McGuire v. Reilly

• Citation: 260 F.3d 36
• Decision Date: 07 March 2001
• Docket Number: No. 00-2492,00-2492
• Parties: (1st Cir. 2001) MARY ANNE MCGUIRE ET AL., Plaintiffs, Appellees, v. THOMAS F. REILLY, ETC., ET AL., Defendants, Appellants. Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 36

260 F.3d 36 (1st Cir. 2001)

MARY ANNE MCGUIRE ET AL., Plaintiffs, Appellees, v. THOMAS F. REILLY, ETC., ET AL., Defendants, Appellants.

No. 00-2492

United States Court of Appeals For the First Circuit

Heard March 7, 2001

Decided August 13, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, U.S. District Judge]

[Copyrighted Material Omitted] Patricia Correa, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General of Massachusetts, Adam Simms and Elizabeth Frumkin, Assistant Attorneys General, were on brief, for appellants.

Jennifer C. Jaff, Killian, Donohue & Shipman, LLC, and Lucinda M. Finley on consolidated brief for Conn. Women's Education and Legal Fund, National Abortion Federation, NOW Legal Defense and Education Fund, Feminist Majority Foundation, Voters for Choice, American Jewish Congress, Conn. NARAL, Conn. Chapter of NOW, National Center for the Pro-Choice Majority, and Women's Law Project, amici curiae.

Carter G. Phillips, Paul E. Kalb, Jennifer M. Rubin, and Sidley & Austin on brief for American College of Obstetricians and Gynecologists, Mass. Medical Society, and American Medical Ass'n, amici curiae.

Cynthia Stone Creem and Sean J. Kealy on brief for Senator Cynthia Stone Creem, Co-Chair, Joint Comm. on Criminal Justice (Mass. Senate), amicus curiae.

Richard Blumenthal, Attorney General of Connecticut, Eliot D. Prescott and Jane R. Rosenberg, Assistant Attorneys General, on brief for States of Connecticut, Colorado, Maryland, Nevada, and New York, amici curiae.

Paul E. Nemser, U. Gwyn Williams, Ketanji Brown Jackson, and Goodwin Procter LLP on brief for Women's Bar Ass'n of Mass., Abortion Access Project of Mass., AIDS Project of Worcester, Alternative Medical Care of Mass., American Ass'n of Univ. Women-Mass., Big Sister Ass'n of Greater Boston, Boston Women's Health Book Collective, Everywoman's Center, Four Women, Inc., League of Women Voters of Mass., Mass. NARAL, Mass. Chapter of NOW, Mass. Public Health Ass'n, National Council of Jewish Women-Mass., Religious Coalition for Reproductive Choice, Tapestry Health Systems, Union of American Hebrew Congregations-Northeast Council, Womancare/Repro Associates, and YWCA of Cambridge, amici curiae.

Mark L. Rienzi, with whom Thomas M. Harvey and Dwight G. Duncan were on brief, for appellees.

Maryclare Flynn on brief for Mass. Citizens for Life, Inc., amicus curiae.

Vincent P. McCarthy, American Center for Law and Justice Northeast, Inc., on brief for Family Research Council and Focus on the Family, amici curiae.

Before Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Lynch, Circuit Judge.

SELYA, Circuit Judge.

This appeal -- in which we have the benefit of exemplary briefing by the parties and the various amici -- requires us to reconcile a triad of state interests (protecting public health, maintaining public safety, and preserving access to medical facilities) with the First Amendment interests of those who challenge restrictions on how they may debate issues of public concern. We act in the context of a Massachusetts statute, Mass. Gen. Laws ch. 266, § 120E1/2 (the Act), which creates a floating six-foot buffer zone around pedestrians and motor vehicles as they approach reproductive health care facilities (RHCFs). We view that statute through the prism of Hill v. Colorado, 530 U.S. 703 (2000), in which the United States Supreme Court upheld an analogous statute despite the fact that it incidentally restricted some speech.

The district court found meaningful distinctions between the Act and the Colorado statute at issue in Hill, determined that these distinctions undermined the constitutionality of the Act, and preliminarily enjoined the Act's enforcement. See McGuire v. Reilly, 122 F. Supp. 2d 97, 101-03 (D. Mass. 2000). But the distinctions noted by the district court do not make a dispositive difference. Hill controls, and the Act, on its face, lawfully regulates the time, place, and manner of speech without discriminating based on content or viewpoint. Accordingly, we reverse the district court's ukase.

I. BACKGROUND

In order to frame the issues on appeal, we think it is useful to trace the developments leading to the Act's passage, survey its text, and place it in the context suggested by the Hill Court's decision. With that foundation in place, we then recount the proceedings below.

