MCC Opposes Senate Bill 148, Concerning So-Called Buffer Zones Around Abortion Facilities

MCC Testimony Against Senate Bill 148

Statement of Most Rev. Daniel P. Reilly, Bishop of Worcester

Text of Senate Bill 148

To: Members of the Joint Committee on Criminal Justice

From: Daniel Avila, Esq., Massachusetts Catholic Conference

Re: Constitutional Defects of Senate Bill 148, the so-called "buffer zone" act

Date: April 14, 1999

Senate Bill 148 would prohibit, with limited exceptions, all persons from entering or remaining in an area within 25 feet of any entrance, exit, or driveway of an abortion facility, even if the area includes a "public right-of-way". None of the exempted conduct would permit an individual to use the area in question for expressive purposes. Thus the bill imposes a total ban on expressive conduct applicable even to traditional public forums for free expression, such as sidewalks and streets.

The bill itself acknowledges that the prohibition will affect "the First Amendment rights of persons to express their views near" the facilities in question. The bill is content-neutral on its face, thus the constitutional question is whether the time, place, and manner restrictions on First Amendment rights are reasonable.

The general constitutional test for evaluating facially neutral legislation, as opposed to a court injunction, that interferes with free speech is found in Ward v. Rock Against Racism, 491 U.S. 781 (1989). Such interference must be "narrowly tailored to serve a significant government interest." Id. at 796. Supporters of the bill may argue that the "somewhat more stringent" test applied to court injunctions (see Madsen v. Women’s Health Center, Inc. 512 U.S. 753, 763 (1994)) does not apply to this bill. However, when the legislation imposes a total ban on a particular form or forms of expression, as Senate Bill 148 clearly does, the state must show that "each activity within the proscription’s scope is an appropriately targeted evil". Ward, 491 U.S. at 799. This standard is as stringent as any found in the injunction cases. See Madsen, 512 U.S. at 764 (an injunction must "burden no more speech than is necessary to serve a significant government interest").

In Madsen, the U.S. Supreme Court upheld the part of an injunction that forbade any of the named plaintiffs from entering a 36-foot zone near the entrances of an abortion facility, thus practically eliminating the plaintiffs’ ability to exercise their First Amendment rights within those portions of the zone. According to the Court, "The need for a complete buffer zone near the clinic entrances and driveway may be debatable, but some deference must be given to the state court’s familiarity with the facts and the background of the dispute between the parties even under our heightened review." Only in light of sustained judicial findings as to the real necessity of such a zone to keep identified persons from interfering with access did the zone in Madsen survive constitutional scrutiny.

Senate Bill 148 applies to all persons, however, and not just to those identified by some court within the context of an injunction hearing. It effectively bans all opportunities to engage in expressive conduct within the zone, no matter how peaceful and inoffensive the conduct may be. It does not limit itself to any one expressive form, such as picketing, conversation, or leafleting, but prohibits every form. Moreover, the proposed legislative findings of fact do not identify or substantiate any continuing conduct that implicates the stated purposes for the bill in the first place.

In these and other respects, Senate Bill 148 mirrors, and is indeed broader in scope than, the statute struck down in U.S. v. Grace, 461 U.S. 171 (1983). The Court found that by banning all communicative displays, such as flags or banners, on areas surrounding the Supreme Court building including the sidewalks, the statute overreached its stated purposes of protecting property and persons. The statute offended the First Amendment by prohibiting activities that in no way "obstructed the sidewalks or access to the building, threatened injury to any person or property, or in any way interfered with the orderly administration of the building or other parts of the grounds." Id. at 182. In effect, the ban "result[ed] in the destruction of [the] public forum status [of the sidewalks] that is at least presumptively impermissible." Id. at 180.

Senate Bill 148 destroys the public character of any sidewalk within the 25-foot zone it creates. It prohibits individuals from using the affected portion of the sidewalks for any activity protected by the First Amendment. It fails to substantiate any evident connection between the stated purposes of preserving the peace and squelching even peaceful expression. It targets conduct that cannot be shown to be an "appropriately targeted evil". These defects raise serious doubts as to its constitutionality.

Statement of Bishop Daniel P. Reilly On Senate Bill 148 Prohibiting Peaceful Assembly Near Abortion Facilities in Massachusetts

Senate Bill 148 proposes to convert the sidewalks and other public areas surrounding abortion facilities in Massachusetts into an exclusion zone designed to keep persons from exercising their First Amendment rights to assemble, speak, or pray. I myself have stood on the public sidewalk in front of an abortion facility in Worcester to pray for an end to abortion and for the lives of those harmed by abortion, especially the unborn children and their mothers. If this legislation passes, then such positive and peaceful conduct would be deemed criminal.

For what purpose does the bill threaten fines of up to $1000 and 6 months in jail for first time offenders who stand within 25 feet of an abortion facility? To prevent terror and intimidation? Massachusetts law already penalizes such wrongful activities. To protect health care personnel from being injured? Even the bill’s supporters admit the bill would not have applied to John Salvi, whose shameful clinic shootings in 1994 were done inside on private property. No, the bill seeks to squelch all forms of lawful demonstration and interaction on public property, no matter how peacefully conducted. This punitive interference with constitutional guarantees is insupportable.

I urge the state legislators to consider the constitutional ramifications of this bill, and to reject this attempt to criminalize free speech. Those who themselves reject violence as an answer to the violence of abortion, and who stand peacefully to pray and persuade others to choose life, should not suffer the penalties this bill proposes or be forced to give up their constitutional rights.

