United States Court of Appeals
For the First Circuit
No. 00-2492
MARY ANNE MCGUIRE ET AL.,
Plaintiffs, Appellees,
v.
THOMAS F. REILLY, ETC., ET AL.,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.
Patricia Correa, Assistant Attorney General, with whom
Thomas F. Reilly, Attorney General of Massachusetts, Adam Simms
and Elizabeth Frumkin, Assistant Attorneys General, were on
brief, for appellants.
Jennifer C. Jaff, Killian, Donohue & Shipman, LLC, and
Lucinda M. Finley on consolidated brief for Conn. Women's
Education and Legal Fund, National Abortion Federation, NOW
Legal Defense and Education Fund, Feminist Majority Foundation,
Voters for Choice, American Jewish Congress, Conn. NARAL, Conn.
Chapter of NOW, National Center for the Pro-Choice Majority, and
Women's Law Project, amici curiae.
Carter G. Phillips, Paul E. Kalb, Jennifer M. Rubin, and
Sidley & Austin on brief for American College of Obstetricians
and Gynecologists, Mass. Medical Society, and American Medical
Ass'n, amici curiae.
Cynthia Stone Creem and Sean J. Kealy on brief for Senator
Cynthia Stone Creem, Co-Chair, Joint Comm. on Criminal Justice
(Mass. Senate), amicus curiae.
Richard Blumenthal, Attorney General of Connecticut, Eliot
D. Prescott and Jane R. Rosenberg, Assistant Attorneys General,
on brief for States of Connecticut, Colorado, Maryland, Nevada,
and New York, amici curiae.
Paul E. Nemser, U. Gwyn Williams, Ketanji Brown Jackson, and
Goodwin Procter LLP on brief for Women's Bar Ass'n of Mass.,
Abortion Access Project of Mass., AIDS Project of Worcester,
Alternative Medical Care of Mass., American Ass'n of Univ.
Women-Mass., Big Sister Ass'n of Greater Boston, Boston Women's
Health Book Collective, Everywoman's Center, Four Women, Inc.,
League of Women Voters of Mass., Mass. NARAL, Mass. Chapter of
NOW, Mass. Public Health Ass'n, National Council of Jewish
Women-Mass., Religious Coalition for Reproductive Choice,
Tapestry Health Systems, Union of American Hebrew Congregations-
Northeast Council, Womancare/Repro Associates, and YWCA of
Cambridge, amici curiae.
Mark L. Rienzi, with whom Thomas M. Harvey and Dwight G.
Duncan were on brief, for appellees.
Maryclare Flynn on brief for Mass. Citizens for Life, Inc.,
amicus curiae.
Vincent P. McCarthy, American Center for Law and Justice
Northeast, Inc., on brief for Family Research Council and Focus
on the Family, amici curiae.
August 13, 2001
SELYA, Circuit Judge. This appeal — in which we have
the benefit of exemplary briefing by the parties and the various
amici — requires us to reconcile a triad of state interests
(protecting public health, maintaining public safety, and
preserving access to medical facilities) with the First
Amendment interests of those who challenge restrictions on how
they may debate issues of public concern. We act in the context
of a Massachusetts statute, Mass. Gen. Laws ch. 266, § 120E½
(the Act), which creates a floating six-foot buffer zone around
pedestrians and motor vehicles as they approach reproductive
health care facilities (RHCFs). We view that statute through
the prism of Hill v. Colorado, 530 U.S. 703 (2000), in which the
United States Supreme Court upheld an analogous statute despite
the fact that it incidentally restricted some speech.
The district court found meaningful distinctions
between the Act and the Colorado statute at issue in Hill,
determined that these distinctions undermined the
constitutionality of the Act, and preliminarily enjoined the
Act's enforcement. See McGuire v. Reilly, 122 F. Supp. 2d 97,
101-03 (D. Mass. 2000). But the distinctions noted by the
district court do not make a dispositive difference. Hill
controls, and the Act, on its face, lawfully regulates the time,
place, and manner of speech without discriminating based on
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content or viewpoint. Accordingly, we reverse the district
court's ukase.
I. BACKGROUND
In order to frame the issues on appeal, we think it is
useful to trace the developments leading to the Act's passage,
survey its text, and place it in the context suggested by the
Hill Court's decision. With that foundation in place, we then
recount the proceedings below.
A. The Act's History.
By the late 1990s, Massachusetts had experienced
repeated incidents of violence and aggressive behavior outside
RHCFs. Concerned legislators responded to these disturbances by
introducing Senate Bill No. 148, see S.B. 148, 181st Gen. Ct.,
Reg. Sess. (Mass. Jan. 6, 1999), reprinted in Appendix B hereto.
