Opposition Brief — McGuire v. Reilly

Supreme Court. U.S

FILED

IN THE

Supreme Court of the United States

OCTOBER TERM, 2004

MARY ANN MCGUIRE, RUTH SCHIAVONE,

AND JEAN B. ZARRELLA,

Petitioners,

‘

THOMAS F. REILLY, ATTORNEY GENERAL OF THE

COMMONWEALTH OF MASSACHUSETTS, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

THOMAS F. REILLY

Attorney General

of Massachusetts

WILLIAM W. PORTER*

Assistant Attorney General

1 Ashburton Place, Room 2019

Boston, Massachusetts 02108

(617) 727-2200, ext.2976

* Counsel of Record

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QUESTIONS PRESENTED

A Massachusetts law, which is largely modeled on the

statute upheld in Hill v. Colorado, 530 U.S. 703 (2000), creates

a six-foot “buffer zone” around persons who are within 18 feet

of the entrance to a reproductive health care facility, within

which six-foot zone others may not (without consent) enter “‘to

engage in oral protest, education or counseling.”

The questions presented are:

1. Whether, under the First Amendment, the law

discriminates on the basis of content because it applies only

near the entrances to facilities that perform abortions.

‘ae Whether the law, because it exempts clinic

employees from the “approach” restriction when they assist

patients to safely reach the clinic entrance, impermissibly

discriminates against petitioners’ speech on the basis of

viewpoint.

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Table of Contents

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QUESTIONS PRESENTED ......................... i

STATEMENT OF THE CASE ...................... l

Massachusetts Buffer Zone Act ................ l

Petitioners’ Protest and Sidewalk Counseling

oe ope bed EO ie eae 3

Police Enforcement of the Act................. 5

Implementation of the Clinic Employee

NE ss re Se SG i oe ne unin 5

Lower Court Proceedings ...... reg 7

REASONS FOR DENYING THE WRIT ............. 13

I. The Petition Fails to Show a

Conflict in the Courts Below or

‘Present an Issue of National

Importance that Merits Review

on 13

Il. Petitioners’ Challenge to the

Clinic Employee Exemption is

Premised Upon a Construction

of this Provision that the State

Courts Have Not Considered. .......... 15

il

Il. The Court of Appeals Correctly

Applied this Court’s Precedents

in Holding that the Act is Both

Content Neutral and Viewpoint

ear ree rere ry ere 17

A. That the Act applies only at

places that offer or perform

abortions does not make it a

subject matter restriction on

a ee Oe ea 17

B. The clinic employee exemption

does not discriminate on the basis

of viewpoint because, properly

construed. it permits only

“approaches” intended to

facilitate patient safety. ......... 20

EES ko asd gs sl Pree eee ee a eee Kame fe

ill

Table of Authorities

— Cases

Arizonans for Official English v. Arizona,

2M NL. SS GGIOT) 6 ekki wees

City of Ladue v. Gilleo,

S82 US. 42 (19O) oceans

Clark v. Cmty. for Creative Non-Violence,

468 U.S. 286 (1984). 2.5. ce cans

Frisby v. Schultz,

487 US. 474(1988)....... 2.22.05...

Harrison v. NAACP,

360 US. 16719999) ........ 2...

Hill v. Colorado, —

SUS. POS CI) oo et Sac

Hoffman Estates v. The Flipside,

Hoffman Estates, Inc.,

BOS SD. SEP ERD ook oe bce vdeaes

Madsen v. Women’s Health Center, Inc.,

S25 U.S. TAS CU kok vas

Opinion of the Justices to the Senate,

430 Mass. 1205,

Tad ORO LOUD ok ke asec

. Paulussen v. Herion,

S305. CIO

IV

Rosenberger v. Rector and Visitors of

Univ. of Va.,

415 US. SID CUSG) s ka.dkcdssasuseuaseeeeerwe 21

Schenck v. Pro-Choice Network of Western N.Y.,

SiS U.S. 257 CIS al asses anndbeceue see 14

Thomas v. Chicago Park Dist.,

334 US. SIGGGOEE sé ccc ii secaenenneeee 1]

Ward v. Rock Against Racism,

491 US. FER CTR eee ov 6.kkcecinsesennteee 8,11, 19

Statutes

Ress. G.L. C. SOG, 5 LAGS <0ccuuhsteestesenseee eee l

Mess. G.L. ¢. 266, 3 RAGMMED 8c dccsnccecceesvacaye ee

Mans. €3.L...¢. 260, 3 TAUPE (Se skeccncduaseuns 5,9

Mass. St. SOUR Gi Abi os 64050005008 sen euenes weteees l

Mass. St. 2000, G. 287, OE .cccancaceessecaciseuee 2

Ca ea

l

STATEMENT OF THE CASE

Massachusetts Buffer Zone Act

In 2000, the Massachusetts Legislature enacted “An Act

Relative to Reproductive Health Care Facilities,” Mass. St.