Senate . . . . . . . . . . No. 148

AN ACT RELATIVE TO HEALTH CARE FACILITIES.

 Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

1 SECTION 1. It is hereby found and declared that existing law

2 does not adequately protect the public safety in the areas in and

3 around reproductive health care facilities. Indeed, such facilities

4 in the Commonwealth of Massachusetts have been the focal point

5 of many blockades, disturbances and even violence, particularly

6 the shootings at two reproductive health services facilities on

7 December 30, 1994, which, left two persons dead and many

8 injured.

9 It is further found that persons attempting to enter or depart

10 from reproductive health care facilities have been subject to

11 harassing or intimidating activity by persons approaching within

12 extremely close proximity and shouting or waving objects at

13 them, which has tended to hamper or impede access to or depar-

14 ture from those facilities.

15 It is further found that such activity near reproductive health

16 care facilities creates a "captive audience" situation because per-

17 sons seeking health care services cannot avoid the area outside of

18 reproductive health care facilities if they are to receive the serv-

19 ices provided therein, and their physical and emotional ailments

20 or conditions can make them especially vulnerable to the adverse

21 physiological and emotional effects of such harassing or intimi-

22 dating activities directed at them from extremely close proximity.

23 It is further found that the violence and disturbances described

24 above have required the deployment of police officers at signifi-

2 SENATE No. 148 [January

25 cant cost to the cities and towns of the Commonwealth, and con-

26 tinue to occur despite civil injunctions that prohibit certain per-

27 sons from engaging in such conduct.

28 And it is further found that studies have shown that clinics with

29 buffer zones experience far larger decreases in every type of vio-

30 lence than clinics without buffer zones.

31 Therefore, the purpose of this legislation is:

32 (1) to increase the public safety in and around reproductive

33 healthcare facilities;

34 (2) to maintain the flow of traffic and prevent congestion

35 around reproductive health care facilities;

36 (3) to enact reasonable time, place and manner restrictions to

37 reconcile and protect both the First Amendment rights of persons

38 to express their views near reproductive health care facilities and

39 the rights of persons seeking access to those facilities to be free

40 from hindrance, harassment, intimidation and harm; and

41 (4) to create an environment in and around reproductive health

42 care facilities which is conducive towards the provision of safe

43 and effective medical services, including surgical procedures, to

44 its patients.

1 SECTION 2. Chapter 266 of the General Laws is hereby

2 amended by inserting after section 120E the following section:—

3 (a) For the purposes of this section, "reproductive health care

4 facility" shall mean a place, other than within a hospital, where

5 abortions are offered or performed.

6 (b)( 1) Except for those listed in subsection (2) below, no person

7 shall, during business hours of a reproductive health care facility,

8 knowingly enter or remain in the following area of private prop-

9 erty of a reproductive health care facility or public right-of-way:

10 (A) the area within twenty-five (25) feet of any portion of an

11 entrance to, exit from, or driveway of a reproductive health care

12 facility; and

13 (B) the area within the rectangle created by extending the out-

14 side boundaries of any entrance to, exit from, or driveway of, a

15 reproductive health care facility in straight lines to the point

16 where such lines intersect the sideline of the street in front of such

17 entrance, exit or driveway.

18 (2) The provision of subsection (1) of this paragraph shall not

19 apply to the following:

1999] SENATE — No. 148 3

 20 (A) persons entering or leaving such facility;

21 (B) employees or agents of such facility acting within the scope

22 of their employment;

23 (C) law enforcement, ambulance, firefighting, construction,

24 utilities, public works and other municipal agents acting within

25 the scope of their employment; and

26 (D) persons using the public sidewalk or street right-of-way

27 adjacent to such facility solely for the purpose of reaching a desti-

28 nation other than such facility.

29 (c) Whoever knowingly violates this section shall be punished,

30 for the first offense, by a fine of not more than one thousand dol-

31 lars or not more than six months in a jail or house of correction or

32 both, and for each subsequent offense by a fine of not less than

33 five hundred dollars and not more than five thousand dollars or

34 not more than two and one-half years in a jail or house of correc-

35 tion or both.

36 A person who knowingly violates this section may be arrested

37 without a warrant by a sheriff, deputy sheriff, or police officer.

38 (d) Any reproductive health care facility or any person whose

39 rights to provide or obtain reproductive health care services have

40 been interfered with by a violation of this section may commence

41 a civil action for damages or injunctive and other equitable relief,

42 including the award of compensatory and exemplary damages.

43 Said civil action shall be instituted either in the superior court for

44 the county in which the conduct complained of occurred, or in the

45 superior court for the county in which any person or entity corn-

46 plained of resides or has a principal place of business. An

47 aggrieved person or entity which prevails in an action authorized

48 by this paragraph, in addition to other damages, shall be entitled

49 to an award of the costs of the litigation and reasonable attorney’s

50 fees in an amount to be fixed by the court.

51 (e) A criminal conviction pursuant to the provision of this

52 section shall not be a condition precedent to maintaining a civil

53 action pursuant to the provision of this section.

1 SECTION 3. The provisions of this act shall be deemed sever-

2 able, and if any provision of this act is adjudged unconstitutional

3 or invalid, such judgment shall not affect other valid provisions

4 hereof.