The bill purposed to create a fixed twenty-five foot buffer zone
from RHCFs' entrances, exits, and driveways, and with limited
exceptions, to prohibit all persons from entering, or remaining
within, that buffer zone regardless of the person's intent or
the willingness of others to listen. The state senate held a
hearing in April of 1999. The received testimony chronicled the
harassment and intimidation that typically occurred outside
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RHCFs. In addition, numerous witnesses addressed the emotional
and physical vulnerability of women seeking to avail themselves
of abortion services, and gave accounts of the deleterious
effects of overly aggressive demonstrations on patients and
providers alike. Based in part on this testimony, the senate
concluded that existing laws did not adequately protect public
safety in areas surrounding RHCFs. To remedy this situation,
the senate favored the creation of fixed buffer zones. The
sponsors of the bill left no doubt that they intended the
proposed law to "increase public safety in and around [RHCFs]"
while "maintain[ing] the flow of traffic and prevent[ing]
congestion" there. S.B. 148, supra, § 1. In the bargain, the
sponsors expected the law to provide "reasonable time, place and
manner restrictions to reconcile and protect both the First
Amendment rights of persons to express their views near
reproductive health care facilities and the rights of persons
seeking access to those facilities to be free from hindrance,
harassment, intimidation and harm." It thereby would "create an
environment in and around reproductive health care facilities
which is conducive towards the provision of safe and effective
medical services . . . to its patients." Id.
Skeptics worried that the proposed law might offend the
Constitution. To stave off these gloom-and-doom predictions,
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the senate, on November 3, 1999, asked the Massachusetts Supreme
Judicial Court (SJC) for an advisory opinion on the bill's
constitutionality. On January 24, 2000, the SJC concluded that
the Constitution presented no obstacle to enactment. Opinion of
the Justices to the Senate, 430 Mass. 1205, 1211-12 (2000). The
SJC advised that the bill, as framed, was unrelated to the
content of protected expression. Id. at 1209. Moreover, the
restrictions imposed had a rational basis in view of the
heightened governmental interest that arises when "advocates of
both sides of one of the nation's most divisive issues
frequently meet within close proximity of each other in the
areas immediately surrounding the State's clinics, in what can
and often do become congested areas charged with anger." Id. at
1210.
After receiving this favorable review, the senate
engrossed Senate Bill No. 148 on February 29, 2000. That
version of the law never came to a vote in the house of
representatives, mainly because the United States Supreme Court
decided Hill on June 28, 2000. In that opinion, the Court
upheld, as a content-neutral time, place, and manner
restriction, a Colorado statute designed to ameliorate the same
evils. 530 U.S. at 719-21. The Court's conclusion rested on
three pillars:
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First, [the statute] is not a regulation of
speech. Rather, it is a regulation of the
places where some speech may occur. Second,
it was not adopted because of disagreement
with the message it conveys. . . . Third,
the State's interests in protecting access
and privacy, and providing the police with
clear guidelines, are unrelated to the
content of the demonstrators' speech.
Id. at 719-20 (internal quotation marks omitted).
Massachusetts decided to follow the trail that Colorado
had blazed. Consequently, the house of representatives struck
the text of Senate Bill No. 148 and reformulated its language.
The amended version — ultimately enacted and codified as section
120E½ — recast the proposed statute and, most notably, replaced
the fixed buffer zones originally envisioned by the state senate
with floating buffer zones of the type upheld in Hill. The
house engrossed the bill on July 28, 2000, and the senate
concurred the next day. On August 10, 2000, Governor Cellucci
signed the Act into law.
B. The Act's Text.
The Act, formally known as the Massachusetts
Reproductive Health Care Facilities Act, is reprinted in
Appendix A hereto. The Act makes it unlawful, absent consent,
"knowingly to approach [within six feet of a person or occupied
motor vehicle] for the purpose of passing a leaflet or handbill
to, displaying a sign to, or engaging in oral protest, education
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or counseling with such other person in the public way or
sidewalk area within a radius of 18 feet from any entrance door
or driveway to a reproductive health care facility." Mass. Gen.
Laws ch. 266, § 120E½(b).
