McCullen v. Coakley

708 F.3d 1

Eleanor McCULLEN et al., Plaintiffs, Appellants,

v.Martha COAKLEY et al., Defendants, Appellees.

No. 12–1334.

United States Court of Appeals, First Circuit.

Jan. 9, 2013.

Mark L. Rienzi, with whom Edward C. DuMont, Todd C. Zubler, Wilmer Cutler Pickering Hale and Dorr LLP, Philip D. Moran and Michael J. DePrimo, were on brief, for appellants.

William W. Porter, Assistant Attorney General, with whom Martha Coakley, Attorney General of Massachusetts, Kenneth W. Salinger and Gabrielle Viator, Assistant Attorneys General, were on brief, for appellees.

Before BOUDIN,^*SELYA and STAHL, Circuit Judges.

SELYA, Circuit Judge.

This case does not come to us as a stranger. At the turn of the century, the Massachusetts legislature passed a law that created fixed and floating buffer zones around abortion clinics. We rejected serial challenges to the constitutionality of that law. See McGuire v. Reilly (McGuire I), 260 F.3d 36 (1st Cir.2001) (rejecting facial challenge); McGuire v. Reilly (McGuire II), 386 F.3d 45 (1st Cir.2004) (rejecting as-applied challenge). The SupremeCourt denied certiorari. 544 U.S. 974, 125 S.Ct. 1827, 161 L.Ed.2d 724 (2005).

One might have thought that the matter would end there, but it did not. In 2007, the legislature revisited the statute and amended it to create a fixed thirty-five-foot buffer zone around the entrances, exits, and driveways of abortion clinics. The revised statute drew renewed fire and, in 2009, we upheld it against a facial challenge. See McCullen v. Coakley (McCullen I), 571 F.3d 167 (1st Cir.2009), cert. denied,––– U.S. ––––, 130 S.Ct. 1881, 176 L.Ed.2d 362 (2010). This decision left open the plaintiffs' as-applied challenge, and they unsuccessfully pursued that initiative in the district court. See McCullen v. Coakley (McCullen II), 759 F.Supp.2d 133 (D.Mass.2010) (granting judgment on the pleadings on certain issues); McCullen v. Coakley (McCullen III), 844 F.Supp.2d 206 (D.Mass.2012) (resolving remaining issues after trial).

The plaintiffs again appeal. They advance a salmagundi of arguments, old and new, some of which are couched in a creative recalibration of First Amendment principles.

Few subjects have proven more controversial in modern times than the issue of abortion. The nation is sharply divided about the morality of the practice and its place in a caring society. But the right of the state to take reasonable steps to ensure the safe passage of persons wishing to enter healthcare facilities cannot seriously be questioned. The Massachusetts statute at issue here is a content-neutral, narrowly tailored time-place-manner regulation that protects the rights of prospective patients and clinic employees without offending the First Amendment rights of others. We therefore affirm the judgment below.

I. BACKGROUND

We briefly recount the historical background and travel of the case and then describe the particular circumstances concerning the three clinic locations that lie at the epicenter of the plaintiffs' as-applied challenge.

A. Travel of the Case.

The centerpiece of this saga is Mass. Gen. Laws ch. 266, § 120E 1/2 (2007) (the Act). The provenance and pertinent provisions of the Act are set out in some detail in McCullen I, 571 F.3d at 172–74, and we assume the reader's familiarity with that account. We rehearse here only what is necessary to place into perspective the issues on appeal.

The Act states in pertinent part that “[n]o person shall knowingly enter or remain on a public way or sidewalk adjacent to a reproductive health care facility” (RHCF) within a designated and clearly marked buffer zone. Mass. Gen. Laws ch. 266, § 120E 1/2(b), (c). The buffer zone spans

a radius of 35 feet of any portion of an entrance, exit or driveway of a[n RHCF] or within the area within a rectangle created by extending the outside boundaries of any entrance, exit or driveway of a[n RHCF] in straight lines to the point where such lines intersect the sideline of the street in front of such entrance, exit or driveway.

Id.§ 120E 1/2(b). Four categories of persons identical to those enumerated in the 2000 version of the law are exempted:

(1) persons entering or leaving such 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 public sidewalk or street right-of-way adjacent to such facility solely for the purpose of reaching a destination other than such facility.

Id.

On January 25, 2008, the Massachusetts Attorney General sent a letter to a wide audience, including RHCF personnel and law enforcement agencies. The text of the letter is reproduced as an appendix to our opinion in McCullen I, 571 F.3d at 184. Its stated purpose is to summarize the provisions of the Act and offer “guidance to assist [ ] in applying the four exemptions.”

