Less than two weeks after a Supreme Court ruling struck down a Massachusetts law requiring protesters to stay outside a 35-foot buffer zone around abortion clinics, cities around the country are moving to repeal similar laws or are not enforcing the buffer zones.
That is leading abortion rights advocates to worry that women may not seek the medical care they need because of fear of being harassed or intimidated outside clinics.
"Ever since that decision, many women have had their access denied as a practical matter," Massachusetts Atty. Gen. Martha Coakley said last week.
On Monday night, the city council in Portland, Maine, repealed an ordinance that required protesters to stay 39 feet away from a women's health clinic downtown and told staff to suggest alternatives.
Last week, the city of Burlington, Vt., decided to stop enforcing parts of an ordinance prohibiting people from demonstrating within 35 feet of an abortion clinic. Another segment of the ordinance, which makes it a crime to block people from entering a clinic, will still be enforced.
And the city of Madison, Wis., has stopped enforcing an ordinance requiring protesters to stay 8 feet away from people entering or exiting a clinic.
In Boston, abortion clinic protesters have already changed their behavior in the wake of the June 26 Supreme Court decision on McCullen vs. Coakley. They now stand within the yellow line that had been painted on the pavement after Massachusetts passed its law in 2007. But they don't stay there. Instead, they now follow patients to the door of the clinic on busy Commonwealth Avenue.
Marty Walz, head of
In the Massachusetts case, the Supreme Court said that the state's buffer zone ordinance, which prohibited protesters within 35 feet of the clinic, was unconstitutional.
However, the justices let stand a 2000 decision in another case, Hill vs. Colorado, which prohibits protesting and distributing literature within 8 feet of someone entering a healthcare facility. Such "bubble zone" ordinances are common across the country, including in cities such as Chicago and states such as Colorado.
But in a concurring opinion, Justice
"Protecting people from speech they do not want to hear is not a function that the First Amendment allows the government to undertake in the public streets and sidewalks," Scalia wrote.
That is leading some attorneys to question whether even the bubble zone ordinances are constitutional in the wake of McCullen. And it is why Michael May, the city attorney in Madison, Wis., decided to stop enforcing his city's bubble zone ordinance.
"In light of the Supreme Court decision, we suspended enforcement to figure out what, if anything, is left of the ordinance," May said. "If you read the decision, I'm not sure there's much of Hill left."
Anti-abortion advocates say the bubble zone ordinances are confusing and often enforced incorrectly, and predicted they will be the next to fall. How long it will take, they said, depends on when legal challenges are brought, and whether cities decide to try defending the ordinances in court.
"Will these municipalities be willing to spend taxpayer dollars losing these cases as they move forward?" asked Eric Scheidler, executive director of the Pro-Life Action League.
Abortion rights advocates say they're frustrated with the Supreme Court ruling, contending that the buffer zone laws are the only way to keep patients safe. In Portland, Maine, for instance, the ordinance went into effect last November because the city said women's safety was at risk without it.
"It was a dramatic change for us," said Nicole Clegg, a spokeswoman for Planned Parenthood of Northern New England. "Before, when people had to walk through this gauntlet, the first interaction we had with patients was addressing what they just experienced rather than focusing on their healthcare."
The ordinance was challenged in court this spring, and the judge in the case had put things on hold until the Supreme Court decision.
Still, some ordinances remain in effect, including last month's decision in New Hampshire to establish a 25-foot buffer zone around clinics in the state. And in Pittsburgh, Pa., which in 2005 enacted a law creating a 15-foot buffer zone around clinics, city officials have said the law will stand.
"As of now, our law department and police think that it is narrowly tailored enough," said Timothy McNulty, a spokesman for Pittsburgh Mayor Bill Peduto. The Pittsburgh law already was challenged in court, and in 2009, a judge issued a permanent injunction that got buy-in from a number of parties, allowing the law to stand, McNulty said.
A law in San Francisco that is similar to the Massachusetts ordinance also will stand for now, said Beth Parker, chief legal counsel for Planned Parenthood Affiliates of California. San Francisco tried numerous other ordinances to keep protesters away from clients, but the buffer zone was the only one that was effective, she said.
"There are differences" between that law and the Massachusetts one, Parker said, namely that the San Francisco ordinance creates a 25-foot buffer zone, as opposed to the 35-foot zone in Massachusetts. "We have not heard discussions of appealing it," she said.
The changing laws regarding buffer zones come as some states further restrict access to abortion clinics.
Louisiana, for instance, recently passed a law that requires doctors performing abortions to have admitting privileges at a nearby hospital. Abortion rights groups say the law will force 4 out of 5 clinics in the state to close by Sept. 1.
Louisiana's neighbor to the east, Mississippi, has one remaining abortion clinic. To Louisiana's west, in Texas, many clinics are shutting down in the wake of state legislation.