The statutory prohibition is not absolute. In the
first place, the architecture of this floating buffer zone
precludes speakers from approaching unconsenting listeners, but
it neither prevents speakers from holding their ground nor
requires them to retreat from passersby. In the second place,
the Act's prophylaxis does not attach unless and until an RHCF
opens for business and clearly demarcates the protected
eighteen-foot zone. Id. § 120E½(c). Finally, the Act exempts
persons entering or leaving an RHCF; persons using the streets
to reach a destination other than the RHCF; and, while acting
within the scope of their employment, (i) the RHCF's employees
and agents, and (ii) certain government officials (e.g., police
officers). Id. § 120E½(b).
C. The Influence of Hill.
In rejecting a challenge to a similar Colorado statute,
the Hill Court made a number of pronouncements that inform our
resolution of this appeal. Perhaps most important, the Court
held that the Colorado law was content-neutral even though it
singled out "oral protest, education, [and] counseling," because
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this denoted a broad category of speech rather than specifying
a particular subject matter or viewpoint. 530 U.S. at 720. In
reaching this conclusion, the Court gave short shrift to the
argument that, by targeting health care facilities, the Colorado
statute impermissibly discriminated against abortion protesters.
Id. at 724.
Three other points deserve mention. First, the Court
emphasized the significance of the state's interest in
preserving access to health care facilities. Id. at 715.
Second, the Court noted that the Colorado legislature had
tailored the law narrowly to serve this end. Id. at 728-29.
Third, the Court determined that a floating buffer zone of
modest proportions left ample alternative channels for
communication. Id. at 723.
Hill bears on this case in another way as well.
Although the Act was conceived in the albedo of Hill, it is not
a carbon copy of the statute at issue there. There are five key
differences:
C The protections of the Colorado law apply to
all health care facilities, Colo. Rev. Stat. §
18-9-122, whereas the Act applies only to free-
standing clinics that provide abortions, Mass.
Gen. Laws ch. 266, § 120E½.
C The Colorado statute specifies an 100-foot
radius around all covered facilities, Colo.
Rev. Stat. § 18-9-122(3), whereas the Act
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specifies an eighteen-foot radius, Mass. Gen.
Laws ch. 266, § 120E½(b).
C The Colorado statute pretermits unwanted
approaches within eight feet of anyone inside
the specified area, Colo. Rev. Stat. § 18-9-
122(3), while the Act constructs only a six-
foot buffer zone, Mass. Gen. Laws ch. 266, §
120E½(b).
C The directive that the Act apply only when an
RHCF is open for business and has clearly
demarcated the protected area, Mass. Gen. Laws
ch. 266, § 120E½(c), is not part of the
Colorado scheme.
C The Act, unlike the Colorado law, exempts
various groups of persons from its reach. Id.
§ 120E½(b).
In most of these respects, the Act arguably restricts less
speech than its Colorado counterpart.
D. Proceedings Below.
The plaintiffs — Mary Anne McGuire, Ruth Schiavone, and
Jean B. Zarrella — are Massachusetts residents who regularly
protest, demonstrate, and provide sidewalk counseling outside
RHCFs. Shortly after the passage of the Act, they sued a number
of state hierarchs in the United States District Court for the
District of Massachusetts. They argued that the Act violated
their rights to freedom of speech, freedom of association, equal
protection, and due process of law. To remedy these
deprivations, they sought both a declaration of the Act's
unconstitutionality and an injunction against its enforcement.
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The district court determined that the Act offended the
First Amendment in two ways. First, the court regarded the Act
as an impermissible content-based restriction because it
"pertain[s] exclusively to speech that communicates a message of
protest, education, or counseling spoken at the entrances of
abortion clinics." McGuire, 122 F. Supp. 2d at 102. Second,
the court determined that the Act discriminated on the basis of
viewpoint. Id. at 103. The court reasoned that the Act's
exemption of agents and employees of RHCFs gives rise to this
infirmity because, by virtue of their "personal relationship
with the abortion clinic, [employees] have a strong financial
interest or philosophic incentive to counsel the listener to
undergo an abortion and they constitute very zealous advocates
for this controversial procedure." Id. For these reasons, the
court concluded that the plaintiffs had shown a substantial
likelihood of success on the merits and enjoined the defendants
from enforcing the Act pending a trial. Id. at 104.
This interlocutory appeal ensued. On motion duly
filed, see Fed. R. App. P. 8(a), we stayed the injunction
pending appeal. We now reverse.