2000, c. 217, now codified at Mass. Gen. Laws c. 266, § 120E”%

(hereafter “the Act”). Pet. 2-4. The Act was passed following

a long history of intense and confrontational protests at

reproductive health care facilities in Massachusetts over the

bitterly divisive issue of abortion. Appendix to the Petition for

a Wnit of Certiorari (hereafter “App.) 95a-96a. (legislative

findings).

The Act creates, in effect, a “floating” six-foot buffer

zone around persons and vehicles as they approach reproductive

health care facilities (“RHCFs”). App. 71a.' The Act makes it

unlawful, within these areas, for any person to “knowingly

approach” within six feet of another person or occupied motor

vehicle, without the consent of the person or the vehicle’s

occupant, “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.” Pet. 2. This restriction

applies only in the “area within a radius of 18 feet of any

entrance door or driveway to a reproductive health care

facility”and in the rectangular area “not greater that six feet in

width created by extending the outside boundaries of [such

entrance doors to the] street... .” Pet. 2-3.? Thus, although the

' The Act defines-“reproductive health care facilities” as

“place[s], other than within a hospital, where abortions are offered

or performed.” Pet. 2.

> In addition, the prohibition on approaching non-consenting

(continued...)

2

Act restricts “approaches” within the defined area, it does not

require a standing speaker within this area to move away from

anyone passing by. App. 75a. As the First Circuit summarized:

“[T]he Act . . . affects only areas immediately adjacent to

RHCFs; prohibits only nonconsensual approaches within six

feet; and applies only within a clearly marked eighteen-foot

radius from clinic entrances and exits.” App. 89a.

The Act exempts four categories of persons from the

restriction on nonconsensual approaches in § 120E'(b): (1)

“persons entering or leaving [a reproductive health care

facility],” (2) “employees or agents of such facility acting

within the scope of their employment,” (3) “law enforcement,

ambulance, firefighting, construction, utilities, public works and

other municipal agents acting within the scope of their

employment,” and (4) persons using the sidewalk “solely for

the purpose of reaching a destination other than such facility.”

Pet. 3.°

The Massachusetts Legislature expressly set forth its

purposes in the Act, the first of which was “to increase the

public safety in and around reproductive health care facilities.”

App. 96a. (Mass. St. 2000, c. 217, § 1) Second, the Legislature

aimed “to maintain the flow of traffic and prevent congestion

around reproductive health care facilities.” Jd. Third, the

?(...continued)

persons is in effect only during the business hours of the

reproductive health care facility and only if the restricted area has

been “clearly marked and posted.” Pet. 3.

> The Act also provides criminal penalties where a person

“knowingly obstructs, detains, hinders, impedes or blocks another

person’s entry to or exit from a reproductive health care facility[.]”

Pet. 4.

3

Legislature intended “to enact reasonable time, place and

manner restrictions to reconcile and protect both the First

Amendment nghts of persons to express their views, assemble

and pray near reproductive health care facilities and the rights

of persons seeking access to those facilities to be free from

hindrance, harassment, intimidation and harm.” Jd. F inally, the

Legislature aimed “to create an environment in and around

reproductive health care facilities which is conducive towards

the provision of safe and effective medical services, including

surgical procedures, to its patients.” App. 97a.

Petitioners’ Protest and Sidewalk Counseling Activities

The petitioners believe that abortion is murder and is

detrimental to the physical and emotional health of women.

C.A. App. 8. They regularly express their views through protest

and “sidewalk counseling” outside reproductive health care

facilities in Boston and Brookline. App. 4a. Their particular

sidewalk counseling includes passing out leaflets, engaging in

conversations, and offering assistance to women they believe

are entering the clinic for an abortion, all in an attempt to

dissuade them from doing so. App. 4a. Petitioners’ protest and

sidewalk counseling is limited to two locations: the Boston

clinic of Planned Parenthood League of Massachusetts

(“PPLM”) and Repro Associates, located in Brookline. App.

4a-8a.*

* Both PPLM and Repro Associates are places where abortions

are performed. Both also offer family planning services,

gynecological examinations, pregnancy testing and other

reproductive health care services. C.A. App. 70, 72. They are

therefore “reproductive health care facilities” as defined in the Act.

Pet. 2.

4

When they are involved in sidewalk counseling, the

petitioners try to approach women they believe are clinic

patients as far as possible from the clinic entrances, to

maximize their time to talk to those who continue toward the

clinic. App. 5a, 6a, 8a. As a result, petitioners generally

approach women well outside of the area restricted by the Act,

which is the last 18 feet before the clinic entrance, and try to

speak to them at a distance of less than 6 feet. Id.

On Saturday momings, PPLM uses patient escorts in

front of and near its Boston facility. Although these escorts

serve as volunteers, PPLM has established their duties and

responsibilities and provided them training. App. 4a.° At the

times and locations that petitioners McGuire and Zarrella

conduct their “sidewalk counseling,” there are no escorts

present. C.A. App. 719-720, 744. Although there are clinic

escorts present when petitioner Schiavone conducts her

sidewalk counseling at Planned Parenthood on Saturdays,

Schiavone has never complained io the police or other law

enforcement personnel about the conduct of the escorts. App.

