Supreme Court Unanimously Rules In Favor Of WilmerHale Pro Bono Client, Against Speech-Restrictive Law

WilmerHale secured a significant victory in the US Supreme Court, on behalf of pro bono client Eleanor McCullen and others in a First Amendment challenge to a Massachusetts law restricting speech on sidewalks outside reproductive health care clinics that perform abortions. In a decision delivered on June 26, 2014, the Supreme Court unanimously held that the "buffer zone" law passed in Massachusetts in 2007 was unconstitutional.

Massachusetts first enacted a "buffer zone" law for reproductive health care facilities in 2000, after the Supreme Court upheld such a law in Hill v. Colorado, 530 U.S. 703 (2000). In 2007, Massachusetts replaced it with the law at issue in McCullen after claiming that the prior measure had not been effective and was difficult to enforce. The new law made it a crime to "enter or remain on a public way or sidewalk" within 35 feet of all clinic entrances and driveways, with exceptions for clinic employees; people going into or out of the clinic; and people entering the zone solely to pass to the other side.

"The Massachusetts law kept the public sidewalks open for clinic employees, but it swept away anyone, such as our clients, who wished to stand and speak peacefully near a clinic entrance or driveway," said Todd Zubler, WilmerHale's lead partner on the pro bono matter. "One of our clients, Ms. McCullen—a grandmother in her seventies—has been stationing herself for several years outside a Boston-area clinic twice a week offering counseling and practical assistance to try to persuade women entering the clinic to choose an alternative to abortion. Hundreds of women have accepted her offers of assistance over the years, but her ability to offer that assistance was dramatically curtailed by the Massachusetts law."

The WilmerHale team successfully argued that the Massachusetts law failed each aspect of the Supreme Court's Ward test for regulations of the time, place, or manner of speech: (1) it was not content- or viewpoint-neutral, because it applied only outside abortion clinics and exempted clinic employees; (2) it was not narrowly tailored, because...

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