [Law] as inadequate" (23) and "unenforceable." (24) Thus, in 2007, the Massachusetts legislature amended the 2000 Law to increase the buffer zone radius. (25) In McCullen v. Coakley, individuals "alleging that [the Massachusetts Law] violate[d] the First and Fourteenth Amendment, both on its face and as applied" brought suit against Attorney General Martha Coakley and other Massachusetts officials in 2008. (26) Plaintiffs sought an injunction. (27) After an extensive procedural history, the United States District Court for the District of Massachusetts and the Court of Appeals for the First Circuit ultimately upheld the Massachusetts Law. (28)

After granting certiorari, the Supreme Court reversed the District Court and Appellate Court and held that the Massachusetts Law violated the First Amendment because, although strict scrutiny was unnecessary, the Massachusetts Law was not "narrowly tailored to serve a significant governmental interest." (29) The Court noted that a "content-neutral" regulation "must not 'burden substantially more speech than is necessary to further the government's legitimate interests.'" (30) The Court held that the Massachusetts Law "burden[ed] substantially more speech than necessary to achieve the Commonwealth's asserted interests." (31) The Court also emphasized the importance of "public streets and sidewalks" in the expression of speech. (32) Lastly, the Supreme Court concluded that Massachusetts had alternative options to the Massachusetts Law that would "serve its interests just as well, without substantially burdening the kind of speech in which petitioners wish[ed] to engage." (33)

Other states have attempted to impose similar restrictions on public spaces adjacent to abortion clinics. On July 8, 2014, the Portland City Council repealed its buffer zone ordinance and declared "an Emergency[,] in order that it take effect immediately" in response to McCullen, (34) Governor Maggie Hassan was hopeful that the New Hampshire law would not be invalidated "because it is narrower than the Massachusetts [L]aw...." (35)

In contradistinction to the Massachusetts Law, the Supreme Court upheld the Colorado Law in Hill v. …

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