31a, Sla.

None of the plaintiffs has been arrested for violating the

Act. App. 5a. Only one person (a “pro-life” protester ai PPLM

in Boston) has been arrested for violating the Act; the arrest

> On some days, certain individuals go to the area in front of

and near Repro Associates in Brookline to “escort” women who are

approaching that facility. They have no affiliation with Repro

Associates and receive m> compensation, training, support or

direction from Repro Associates. C.A. App. 73, 294, 296-302, 306-

307. For that reason, the Brookline Police take the position that

these individuals are not within the Act’s exemption for “employees

or agents of [an RHCF] acting within the scope of their

employment.” See App. 11a.

5

occurred after repeated warnings from the Boston Police over

a period of months. App. 10a.

Police Enforcement of the Act

The policy of both the Boston and Brookline police is

not to arrest anyone for violation of the Act without at least one

warning. According to the officer commanding the Boston

precinct in which PPLM is located, the Boston Police

enforcement policy on the buffer zone law is to be fair to both

sides of the abortion debate, to be flexible, and always to warn

a potential violator first and then to try to mediate before

making an arrest. Both pro-life protesters and clinic escorts

have received warnings from the Boston Police at the PPLM

clinic. App. 10a. The responsible Brookline Police official

testified that his Department’s policy on enforcerient of the Act

is to first warn the person engaging in potentially unlawful

conduct, and then videotape the activity. Only then, if the

conduct persists, would the Brookline Police take enforcement

action in the nature of an arrest. App. 1la. Persons expressing

both anti-abortion and pro-choice views have received warnings

from Brookline Police officers at Repro Associates. App. 11a.

Implementation of the Clinic Employee Exemption

As discussed above, the Act exempts several categories

of persons from its “approach” restrictions, including

“employees or agents of [reproductive health care facilities]

acting within the scope of their employment.” Mass. G.L. c.

266, § 120E'%2(b)(2).

Attorney General’s Interpretation. Since the Act took

effect, the Attorney General has interpreted § 120E’A(b)(2) to

exempt clinic escorts from the Act’s “approach” restrictions

only when they assist patients to safely reach the clinic, but not

6

if they engage in protest, education, or counseling. App. 9a. In

2000 and 2001, when the Act was first implemented,

representatives of the Attorney General conveyed this

interpretation to both Boston and Brookline police and clinic

officials, in person and in writing. App. 8a-9a, 67a n. 8. In

February 2003, the Attorney General’s office sent letters to

police officials and district attorneys in the four Massachusetts

municipalities with reproductive health care facilities affected

by the Act (i.e. Boston, Brookline, Worcester and Springfield)

again setting out this interpretation of the clinic employee

exemption. App. 8a,n. 1. See C.A. App. 702-704, 705, 708,

711, 714. The letters stated, in part, that “all persons in the

restricted area, including clinic employees and agents, are

subject to the restrictions in § 120E2(b) of the Act, including

the restriction on oral protest, education, or counseling[,]” and

that clinic escorts may not use the exemption to “express their

views about abortion [.]” The letters also stated that the clinic

employee exemption “permits clinic employees and agents to

speak as necessary to perform such duties as helping patients

gain safe access to a clinic, but not to use that opportunity to

express their views about abortion or otherwise to engage in

‘protest, education or counseling.”” See C.A. App. 702-704,

705, 708, 711, 714.

Police Department Interpretation. The Boston and

Brookline Police Departments have followed the Attorney

General’s interpretation of the clinic employee exemption.

App. 10a-l1la. For example, the Boston Police Department

views the Act as permitting clinic escorts to escort patients into

the clinic and to offer them assistance in that regard. App. 10a.

In that Department’s view, the Act prohibits escorts from

approaching patients within the restricted area (without consent)

to counsel, leaflet, or educate them. Jd.

5

PPLM Escort Protocol. In response to the Act, PPLM

revised its escort protocol. PPLM requires each clinic escort to

sign the revised protocol, which instructs the escort:

Do not address the protesters or say anything to

the patient abowt the protesters’ comments,

including your own views. Do not take

protesters’ brochures from the patient if she has

taken one. If conversation is warranted . . . talk

about neutral topics such as the weather. If the

patient appears to be upset and stressed, you can

encourage her to stay calm.

C.A. App. 875, 905 (PPLM 2001 escort protocol). Under the

same protocol, before providing assistance escorts must first

identify themselves to patients and ask whether the patient

would like to be escorted inside the clinic; the protocol states

that “if [the patient] says or indicates yes, then walk in with her;

if she replies negatively, the escort must withdraw.” C.A. App

875, 905.

