Attorney General Martha Coakley Opposes Challenge To Buffer Zone Law

Main Category: Abortion
Also Included In: Litigation / Medical Malpractice
Article Date: 21 Feb 2008 - 2:00 PDT

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Attorney General Martha Coakley's Office filed a brief in the U.S. District Court for the District of Massachusetts opposing a recent challenge to the Commonwealth's new buffer zone law. The new law creates a fixed, 35-foot buffer zone in public ways and sidewalks around entrances and driveways to reproductive healthcare facilities. Last month, five opponents of the new statute filed a federal lawsuit challenging the constitutionality of the new law, and a motion seeking a preliminary injunction, claiming that the statute violates their constitutional right to free speech and to engage in expressive activities and behavior in public forums.

"Massachusetts' buffer zone statute is an important change to the law and enhances public safety and access to medical facilities, while preserving the right to engage in expressive activity on public ways and sidewalks near clinics," said Attorney General Coakley. "In recent years, reproductive healthcare facilities have been the scene of mass demonstrations, congestion, blockades, disturbances, and even murders. The previous buffer zone statute was a step in the right direction, but was difficult, if not impossible, to enforce."

In the opposition brief filed today, the Attorney General's Office contends that the law is constitutional because it does not discriminate based on the content of a person's speech. The Attorney General's Office also asserts that the law is specifically designed to protect public safety and patient access to medical care, and leaves open the opportunity to engage in expressive activities.

The new law, which was signed by Governor Deval Patrick and took effect on November 13, 2007, prohibits any person from knowingly entering or remaining within the fixed buffer zone, except for:

- Persons entering or leaving the clinic;
- Employees or agents of the clinic acting within the scope of their employment (which does not include engaging in partisan speech);
- Municipal employees or agents acting within the scope of their employment; and
- Persons crossing through the buffer zone solely for the purpose of reaching a destination other than the clinic.

The fixed buffer zone takes effect only during the clinic's business hours and only if the buffer zone is clearly marked and posted.

The original version of the law created what is known as a "floating" buffer zone. The law prohibited any person within 18 feet of the entrance or driveway to a reproductive healthcare facility from knowingly approaching another person or vehicle within six feet, for the purpose of passing a leaflet or handbill, displaying a sign, or engaging in oral protest, education or counseling, without that person's consent. It also prohibited persons from knowingly approaching other persons for these purposes within a six-foot wide corridor from the facility entrance door or driveway to the street. The First Circuit found the original version of the law to be constitutional.

The Attorney General's Office expects that the court will schedule a hearing on the Motion for a Preliminary Injunction in the near future.

This matter is being handled by Attorney General Coakley's Administrative Law Division and Civil Rights Division.

http://www.mass.gov/ago