II. THE PRELIMINARY INJUNCTION STANDARD
A party who seeks a preliminary injunction must show:
(1) that she has a substantial likelihood of success on the
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merits; (2) that she faces a significant potential for
irreparable harm in the absence of immediate relief; (3) that
the ebb and flow of possible hardships are in favorable
juxtaposition (i.e., that the issuance of an injunction will not
impose more of a burden on the nonmovant than its absence will
impose on the movant); and (4) that the granting of prompt
injunctive relief will promote (or, at least, not denigrate) the
public interest. Ross-Simons of Warwick, Inc. v. Baccarat,
Inc., 102 F.3d 12, 15 (1st Cir. 1996); Narragansett Ind. Tribe
v. Guilbert, 934 F.2d 4, 5 (1st Cir. 1991). Appellate review of
rulings granting or denying preliminary injunctions is quite
deferential. The court of appeals will set aside such a ruling
only if it is persuaded that the lower court mistook the law,
clearly erred in its factual assessments, or otherwise abused
its discretion in granting the interim relief. Ross-Simons, 102
F.3d at 15; Narragansett Ind. Tribe, 934 F.2d at 5.
III. THE FIRST AMENDMENT CHALLENGE
To place the appellants' First Amendment challenge into
workable perspective, we begin with an overview of the
constitutional doctrine governing restrictions on speech. We
then consider whether the Act qualifies as content-neutral
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legislation for First Amendment purposes. After answering this
question, we then subject the Act to the appropriate level of
judicial scrutiny. Throughout, we bear in mind that the
plaintiffs have mounted a facial challenge to the Act as a
whole, not an as-applied challenge to some particular
application of it.
A. The Doctrinal Underpinnings.
Freedom of speech "is the matrix, the indispensable
condition, of nearly every other form of freedom." Palko v.
Connecticut, 302 U.S. 319, 327 (1937) (Cardozo, J.).
Notwithstanding its exalted position in the pantheon of
fundamental freedoms, free speech always must be balanced
against the state's responsibility to preserve and protect other
important rights. This balance may be weighted differently,
however, depending upon the nature of the restriction that the
government seeks to foster. We elaborate below.
Governmental restrictions on the content of particular
speech pose a high risk that the sovereign is, in reality,
seeking to stifle unwelcome ideas rather than to achieve
legitimate regulatory objectives. Turner Broad. Sys., Inc. v.
FCC, 512 U.S. 622, 641 (1994). As a general rule, therefore,
the government cannot inhibit, suppress, or impose differential
content-based burdens on speech. Id. at 641-42. To provide
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maximum assurance that the government will not throw its weight
on the scales of free expression, thereby "manipulat[ing] . . .
public debate through coercion rather than persuasion," id. at
641, courts presume content-based regulations to be
unconstitutional. R. A. V. v. City of St. Paul, 505 U.S. 377,
382 (1992); Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d
731, 736 (1st Cir. 1995). While courts theoretically will
uphold such a regulation if it is absolutely necessary to serve
a compelling state interest and is narrowly tailored to the
achievement of that end, see, e.g., Boos v. Barry, 485 U.S. 312,
321-29 (1988); Ark. Writers' Project, Inc. v. Ragland, 481 U.S.
221, 231-32 (1987), such regulations rarely survive
constitutional scrutiny.
Courts grow even more chary when the government
attempts to differentiate between disparate views espoused by
those speaking on a singular subject. That chariness — some
might say hostility — is not surprising, for viewpoint-based
discrimination is a particularly offensive type of content-based
discrimination. Rosenberger v. Rector & Visitors of Univ. of
Va., 515 U.S. 819, 829 (1995).
Judicial review takes on a different cast when a
statute does not regulate speech per se, but, rather, restricts
the time, place, and manner in which expression may occur. Such
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laws are less threatening to freedom of speech because they tend
to burden speech only incidentally, that is, for reasons
unrelated to the speech's content or the speaker's viewpoint.
Where that description applies, courts employ a less exacting
level of scrutiny, upholding limitations on the time, place, and
manner of protected expression as long as "they are justified
without reference to the content of the regulated speech, . . .
are narrowly tailored to serve a significant governmental
interest, and . . . leave open ample alternative channels for
communication of the information." Clark v. Cmty. for Creative
Non-Violence, 468 U.S. 288, 293 (1984). This less taxing level
of analysis — commonly called "intermediate scrutiny" — makes
sense because the very fact of content neutrality offers a
meaningful assurance that the government is not striving in a
clandestine manner to steer public discourse or brainwash its
citizens. Turner Broad. Sys., 512 U.S. at 642. We start, then,
by analyzing whether the Act is content-neutral.
B. Classifying the Act.
The Supreme Court has explained that "the principal
inquiry in determining content neutrality, in speech cases
generally and in time, place, or manner cases in particular, is
whether the government has adopted a regulation of speech
because of disagreement with the message it conveys." Ward v.