The 2001 PPLM escort protocol is in marked contrast to

the PPLM escort policy before the Act took effect, under which

escorts were permitted to speak more freely, including to

reassure a patient that she was permitted to make her decision

regarding abortion. C.A. App. 908, 910. In the Petition,

petitioners quote at length from the pre-Act escort policy, Pet.

8, { 1, but fail to point out that this policy was superceded when

the Act took effect.

Lower Court Proceedings

District Court. On November 3, 2000, petitioners filed

their complaint seeking declaratory and injunctive relief against

the Act, which was scheduled to take effect November 10,

8

2000. They challenged the Act, on its face, under the First

Amendment and other provisions. , App. 102a-103a. After a

hearing, the district court preliminarily enjoined enforcement of

those provisions of the Act that restrict non-consensual

approaches near clinic entrances. App. 112a-113a. The court

held that the Act imposed a content-based restriction on speech

because it applies only at abortion clinics. App. 109a. The

court also held that the Act’s clinic employee exemption

discriminates on the basis of viewpoint because employees

“have a strong financial interest or philosophic incentive to

counsel the listener to undergo an abortion... .” App. 110a.

Court of Appeals (“McGuire I”). The First Circuit

reversed the district court’s order granting a preliminary

injunction, holding that “the Act, on its face, lawfully regulates

the time, place, and manner of speech without discriminating

based on content or viewpoint.” App. 72a.

The court reviewed the Act “through the prism of Hill

v. Colorado, 530 U.S. 703 (2000).” in which this Court upheld

Colorado’s more extensive floating buffer zone statute against

a First Amendment challenge. App. 71a. The court first noted

that a floating buffer zone law does not directly regulate speech,

but only restricts its time. place or manner. App. 74a-75a. The

court then considered whether the Act is content-neutral, even

though it operates only near the entrances to reproductive health

care facilities. App. 8la. For the court, the key question —

answered in the affirmative - was whether the Act “serves a

legitimate purpose unrelated to expressive content;” — if so, “it

is deemed content-neutral even if it has an incidental effect on

some speakers and not others.” /d. at 44, citing Hill, 530 U.S.

at 736, and Ward v. Rock Against Racism, 491 U.S. 781, 791

(1989). After considering extensive testimony that was taken

at the legislative hearing on the Act, the court concluded that

the need to combat violence and the other negative “secondary

t

:

9

effects” of protests at abortion clinics provided a content-

neutral justification for the Act’s focus on these facilities. App.

8la-83a. The court found that “targeting these sites furthers

conventional objectives of the state's police power —

promoting public health, preserving personal security, and

affording safe access to medical services.” App. 81a.

Under a similar analysis, the court rejected petitioners’

argument that the Act discriminates on the basis of viewpoint

— in favor of “pro-choice” positions — because of its exemption

for “employees or agents of [a reproductive health care] facility

acting within the scope of their employment.” Mass. G.L. c.

266, § 120E%2(b)(2). App. 83a-87a. Because it is within an

escort’s scope of employment to “assist in protecting patients

and ensuring their safe passage as they approach RHCFs,” the

court held that the employee exemption serves the Act’s goals

of advancing public safety and protecting access to health care

services, both of which are unrelated to expressive content.

App. 84a. The court did, however, note that if “experience

shows that clinic staffers in fact are utilizing the exemption as

a means either of proselytizing or of engaging in preferential

pro-choice advocacy, the plaintiffs remain free to challenge the

Act, as applied, in a concrete factual setting.” App. 87a.

Having concluded that the Act is a content-neutral

“time, place and manner” restriction, the court considered,

under the intermediate scrutiny test, whether the Act “is

narrowly tailored to serve significant state interests while

leaving open ample alternative channels of communication.”

App. 87a-88a, citing Clark v. Cmty. for Creative Non-Violence,

468 U.S. 288, 293 (1984). The court held that the Act readily

meets this test. The court found that the purposes advanced by

the Act — increasing public safety and safeguarding access to

medical services, among others — “are firmly rooted in the

state’s traditional police powers [and are] precisely the sort of

10

interests that justify some incidental burdening of First

Amendment nghts.” App. 88a. citing Hill, 530 U.S. at 715.

The court also found the Act narrowly tailored because it

“affects only areas immediately adjacent to RHCFs; prohibits

cnly nonconsensual approaches within six feet; and applies only

within a clearly marked eighteen-foot radius from clinic

entrances and exits.” App. 89a.

District Court after Remand

After remand from the court of appeals, petitioners

pressed their claim that the clinic employee exemption, as

applied, permits escorts to engage in ’ preferential pro-abortion

advocacy within the restricted areas” in violation of the First

Amendment. App. 49a. The district court granted respondents’

motion for summary judgment, holding that, on the facts

presented, petitioners had not shown that the enforcement of the

statute amounted to viewpoint discrimination.° The court noted

that the Attorney General had interpreted the Act “so as to

require evenhanded enforcement . . . even against clinic

employees and agents,” and that his “interpretation has been

adopted by the law enforcement authorities.” App. 52a-53a. In

addition, the court found that petitioners produced no evidence

that the State, with respect to conduct in the buffer zone, was

"ignoring the speech activities of favored speakers (or . .

prosecuting, issuing warnings, or unduly beleaguering only

disfavored speakers)." App. 53a. Finally, the court noted that

petitioners’ evidence “focuses almost entirely on the conduct of

clinic escorts,” but held that since the escorts were private

actors, and there was no evidence of unequal treatment by law

6

Earlier, the district court granted summary judgment for

respondents on petitioners’ facial challenge to the Act, in view of the

First Circuit’s decision in McGuire I. App. 68a, n.10.