A. The Act's History.

By the late 1990s, Massachusetts had experienced repeated incidents of violence and aggressive behavior outside RHCFs. Concerned legislators responded to these disturbances by introducing Senate Bill No. 148, see S.B. 148, 181st Gen. Ct., Reg. Sess. (Mass. Jan. 6, 1999), reprinted in Appendix B hereto. The bill purposed to create a fixed twenty-five foot buffer zone from RHCFs' entrances, exits, and driveways, and with limited exceptions, to prohibit all persons from entering, or remaining within, that buffer zone regardless of the person's intent or the willingness of others to listen. The state senate held a hearing in April of 1999. The received testimony chronicled the harassment and intimidation that typically occurred outside RHCFs. In addition, numerous witnesses addressed the emotional and physical vulnerability of women seeking to avail themselves of abortion services, and gave accounts of the deleterious effects of overly aggressive demonstrations on patients and providers alike. Based in part on this testimony, the senate concluded that existing laws did not adequately protect public safety in areas surrounding RHCFs. To remedy this situation, the senate favored the creation of fixed buffer zones. The sponsors of the bill left no doubt that they intended the proposed law to "increase public safety in and around [RHCFs]" while "maintain[ing] the flow of traffic and prevent[ing] congestion" there. S.B. 148, supra, § 1. In the bargain, the sponsors expected the law to provide "reasonable time, place and manner restrictions to reconcile and protect both the First Amendment rights of persons to express their views near reproductive health care facilities and the rights of persons seeking access to those facilities to be free from hindrance, harassment, intimidation and harm." It thereby would "create an environment in and around reproductive health care facilities which is conducive towards the provision of safe and effective medical services . . . to its patients." Id.

Skeptics worried that the proposed law might offend the Constitution. To stave off these gloom-and-doom predictions, the senate, on November 3, 1999, asked the Massachusetts Supreme Judicial Court (SJC) for an advisory opinion on the bill's constitutionality. On January 24, 2000, the SJC concluded that the Constitution presented no obstacle to enactment. Opinion of the Justices to the Senate, 430 Mass. 1205, 1211-12 (2000). The SJC advised that the bill, as framed, was unrelated to the content of protected expression. Id. at 1209. Moreover, the restrictions imposed had a rational basis in view of the heightened governmental interest that arises when "advocates of both sides of one of the nation's most divisive issues frequently meet within close proximity of each other in the areas immediately surrounding the State's clinics, in what can and often do become congested areas charged with anger." Id. at 1210.

After receiving this favorable review, the senate engrossed Senate Bill No. 148 on February 29, 2000. That version of the law never came to a vote in the house of representatives, mainly because the United States Supreme Court decided Hill on June 28, 2000. In that opinion, the Court upheld, as a content-neutral time, place, and manner restriction, a Colorado statute designed to ameliorate the same evils. 530 U.S. at 719-21. The Court's conclusion rested on three pillars:

First, [the statute] is not a regulation of speech. Rather, it is a regulation of the places where some speech may occur. Second, it was not adopted because of disagreement with the message it conveys. . . . Third, the State's interests in protecting access and privacy, and providing the police with clear guidelines, are unrelated to the content of the demonstrators' speech.

Id. at 719-20 (internal quotation marks omitted).

Massachusetts decided to follow the trail that Colorado had blazed. Consequently, the house of representatives struck the text of Senate Bill No. 148 and reformulated its language. The amended version -- ultimately enacted and codified as section 120E1/2 -- recast the proposed statute and, most notably, replaced the fixed buffer zones originally envisioned by the state senate with floating buffer zones of the type upheld in Hill. The house engrossed the bill on July 28, 2000, and the senate concurred the next day. On August 10, 2000, Governor Cellucci signed the Act into law.

B. The Act's Text.

The Act, formally known as the Massachusetts Reproductive Health Care Facilities Act, is reprinted in Appendix A hereto. The Act makes it unlawful, absent consent, "knowingly to approach [within six feet of a person or occupied motor vehicle] for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education or counseling with such other person in the public way or sidewalk area within a radius of 18 feet from any entrance door or driveway to a reproductive health care facility." Mass. Gen. Laws ch. 266, § 120E1/2(b).

The statutory prohibition is not absolute. In the first place, the architecture of this floating buffer zone precludes speakers from approaching unconsenting listeners, but it neither prevents speakers from holding their ground nor requires them to retreat from passers by. In the second place, the Act's prophylaxis does not attach unless and until an RHCF opens for business and clearly demarcates the protected eighteen-foot zone. Id. § 120E1/2 (c). Finally, the Act exempts persons entering or leaving an...