Boston University School of Law professor Sean Kealy, instrumental in the creation of the “buffer zone” abortion protester law to be considered by the U.S. Supreme Court in the near future, said he expects the law will be upheld as constitutional once again.
The country’s highest court has agreed to consider challenges to the Massachusetts law that enforces a 35-foot “buffer zone” past which no protesters may enter around abortion clinics such as the Planned Parenthood located at 1055 Commonwealth Ave. BU students may recognize this buffer zone as noted by a white line surrounding the Planned Parenthood building.
Kealy helped to write the original buffer zone law as a part of the Joint Committee on Criminal Justice from 1999 to 2002.
“There was a very thoughtful balancing between the interests of the protesters and the interests of the patients [in creating the law],” Kealy said. “The restrictions only restrict speech as far as is necessary to protect the rights of the patients.”
On June 24, the Supreme Court issued an order granting a writ of certiorari to petitioners who believe that the abortion clinic buffer zone law, which originally passed in 2000 and was expanded in 2007, infringes on protesters’ First Amendment rights.
In order for a piece of legislation that limits free speech in a public place to be constitutional, it must withstand what is known as “strict scrutiny,” Kealy said.
“Basically, the law has to be narrowly tailored as possible in order to meet a stated and very real government need,” Kealy said. “… The government has to have a very real reason as to why they want to restrict free speech.”
While writing the bill, lawmakers gathered evidence showing that protesters, some of whom were loud and disruptive, interfered with patients’ access to healthcare, he said.
“What we found [as legislators] is that we were balancing two very important rights: the right to free speech and the right to privacy, but also the right of patients to get healthcare in a setting that was capable of providing that healthcare,” Kealy said.
Violence at a Brookline abortion clinic in the mid-1990s may have been a factor in Mass. legislators’ decision to create a buffer zone law, Kealy said. In 1994, abortion opponent John C. Salvi III shot and killed two clinic employees in Brookline and wounded several others.
“We had that real incident of death [in Brookline],” Kealy said. “… The problem is, though, a person like Salvi isn’t going to be deterred by a white line on the sidewalk.”
Planned Parenthood League of Massachusetts CEO Martha Walz said the law ensures privacy and safety to women receiving Planned Parenthood’s services in a statement issued after the Supreme Court agreed to hear the case.
“The buffer zone law allows people seeking health services to do so without fear of violence, harassment or intimidation,” Walz said in a subsequent email. “Thanks to the buffer zone, patients are more easily and safely able to enter and exit our health centers.”
Protesters at Planned Parenthood locations in Massachusetts, including the company’s satellite location near BU’s West Campus, interfere with a woman’s right to seek information about healthcare and make independent decisions without feeling judged, Walz said.
“Unfortunately, we do experience regular protestors at our health center on Commonwealth Avenue, who seek to coerce and shame women to prevent them from seeking health care,” she said.
The abortion clinic buffer zone law was originally upheld by a district court in February 2012 and later the U.S. Court of Appeals for the First Circuit in Jan. 2013.
“We are delighted and excited and looking forward to going to the Supreme Court to argue our case,” said Salem Attorney Philip Moran, who represents the seven petitioners involved in the case.
Moran said he and the petitioners believe the district court and federal appeals court were wrong in their decision to uphold the law as constitutional.
“We don’t feel that the law is necessary and [we feel] that the legislature passed it by only listening to one side,” Moran said. “It’s an unnecessary and unconstitutional infringement of the petitioners’ right to utilize that sidewalk for peaceful protests.”
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