FILE – This Dec. 17, 2013 file photo shows anti-abortion protester Eleanor McCullen, of Boston, left, standing at the painted edge of a buffer zone as she protests outside a Planned Parenthood location in Boston. (AP Photo/Steven Senne, File)
BOSTON — The Massachusetts House approved a bill yesterday designed to tighten security around abortion clinics.
The bill would let police disperse one or more individuals who are substantially impeding access to a clinic. After a dispersal order is issued in writing, those individuals would have to stay at least 25 feet from the clinic’s entrances for up to eight hours.
The 25-foot boundary would have to be clearly marked and the regulations posted in public.
The bill also prohibits anyone from intentionally injuring or intimidating an individual trying to enter or leave a facility using force or the threat of force.
JOHN VELIS
The legislation is a response to the recent unanimous Supreme Court ruling on McCullen v. Coakley, which struck down a 2007 Massachusetts law that established protest-free 35-foot “buffer zones” around the entrances of abortion clinics.
The House approved the bill on a 116-35 vote. The Senate approved it last week on a voice vote, meaning no individual votes were recorded.
Abortion opponents have said they would head back to court if the bill is approved.
Rep. James Lyons (R-North Andover) argued against the bill yesterday, saying lawmakers should take more time to craft legislation that would withstand future court challenges. He said the current bill is simply a reworked version of the 2007 law tossed out by the high court.
“The bill … is on the face of it unconstitutional,” he said.
Rep. Marc Lombardo (R-Billerica) called the legislation “a retaliatory bill” aimed at reining in anti-abortion protesters near the clinics.
“The reality of this bill is that we’re trying to target a specific group,” he said.
Rep. Christopher Markey (D-Dartmouth) said the bill is fair to protesters, clinic workers and patients trying to enter or leave the facility because it focuses on public safety issues and not the First Amendment right to free speech.
“What we’ve done with this bill is to try to address the conduct of individuals, not the content of their speech,” he said.
Rep. Ann-Margaret Ferrante (D-Gloucester) also argued the bill is about public safety and not speech, alluding to the shooting deaths of two employees in Boston-area abortion clinics in 1994.
“There is a long, tragic history on this regard,” she said. “At some point in time there has to be a line drawn.”
The bill would also let anyone who believes they are a victim of aggressive protesters to file a civil action in Superior Court seeking injunctive relief, damages, and attorneys’ fees. Any violation of an injunction would constitute a criminal offense.
Supporters say that portion of the bill largely mirror civil remedies allowed under the federal Freedom of Access to Clinic Entrances Act.
The legislation would also amend the state’s existing civil rights act to allow the attorney general to seek damages on behalf of affected individuals who have been blocked from clinics. The attorney general would also be able to recover litigation costs and seek civil penalties for the interference of constitutional rights.
The bill requires a final vote in both chambers before heading to Gov. Deval Patrick for his signature.
House Speaker Robert DeLeo (D-Winthrop) praised the efforts of the House in a statement, and said the bill will enhance safety at these facilities.
“Through a focus on conduct, this legislation will enhance public safety and protect access to care,” DeLeo said. “My priority is protecting individuals using these health care facilities and I thank my colleagues in the Legislature, Senate President Murray and Attorney General Coakley for their vigilance in this regard.”
Westfield Representative John Velis said today that there have been many misconceptions about the bill.
“If you pick up McCullen v. Coakley and the 9-0 unanimous opinion, they struck it down for one reason only – first amendment grounds, because it was way too broad,” said Velis. “You push people back 35 feet, you’re going to be crossing into free speech zones, and you just can’t do that. This was about balancing the free speech rights of those who want to protest, and the public safety of those trying to gain access to these buildings.”
Regarding detractors of the legislation, who say there are already numerous laws on the books dealing with blockading and assault, Velis said, while he is sympathetic to that position, the dispersal order is the key point of the law.
“You can do anything you want to try to prevent and dissuade someone from getting an abortion,” he said. “The reason you need this type of legislation is because the laws on assault and battery, on false imprisonment, none of those prevent that 25-foot radius. All this law says is that law enforcement can push them back beyond this 25-foot radius.”
“During debate, people who were opposed to this said that 25-foot radius is de facto buffer zone that violates the first amendment and the answer is, no it’s not,” Velis said, adding that the first amendment ‘is not an absolute right.’ “The only way that comes into play is if you substantially interfere with someone, i.e. assault and battery. The U.S. Supreme Court has always placed time, place and manner restrictions on the first amendment.”
Velis, a practicing attorney in Westfield, used a classic example to summarize his take.
“You can’t go into a crowded movie theatre and yell ‘fire.’ There are things you can do to lose your first amendment rights,” he said. “If I want to get 30 of my buddies and go to a public sidewalk at 11 a.m. and protest the gun bill, I can do that, because of the First Amendment. But if I get the same group of buddies and we do that at 3 a.m., we get arrested because it’s a time, place, and manner restriction.”
“The 25-foot radius only comes up when people have done something to essentially forgo their First Amendment rights,” Velis said. “I think that this bill will withstand constitutional scrutiny. It’s not a buffer zone we’ve created.”
