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Abortion Buffer-Zone Ruling in McCullen: The Supreme Court's Facade of Unity and the Future of Abortion Rights

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Thursday's Supreme Court ruling in McCullen vs. Coakley, despite the unified outcome and facade, makes it clear that abortion is and will continue to be a wedge issue dividing the justices for years to come.

At first blush, that fracture is masked by what appears to be unanimity in favor of the First Amendment and free expression. After all, in striking down a Massachusetts law imposing a 35-foot buffer zone outside of medical facilities that perform abortions, all nine justices were united in the outcome. Not a single one disagreed with the result that the law was unconstitutional.

McCullen thus appears to cut across the political lines that often split the justices neatly into blocks of four conservatives and four liberals, with Justice Anthony Kennedy typically providing the pivotal swing vote.

Adding to this mirage of harmony in McCullen is the fact that Chief Justice John Roberts, nominated by former President George W. Bush, wrote the opinion of the court. He was joined by the Court's typically liberal members -- Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan -- who were nominated by Presidents Bill Clinton and Barack Obama.

The other justices, including Kennedy and a typically conservative trio of justices -- Antonin Scalia, Clarence Thomas and Samuel Alito -- also agreed with the result reached by the Roberts' majority.

But that is where the mental image of the justices joining hands in bipartisan fashion around the high court campfire and singing a collective Kumbaya quickly comes to a close.

It is in the concurring opinions -- a typically biting one authored by Justice Scalia and joined by Justices Kennedy and Thomas, and a much briefer solo one penned by Justice Alito -- where the illusion of accord is shattered.

Although Roberts and his sometimes band of liberal friends -- he also was controversially joined by them back in 2012 in upholding the Patient Protection and Affordable Care Act in National Federation of Independent Business v. Sebelius -- deemed the Massachusetts law content neutral, Scalia called it a content-based law. Alito went even further to call it viewpoint based, a worse subset of a content-based law.

What's the difference between content-neutral and content-based laws and why does any distinction matter if the result is the same?

It matters enormously because if a law is classified as content-neutral, it is subjected to a much lighter and more deferential form of scrutiny by the court than if it is categorized as content-based. In turn, content-neutral laws are more likely to be upheld.

Roberts and the majority, in applying this form of relaxed review for content-neutral laws, found that the Massachusetts buffer-zone statute might have been okay if it had just been tightened up a little and refined a tad. In legal terms, the Massachusetts law simply was not narrowly tailored. As Roberts wrote, Massachusetts "has available to it a variety of approaches that appear capable of serving its interests." The Bay State only needs to go back to the drawing board and find some other means.

Justice Scalia lambasted the notion that the Massachusetts law was content neutral, asserting:

It blinks reality to say, as the majority does, that a blanket prohibition on the use of streets and sidewalks where speech on only one politically controversial topic is likely to occur - and where that speech can most effectively be communicated - is not content based. Would the Court exempt from strict scrutiny a law banning access to the streets and sidewalks surrounding the site of the Republican National Convention? Or those used annually to commemorate the 1965 Selma-to-Montgomery civil rights marches? Or those outside the Internal Revenue Service? Surely not.

For Scalia, the majority's conclusion that the law is content-neutral makes it just that much easier to declare valid other laws across the country that ostensibly target the speech of anti-abortion individuals. Roberts' opinion, Scalia asserts, "carries forward this Court's practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents." As Scalia writes:

the majority can preserve the ability of jurisdictions across the country to restrict anti-abortion speech without fear of rigorous constitutional review. With a dart here and a pleat there, such regulations are sure to satisfy the tailoring standards applied in . . . the majority's opinion.

Scalia even attempts to lessen the impact of the majority's conclusion that the law is content neutral by asserting that the majority's discussion of that issue was simply "dicta" -- matter extraneous to the real issues before the court, a sort of judicial jag irrelevant to reach the decision in the case.

The bottom line is that despite agreement among all nine justices on the result in McCullen, abortion drives a deep wedge into the heart of the Supreme Court, even when the issue is not overruling Roe v. Wade but a First Amendment controversy. The future of Roe remains in jeopardy.

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