1]

enforcement, petitioners’ as-applied claim failed for lack of

State action. App. 54a-S6a.

Court of Appeals (“McGuire IT”)

On appeal, the First Circuit affirmed the district court’s

grants of summary judgment rejecting petitioners’ facial and as-

applied claims. App. 1a-32a. With respect to petitioners’ facial

claim, which was directed primarily at the clinic employee

exemption, the court determined that petitioners’ had advanced

“no reason why the conclusion [it] reached in McGuire]... is

flawed.” App. 20a. Following this Court’s settled precedent,

the court explained that, because the Act promotes a neutral

legislative purpose, it is deemed content neutral even if it has an

“incidental [] . . . adverse effect on certain messages while

leaving others untouched.” App. 18a, citing 80a. See Ward v.

Rock Against Racism, 491 U.S. 781, 791 (1989). Accordingly,

because the Act advances legitimate and neutral goals, the court

found it content-neutral even though petitioners asserted that,

in practice, the Act “has a tendency to burden pro-life speech

more than it burdens pro-choice speech.” App. 18a

The court also rejected petitioners’ as-applied challenge,

which again was directed mainly to the clinic employee

exemption. The court explained that this claim must be based

on proof that the Act, although neutral on its face, “has been

enforced selectively in a viewpoint discriminatory way.” App.

25a, citing Thomas v. Chicago Park Dist., 534 U.S. 316, 325

(2002) (requiring proof of “a pattern of unlawful favoritism”’).

“Such a challenge is dependent on the factual evidence

provided as to how the statutory scheme has in fact operated

vis-a-vis the plaintiffs.” App. 25a. After an extensive

examination of this evidence and “resolving all factual disputes

in [petitioners’] favor, the court rejected the as-applied claim.

See App. 3a-13a, 29a-31a. The court explained that “even if

12

the [petitioners] have produced some evidence that pro-abortion

individuals violated the statute... they are stymied because

there is no evidence that the police turned a blind eye toward

pro-abortion speech while not turning a blind eye to possible

transgressions by plaintiffs.” App. 30a.’ The court concluded

that “‘on the evidence, [the Act] has been applied evenhandedly

to both sides... .” App. 3la.*

The court also stated: “The evidence shows that the police

responded to all incidents involving pro-abortion personnel to which

they have been made aware. [The police] cannot be expected to be

made aware of every incident. particularly when, as the distnct court

noted, ‘none of the plaintiffs has complained to the police or to any

other law enforcement authonty about any oral protests, education,

or counseling being engaged 1n by employees and agents at clinic

entrances.”” App. 30a-31a. quoting district court opinion at 51a.

8

The court also rejected, for lack of state action, petitioners’

argument that an as-applied violation was established simply by

petitioners’ testimony that climic escorts, acting on their own,

interfered with petitioners’ activities in the buffer zone. The court

noted that these complaints were about “purely private action” and

“only the government can violate First Amendment nghts.”” App.

22a.

Oe

13

REASONS FOR DENYING THE WRIT

I. The Petition Fails to Show a Conflict in the

Courts Below or Present an Issue of National

Importance that Merits Review in this Court.

The petition fails to satisfy any of the traditional criteria

for a grant of certiorari. Petitioners seek review only on the

ground that the court of appeals incorrectly applied this Court’s

settled First Amendment precedent to two particular features of

the Massachusetts “buffer zone” law. Pet. 12-13, 23-24. See

Pet. 24 (urging that Court should not leave First Circuit’s

“misreading of this Court’s First Amendment precedent

unreviewed”). Petitioners make no argument that a decision by

this Court will settle a conflict in the lower courts or resolve

any pending question about other States’ laws. Indeed, it is

obvious from the petition tnat a decision by this Court would

decide issues arising on/y under the Massachusetts Act. And,

to the extent petitioners argue that the Act, as applied, violates

the First Amendment (by reference to petitioners’ deposition

testimony concerning the conduct of PPLM escorts and the

particular responses of the local police), see Pet. 20, review is

particularly unwarranted, as a decision by this Court would be

confined to the unique facts of this case, which petitioners

nowhere assert are replicated in other settings across the

country.

