Stone: Understanding the Supreme Court's Abortion-Protest Decision
In yesterday's decision in McCullen v. Coakley, the Supreme Court considered the constitutionality of a Massachusetts statute that made it a crime for any person knowingly to stand on a "public way or sidewalk" within 35 feet of an entrance or driveway to any place, other than a hospital, where abortions are performed. The law was designed to eliminate clashes between abortion opponents and advocates of abortion rights that had occurred outside clinics where abortions were performed.
The law was challenged by individuals "who approach and talk to women outside such facilities, attempting to dissuade them from having abortions." The Act exempted persons entering or leaving the facility, employees or agents of the facility, law enforcement and similar personnel, and persons using the sidewalk area solely for the purpose of reaching another destination.
The Court, in an opinion by Chief Justice Roberts, invalidated the law. To appreciate the First Amendment issues presented in the case, it is necessary to have some understanding of First Amendment doctrine. In a very general sense, in evaluating the constitutionality of law restricting speech, the Court has drawn an important distinction between laws that restrict speech because of its message ("content-based" laws) and laws that restrict speech without regard to its message ("content-neutral" laws).