With the discussion of the Supreme Court’s ruling in McCullen v. Coakley centered on the future of access to clinics it’s easy to overlook the powers that remain to regulate clinic-front activism and what they could mean for the future of abortion politics. The Court’s majority ruling suggests that clinics should steer away from asking legislatures to craft regulations involving buffer zones of various types. It also, however, asserts that more regulatory latitude may exist for clinics via case-by-case injunctions.
While injunctions, combined with standing state and federal laws like the Freedom of Access to Clinic Entrances Act, supply a significant means for clinics to continue to regulate what happens in front of their doors, this ruling is a push toward individualizing abortion-clinic conflicts and shifting the costs of regulation. These issues should be of greater concern to those who support abortion access than the worry that McCullen will usher in a new wave of clinic blockades.
The recently defeated Massachusetts buffer zone law created a 35-foot no-entry zone around clinic entrances and driveways for all but a few specified categories of people. According to the Court, the Commonwealth’s no-entry zone was exceptional among federal and state laws that control activism in front of clinics. It was also deemed unconstitutionally excessive given the lack of evidence of regular clinic blockades with the exception of Saturdays in front of the Boston clinic.
Until a clinic eventually secures an injunction—an expensive and lengthy process with an end that is by no means certain, especially in districts with unsympathetic judges—the clinic members and patients must endure the various harms of the conflict.
Although Massachusetts is far from alone in employing some form of buffer zone regulation, its law, in terms of being struck down, is somewhat unique in the scope of Supreme Court cases regarding the regulation of clinic-front activism. Against the protests of Justices Scalia, Thomas, and Kennedy, the Court majority allowed its 2000 ruling in Hill v. Colorado—which affirmed a state law that essentially enabled those accessing clinics to silence anti-abortion activists within 100 feet of the entrance to a health care facility—to stand. It also did not touch the Freedom of Access to Clinic Entrances Act or alter its collection of rulings regarding injunctions that create various types of fixed buffer zones in front of clinics. In fact, the Court majority in McCullen strongly endorsed “the First Amendment virtues of targeted injunctions as alternatives to [the] broad, prophylactic measures” as they saw in the law that they had just struck down.
Considering the regulatory means that remain in place, an immediate large-scale return to aggressive anti-abortion activism is unlikely. However, select clinics around the country, such as the aforementioned one in Boston, face increasing isolation, uncertainty, and costs for regulating events like the Saturday blockades.
Injunctions operate similarly to restraining orders in that individuals and entities apply for them from courts on a case-by-case basis and, when won, they govern the relationship between the affected parties. In order to seek an injunction a clinic must first endure some form of illegal activity or harassment, or have strong evidence of its imminent occurrence. Until a clinic eventually secures an injunction—an expensive and lengthy process with an end that is by no means certain, especially in districts with unsympathetic judges—the clinic members and patients must endure the various harms of the conflict.
Injunctions also continue to be costly for clinics once they are won. Clinics have to pay lawyers to file, and the history of abortion politics shows that they must continue to pay lawyers to both defend and enforce injunction claims that have been secured. These financial costs are largely transferred to the state when there is a law that regulates clinic-front activism, but in states where injunctions rule the afflicted party must bear the bulk of these costs, which can become significant burdens.
While the Court may accept the above as the assorted costs of a robust First Amendment, and clinics that are subject to aggressive activism may eventually be able to control what occurs on their sidewalks through injunctions, it bears noting that the individually affected clinics and the women accessing them will likely now bear these costs alone.