The question of whether a narrowly tailored floating

buffer zone statute — restricting not speech but only non-

consensual “approaches” — violates the First Amendment was

answered just five years ago in Hill v. Colorado, 530 U.S. 703

(2000). Whereas the Colorado law upheld in Hill created an

eight foot floating buffer zone and covered areas within 100

feet of any health care facility, the Massachusetts law creates

only a six foot buffer zone that operates within 18 feet of the

14

entrances to reproductive health care facilities. For that reason,

the court of appeals found that the Act is “more precisely

focused and gives abortion protesters more opportunity for

advocacy than does the Colorado statute upheld in Hill.” Pet.

App. 89a. Plainly, after Hill, there is nothing in the modest

provisions of the Massachusetts Act — requiring only that

patients be permitted a six foot buffer for the last eight to ten

steps they take before entering a clinic — that warrants review

by this Court.

In view of Hill’s controlling authority, petitioners

directed their First Amendment claims at two features of the

Massachusetts Act that differ from the Colorado statute: (i) the

fact that the Act regulates conduct only near reproductive

health care facilities, rather than at all health care facilities, and

(ii) the Act’s exemption of clinic employees acting “within the

scope of their employment” from the ban on non-consensual

approaches within the 18 foot restricted area. Because these

claims (of content and viewpoint discrimination, respectively)

challenge only unique features of the Massachusetts Act, they

do not merit review by this Court. Petitioners make no

argument that there are laws in other jurisdictions with these

features, much less an argument that the courts of appeals have

reached conflicting holdings in reviewing such provisions.

As the First Circuit held, both the Act’s focus on

freestanding abortion clinics and its exemption permitting clinic

workers to assist patients safely to reach the clinic promote the

same neutral goals that supported the constitutionality of the

Colorado law in Hill — “unimpeded access to health care

facilities and the avoidance of potential trauma to patients

associated with confrontational protests.” Hill,530 U.S. at 715. |

See Pet. App. 8la, 84a. See also Schenck v. Pro-Choice |

Network of Western N.Y., 519 U.S. 357, 376 (1997)

(governmental interests in public safety and “protecting a |

15

woman’s freedom to seek pregnancy-related services” justified

appropriately tailored injunction to secure unimpeded access to

abortion clinics). Because a decision in this case would not

resolve an issue of broad importance, and because the court of

appeals faithfully applied Hi// and other settled precedent to

uphold the specific, challenged features of the Massachusetts

Act, this Court should deny review.

Il. Petitioners’ Challenge to the Clinic Employee

Exemption is Premised Upon a Construction

of this Provision that the State Courts Have

Not Considered.

Petitioners have asked this Court to review their claim

that the Act’s exemption for clinic employees acting “within

the scope of their employment,” on its face, discriminates on

the basis of viewpoint in violation of the First Amendment.

Petitioners’ challenge rests on the assumption that, within the

18 foot restricted area, the exemption necessarily permits clinic

escorts (even without consent) to approach patients closer than

six feet to engage in pro-abortion protest, education or

counseling. See Pet. 19 (asserting that employees’ speech

within the exemption “will necessarily express the clinic’s

view’) (emphasis in Petition). As yet, no Massachusetts court

has considered the scope or proper construction of this

exemption.’

* Under a procedure available in Massachusetts for advisory

opinions on proposed legislation, the Justices of the Massachusetts

Supreme Judicial Court opined that a prior proposed version of the

Act, establishing a fixed 25 foot buffer zone, would not violate the

First Amendment. Opinion of the Justices to the Senate, 430 Mass.

1205, 723 N.E.2d 1 (2000). The Justices did not, however, address

any aspect of the clinic employee exemption.

a

a

16

The First Circuit, however, rejected petitioners’

argument that the employee exemption must be construed as

having the “‘sole practical purpose . . . to promote a particular

side of the abortion debate[.]” Pet App. 85a.'° Instead, after

examining the Act’s extensive legislative history, the court held

that a “likely” explanation of the Legislature’s purpose was to

exempt “clinic workers — just as it exempted police officers —

in order to make crystal clear . . . that those who work to secure

peaceful access to RHCFs need not fear prosecution.” So

construed, the exemption would not violate the First

Amendment. Pet App. 86a-87a. Similarly, the Massachusetts

Attorney General construed the exemption as protecting escorts

only when they approach and speak to a patient as necessary to

help the patient safely access the clinic (i.e. when escorts are

“acting within the scope of their employment’’), but nor if they

approach to express their own or the clinic’s views about

abortion or other topics. App. 8a-9a. See C.A. App. 702-704,

705, 708, 711, 714.

Ultimately, the meaning of the clinic employee

exemption is a question of state law that only the Massachusetts

Supreme Judicial Court can definitively decide.'’ Indeed, a

state court construction of the Act upholding the Attorney

General’s present interpretation would dispose of, or at the very

least materially alter, the plaintiffs’ challenge to the clinic

'0 See Pet App. 85a (rejecting argument that the “exemption

only has meaning . . . insofar as it allows those who work for

RHCFs to approach within six feet of non-consenting patients to

engage in such activities (i.e., education, protest, and counseling).’’).

