Abortion, Free Speech, John Roberts, Politics, SCOTUS, Supreme Court

Why Conservatives Should Be Disappointed In A 9-0 Ruling In Favor of Abortion Opponents

The Supreme Court ruled today in McCullen v. Coakley that a Massachusetts law creating a buffer zone around abortion clinics violates the First Amendment. The law criminalized standing on a public sidewalk within 35 feet of an abortion facility, with narrow exceptions for employee and law enforcement access. Eleanor McCullen, the lead plaintiff, is a grandmother in her late seventies who stood on sidewalks near clinics in order to initiate quiet, one-on-one conversations with women seeking abortions. The Court held today that the buffer zones created by the law burden substantially more speech than necessary to achieve the Commonwealth’s interests.

The Court was unanimous in its judgment that the law violates the First Amendment rights of anti-abortion speakers such as Eleanor McCullen. So, why is McCullen so disappointing to conservatives?

McCullen is disappointing for two reasons. First, the grounds on which the majority strikes down the law will likely open up a slew of bolder restrictions on the speech rights of abortion opponents in the future. Second, the Chief Justice authored the opinion placing the First Amendment rights of folks like McCullen on such wobbly ground, when a stronger defense could have carried the day with his vote.

Today in McCullen, Chief Justice John Roberts did more damage to the First Amendment rights of opponents than he needed to. The question of whether abortion clinic zones of exclusion like the one in this case warrant strict scrutiny — as I believe they do — could have been left for another day. The outcome of Eleanor McCullen’s case would have remained the same. Our First Amendment jurisprudence would have been left undisturbed. Instead of ruling narrowly, the Court today went out of its way to make defending free-speech rights that much more difficult for opponents of abortion.

Chief Justice Roberts wrote the majority opinion, joined in full by Justices Ginsburg, Breyer, Sotomayor, and Kagan. They considered whether the buffer zone law was content neutral, and held that it was. Finding that the law is content neutral, the Court applied a lower level of scrutiny. Generally, content-neutral time, place, and manner restrictions on speech violate the First Amendment only if they are not narrowly tailored to serve significant state interests and there are no alternative channels of expression. It’s an easier standard for the state to meet than strict scrutiny. But when the Court considered whether the buffer zone law was narrowly tailored to serve the significant state interests at stake, and they found that the law was not. Since Massachusetts could have employed other ways of achieving its legitimate goals that would not have so burdened speech, the Court found that the law violates the First Amendment.

How does this hurt abortion opponents and their First Amendment rights? If the Court could find the law unconstitutional because it failed to satisfy even low-level scrutiny, then the Court did not have to go further.

The Chief Justice’s opinion did go further, however. It went further by expressly finding that the Massachusetts restriction was not based on content and therefore not subject to the greater demands of strict scrutiny analysis. This is like you asking me if I know what time it is and me telling you: Not only will I not tell you what time it is, but I also will not go out for drinks with you, and I also will not go home with you afterward. (Well, it’s like that, except with a binding effect on future people who might ask me for the time.)

Now under McCullen, states can limit anti-abortion speech by tweaking only the tailoring of the law. With nips and tucks here and there, government bans on the speech rights of peaceful opponents of abortion will survive constitutional challenge.

The second troubling aspect of McCullen today is this: the Chief Justice authored this opinion, instead of joining the other conservative justices, ruling more narrowly, and avoiding the unnecessary damage I describe above.

Justice Scalia, joined by Justices Kennedy and Thomas, concurred in judgment. Justice Alito filed a separate concurrence in judgment. They agreed that the law violates the First Amendment but disagreed that the Court should have said more than what was needed to decide this case. Justice Scalia calls the Court’s content-neutrality discussion “seven pages of the purest dicta,” making clear that it was wholly unnecessary for the Court to consider this issue if the case could be decided even on low-level scrutiny.

So, why did the Chief Justice write an opinion joined by all and only the liberal members of the Court? Had the Chief Justice been willing to join the conservative justices in finding the law was viewpoint-discriminatory or not content neutral, the conservative justices could have had enough votes for their preferred rationale in this case.

There’s a hypothesis that John Roberts fancies himself a peace maker and consensus builder as Chief. Commentators have argued in some past instances of Roberts swing-voting over to the liberal side that he did so in order to provide the American people a picture of unity on the Court. He meant to overcome the Court’s reputation for political, divisive 5-4 splits. After all, the Chief expressly aimed to limit the number of 5-4 decisions in during his tenure as Chief. As he told Jeffrey Rosen, “I do think the rule of law is threatened by a steady term after term after term focus on 5-4 decisions. I think the Court is ripe for a similar refocus on functioning as an institution, because if it doesn’t, it’s going to lose its credibility and legitimacy as an institution.” He advocated ruling narrowly on constitutional grounds, avoiding confrontation that would carry the stench of ideology to court-watchers and the public.

That can’t be exactly right here. Had he joined with Scalia and the other conservatives, the judgment of the Court striking down the law would have still presumably have been 9-0. Presumably, one or more liberal justices would write to advocate a view similar to the one expressed in today’s actual majority opinion. But the force of precedent would be behind the holding that strict scrutiny applies to anti-abortion speech cases such as this one. Whatever picture of consensus gets conveyed to the public through a unanimous judgment but a fracture of rationales, it would have been the same whichever rationale the Chief adopted.

Did John Roberts rule as he did in this case because he believes his analysis or for strategic reasons? It’s unclear what his strategy was. If sincere belief alone motivated him, Chief Justice Roberts has produced another opinion that should make conservative court watchers wary.

When the Court heard oral arguments for McCullen back in January, I wrote about why the law ought to be struck down. I wrote about how zones of exclusion actually may magnify the sort of speech that we usually want to minimize: disruptive, noisy protests. Under a buffer zone law like the one in McCullen, an opponent of abortion must choose between screaming from a 35+-foot distance or simply not speaking at all. The Court’s decision today recognizes that the Massachusetts law should not stand. While this aspect of the decision should be celebrated, the path taken to get to the outcome should not.


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at tabo.atl@gmail.com

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