On January 16, 2008, the plaintiffs brought this action against the Massachusetts Attorney General in the federal district court.¹ Invoking 42 U.S.C. § 1983, they alleged a plethora of constitutional claims.

The district court bifurcated the case, separating the plaintiffs' facial challenge from their as-applied challenge. In due season, the court addressed the facial challenge and upheld the Act.

On appeal, we affirmed, holding the Act to be content-neutral, viewpoint-neutral, and a valid time-place-manner regulation. McCullen I, 571 F.3d at 176–81 & n. 2. At the same time, we rebuffed the plaintiffs' overbreadth claim, citing Hill v. Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), in which the Supreme Court upheld a Colorado statute regulating communicative activities within 100 feet of healthcare facility entrances. See McCullen I, 571 F.3d at 181–82. We likewise rejected the plaintiffs' vagueness claim (which focused on the Attorney General's letter), explaining that such an attempt at interpretive guidance cannot alter the meaning of a law that is clear on its face. Id. at 182–83. Finally, we ruled that the Act did not constitute an unlawful prior restraint on protected speech. Id. at 183–84.

When the dust had settled, the district court took up the plaintiffs' as-applied challenge. As a threshold matter, it invoked the law of the case doctrine and resisted the plaintiffs' attempt to reargue the facial constitutionality of the Act. McCullen II, 759 F.Supp.2d at 136–41. Next, it granted the defendants' motion for judgment on the pleadings with respect to seven as-applied counts. Id. at 141–45. Turning to whether the Act, as applied, constituted a valid time-place-manner regulation, the court concluded that the only trialworthy issue concerned the adequacy of alternative channels of communication at the challenged facilities. Id. at 145. Following a bench trial, the court upheld the Act as applied. McCullen III, 844 F.Supp.2d at 213–25.

B. The Three Sites.

We rehearse the evidence anent the relevant clinic locations. As a prelude, we note that each of the plaintiffs engages in communicative activities outside one of these three RHCFs.

1. Boston. The Boston clinic is situated in a free-standing building at 1055 Commonwealth Avenue (a main thoroughfarein the Brighton section of Boston). Its front door faces Commonwealth Avenue; its rear garage entrance faces Gardner Street. All clinic patients enter through the front door and must use the twenty-five-foot-wide public sidewalk along Commonwealth Avenue. Buffer zones, marked with yellow arcs and posted signs, are appurtenant to each entrance.

Three of the plaintiffs (McCullen, Cadin, and Zarrella) regularly engage in “sidewalk counseling” at the Boston clinic. McCullen parks her car on Commonwealth Avenue and festoons it with pro-life signage; Zarrella sometimes prays aloud; and Cadin from time to time holds aloft a large pro-life sign.

A fourth plaintiff, Smith, has demonstrated outside the Boston clinic for many years. He has displayed a crucifix, sung religious hymns, and prayed aloud. His prayers are meant to be heard by passersby in hopes of persuading them to opt against abortion. He sometimes brings a loudspeaker to amplify group prayers that occur outside the clinic on the second Saturday of every month and on Good Friday.

The plaintiffs insist that they have achieved success in their counseling efforts: they speak with prospective patients, elicit responses, and hand out literature. In some instances, they have persuaded women to decide against terminating pregnancies. McCullen estimates that, during the period between November 2007 and May 2011, her sidewalk counseling convinced approximately eighty women to refrain from seeking abortions.

Despite their accomplishments, the plaintiffs argue that the buffer zones prevent close personal contact with their intended audience and, thus, impede their ability to communicate effectively. By way of illustration, Zarrella asserts that, although women “always” respond to her offers of enlightenment and assistance, she has not been able to convince any of them to opt out of an abortion since the 2007 buffer zones were put in place.

2. Worcester. The Worcester clinic is situated in a stand-alone building at 470 Pleasant Street. Its main entrance is accessible from Pleasant Street and also from a private parking lot behind the building. The public sidewalk on Pleasant Street is nearly fifty-four feet from the main door and staggered metal fences shield the front of the building and the private pedestrian walkway that runs between these points. Neither the fencing nor the walkway is on public property. The entrance to the parking lot is on Dewey Street and all vehicular traffic must use that entrance.

There are buffer zones marked with painted white arcs and posted signs on both Pleasant Street and Dewey Street. More than eighty-five percent of all patients arrive by car, park in the clinic's lot, and...