'' Even petitioners acknowledge that the-exemption lacks “the

definitive judicial construction” given the Colorado law by the

Colorado Supreme Court prior to review by this Court in Hill. Pet.

22, citing Hill, 530 U.S. at 719.

2

17

employee exemption. Cf, e.g., Paulussen v. Herion, 475 U.S.

557, 559 (1986) (per curiam) (declining to rule on

constitutionality of state law where state court interpretation of

related law could render constitutional claim irrelevant). Thus,

concerns for comity and federalism urge that this Court not

accept this case for review only to make an unnecessary

constitutional determination as to state law. ““Wamnings against

premature adjudication of constitutional questions bear

heightened attention when a federal court is asked to invalidate

a State's law, for the federal tribunal risks friction-generating

error when it endeavors to construe a novel state Act not yet

reviewed by the State's highest court.” Arizonans for Official

English v. Arizona, 520 U.S. 43, 79 (1997). See also Harrison

v. NAACP, 360 U.S. 167, 176 (1959) ("[N]o principle has found

more consistent or clear expression than that the federal courts

should not adjudicate the constitutionality of state enactments

fairly open to interpretation until the state courts have been

afforded a reasonable opportunity to pass upon them"). Under

this time-honored principle of restraint, the Court should deny

the petition.

III. The Court of Appeals Correctly Applied this Court’s

Precedents in Holding that the Act is Both Content

Neutral and Viewpoint Neutral.

A. That the Act applies only at places

that offer or perform abortions does

not make it a subject matter

restriction on speech.

Because the Act restricts only conduct (i.e. close, non-

consensual approaches within the 18-foot restricted area), it is

not a subject matter restriction on speech. Like the Colorado

statute, the Massachusetts Act “does not forbid the statement of

any position on any subject .... What it forbids, and all it

18

forbids, is approaching another person closer than [six] feet

(absent permission) to deliver the message.” Hill, 530 U.S. at

737-38 (Souter, J., concurring). Moreover, “(t]he fact that

speech by a stationary speaker is untouched by this statute

shows that the reason for its restriction on approaches goes to

the approaches, not to the content of the speech of those

approaching.” Jd. That the Act operates only at “reproductive

health care facilities” — defined as “place[s], other than within

a hospital, where abortions are offered or performed” — does

not transform its neutral ban on close “approaches” into a

subject matter restriction on speech.

The Massachusetts Legislature addressed the Act to

areas immediately adjacent to the entrances to reproductive

health care facilities because, quite simply, it was in these

locations that the Act’s restriction on close, non-consensual

approaches were needed to protect patients.'? Petitioners rely

on reasoning specifically rejected in Hill when they assert that

the Act imposes a subject matter restriction on abortion-related

speech because it is applicable only at freestanding clinics that

perform abortions, rather than at hospitals generally. In Hill the

Court found “flawed” a dissenting Justice’s view — which

petitioners echo — that a statute restricting speech becomes

unconstitutionally content-based when it applies "to the specific

locations where [that] discourse occurs." Hill, 530 U.S. at 724.

See id. (explaining that a “statute prohibiting solicitation in

airports that was motivated by the aggressive approaches of

Hare Krishnas does not become content based solely because

its application is confined to airports”). Rather, as the Court

has “repeatedly explained, government regulation of expressive

activity is ‘content neutral’ if it is justified without reference to

'2 The Legislature’s findings show plainly that the harms it

sought to address arose specifically at freestanding clinics that offer

or perform abortions. See Pet. App.95a-96a (setting out findings).

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19

the content of regulated speech.” Hill, 530 U.S. at 720, citing

Ward, 491 U.S. at 791. The court of appeals applied this

familiar test to conclude, correctly, that the Act's stated goals of

protecting public safety and access to medical care “justify its

specific application to RHCFs [reproductive health care

facilities].” App. 81a.

In reaching this conclusion, the court of appeals

observed that “[b]y the late 1990s, Massachusetts had

experienced repeated incidents of violence and aggressive

behavior outside RHCFs.” App. 72a. Testimony at a

legislative hearing “chronicled the harassment and intimidation

that typically occurred outside RHCFs[,] . . . the emotional and

physical vulnerability of wo..ien seeking to avail themselves of

abortion services, . . . and the deleterious effects of overly

aggressive demonstrations on patients and providers alike.” Id.

In these circumstances, the court of appeals found that

“targeting these [reproductive health care centers] further[ed]

conventional objectives of the state's police power —

promoting public health, preserving personal security, and

affording safe access to medical services.” App. 81a. Because

these objectives are “unrelated to the content of expression” the

Act is deemed neutral even if it has an “incidental effect on

some speakers or messages but not others.” Ward, 491 U.S. at

791. App. 80a-82a. Cf Madsen v. Women’s Health Center,

Inc., 512 U.S. 753, 762-64 (1994) (rejecting claim that

injunction against anti-abortion protesters, imposing 36 foot

buffer zone around abortion clinics, was content or viewpoint

based). That the Legislature may have been motivated by the

“conduct of the partisans on one side of [the] debate” and the

impact of such conduct on clinic patients did not make its

legislative-purposes illicit; the Court explicitly rejected that

20

argument in Hill. 530 U.S. at 724-25, citing Frisby v. Schultz,

487 U.S. 474, 482 (1988). n. 1.”

B. The clinic employee exemption does

not discriminate on the basis of

viewpoint because, properly

construed, it permits only

“approaches” intended to facilitate

patient safety.

The court of appeals also correctly rejected petitioners’

claim that the Act discriminates in favor of “pro-choice” views

because of its exemption for “employees or agents of [a

reproductive health care] facility acting within the scope of

their employment.” Pet. 3. The court held that this exemption

serves the Act’s goals of advancing public safety and protect»ng

access to health care services, both of which are unrelated to

expressive content. Pet. App. 84a. See Hill, 530 U.S. at 719-

_ 720 (endorsing these goals as content-neutral) The court again

relied upon the extensive legislative record, which “contain[ed]

numerous accounts of incidents in which clinic personnel had

to approach patients to protect them from protesters and,

sometimes, to prevent physical altercations.” Pet. App. 84a.

'S In addition, the Act’s focus on freestanding reproductive

health care facilities narrowly tailors it to the problem at hand, a

feature that supports, rather than detracts from, its constitutionality.

See Hill, 530 U.S. at 730 (law narrowly tailored where limited to

“the place where the restriction is most needed”). Indeed, the

petitioners in Hill challenged the Colorado law as overbroad

because it extended to all health care facilities, rather than just

abortion clinics. See Hill 530 U.S. at 730 (“[Petitioners] argue that

the statute is too broad because it protects too many people in too

many places, rather than just the patients at the facilities where

confrontational speech had occurred.”’).

21

The court reasoned that since “‘it is within the scope of their

employment for clinic personnel to escort patients in this

fashion, and since a primary purpose of the law is to facilitate

safe access,” the employee exemption serves the Act’s neutral

legislative goals and, accordingly, does not discriminate on the

basis of viewpoint. Jd. Cf. Rosenberger v. Rector and Visitors

of Univ. of Va., 515 U.S. 819, 829 ( 1995) (viewpoint

discrimination occurs where "the specific motivating ideology

or the opinion or perspective of the speaker is the rationale for

the [speech] restriction.").'4

Petitioners nonetheless urge that even if the exemption

protects a clinic escort only when she offers to help a patient

gain “peaceful access” to a reproductive health care facility, the

exemption favors “speakers offering access to abortion.” Pet.

21. In practical effect, however, the exemption does no such

thing by simply permitting clinic escorts to approach patients

— who are already within 18 feet of the entrance — to assist them

to safely reach the clinic door. In this respect the clinic

employee exemption serves the same neutral purposes as the

exemption in subsection (b)(3) of the Act for police officers.

See Pet. 3. Petitioners have not challenged the police officer

'* As discussed above, the court of appeals rejected petitioners

argument that the exemption must be construed to permit clinic

escorts to engage in “pro-choice” advocacy in the 18-foot area

where petitioners are restricted. App. 29a-30a, 85a-86a. In doing

so, the court properly took cognizance of the Massachusetts

Attomey General’s content-neutral interpretation of the exemption.

Pet. App. 8a-9a (summarizing Attorney General’s interpretation).

See Ward, 491 U.S. at 795-96 (“[iJn evaluating a facial challenge to

a state law, a federal court must .. . consider any limiting

construction that a state court or enforcement agency has

proffered”), quoting Hoffman Estates v. The Flipside, Hoffman

Estates, Inc, 455 U.S. 489, 494 n.5 (1982).

22

exemption as viewpoint-based and doubtless would not claim

that a police officer’s offer to help a patient reach the clinic

door is “viewpoint” based.

Under the Attorney General’s interpretation of the

exemption, which was given weight by the court of appeals,

escorts in the restricted area cannot “express their views about

abortion or otherwise [] engage in ‘protest, education or

counseling.” C.A. App. 705, 708, 711, 714. See App. 8a-9a,

29a-30a. So viewed, the exemption does not, as petitioners

argue, “represent a governmental attempt to give one side of a

debatable public question an advantage in expressing its views

to the people.” Pet. 19 (quoting City of Ladue v. Gilleo, 512

U.S. 43, 51 (1994) (internal quotation omitted)). Rather, it

simply promotes the State’s neutral legislative goals of

“preserving personal secunty, and affording safe access to

medical services,” App. 81a, and, accordingly, does not reflect

an impermissible bias against petitioners’ views.

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23

CONCLUSION

For the reasons set forth above, the Petition for a Writ

of Certiorari should be denied.

Respectfully submitted,

THOMAS F. REILLY

Attorney General

of Massachusetts

William W. Porter

Counsel of Record

Assistant Attorney General

One Ashburton Place

Boston, MA 02108

(617) 727-2200

Date: March 14, 2005