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Rock Against Racism, 491 U.S. 781, 791 (1989). Thus, a law
designed to serve purposes unrelated to the content of protected
speech is deemed content-neutral even if, incidentally, it has
an adverse effect on certain messages while leaving others
untouched. See Hill, 530 U.S. at 736; City of Renton v.
Playtime Theatres, Inc., 475 U.S. 41, 47-48 (1986).
By addressing political speech on public streets and
sidewalks, the Act plainly operates at the core of the First
Amendment. See Hague v. CIO, 307 U.S. 496, 515 (1939) (noting
that public streets and sidewalks are traditional public fora
which "time out of mind, have been used for purposes of
assembly, communicating thoughts between citizens, and
discussing public questions"). First Amendment interests
nonetheless must be harmonized with the state's need to exercise
its traditional police powers. Hill, 530 U.S. at 714-15. The
district court resolved this balance against the appellants. It
opined that the state legislature enacted section 120E½ because
it disagreed with both the content of, and the viewpoint
inherent in, anti-abortion protests. See McGuire, 122 F. Supp.
2d at 102-03. The court thus concluded that the Act, on its
face, discriminates against abortion-related speech, id. at 102,
and that the employee exemption compounds this evil by
facilitating the airing of pro-choice sentiments while
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simultaneously restricting the expressive activities of pro-life
partisans, id. at 103. We do not agree.
In holding that the Act constitutes invidious content-
based discrimination against abortion-related speech, the lower
court emphasized that "the Massachusetts statute applies
exclusively to speech communicated at abortion clinics and not
. . . to all health care facilities." Id. at 102. We believe
that the court, in reaching this conclusion, misconstrued
applicable First Amendment doctrine by focusing exclusively on
the effects of the Act rather than on its underlying purpose.
The critical question in determining content neutrality
is not whether certain speakers are disproportionately burdened,
but, rather, whether the reason for the differential treatment
is — or is not — content-based. See Hill, 530 U.S. at 719
(positing that a statute is content-neutral when it does not
directly regulate speech, has its origins in a legislative
purpose unrelated to disagreement with the underlying message of
particular speech, and advances interests unconnected to
expressive content). As long as a regulation serves a
legitimate purpose unrelated to expressive content, it is deemed
content-neutral even if it has an incidental effect on some
speakers and not others. Ward, 491 U.S. at 791; Nat'l
Amusements, 43 F.3d at 740. In that event, all that remains is
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for the government to show that accomplishment of the legitimate
purpose that prompted the law also rationally explains its
differential impact. See City of Renton, 475 U.S. at 47-48;
Nat'l Amusements, 43 F.3d at 738.
We conclude, without much question, that the Act's
stated goals justify its specific application to RHCFs. The
Massachusetts legislature, confronted with an apparently serious
public safety problem, investigated the matter thoroughly. That
investigation yielded solid evidence that abortion protesters
are particularly aggressive and patients particularly vulnerable
as they enter or leave RHCFs. Thus, 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. Although the Act
clearly affects anti-abortion protesters more than other groups,
there is no principled basis for assuming that this differential
treatment results from a fundamental disagreement with the
content of their expression. Rather, the finding required on
these facts is that the legislature was making every effort to
restrict as little speech as possible while combating the
deleterious secondary effects of anti-abortion protests. Just
as targeting medical centers did not render Colorado's
counterpart statute content-based, Hill, 530 U.S. at 722-23, so
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too the Act's targeting of RHCFs fails to undermine its status
as a content-neutral regulation.1
To be sure, the plaintiffs insist that the state's
professed concerns about public safety, personal security, and
access to medical facilities are mere pretexts for its desire to
censor anti-abortion speech. This insistence gets them nowhere.
For one thing, their insinuations are unsupported by any record
evidence. For another thing, where differential treatment is
justified, on an objective basis, by the government's content-
neutral effort to combat secondary effects, it is insufficient
that a regulation may have been adopted in direct response to
1The plaintiffs see this targeting as a smoking gun. In
this regard, they cite Carey v. Brown, 447 U.S. 455 (1980), and
Police Dep't of Chicago v. Mosley, 408 U.S. 92 (1972), for the
proposition that singling out a certain form of protest is
tantamount to content-based discrimination. These authorities
are unhelpful. In Carey, the Court struck down a statute that
prohibited residential protests other than peaceful labor
picketing. 447 U.S. at 471. In Mosley, the Court overturned a
statute that prohibited all protests except labor picketing near
a school. 408 U.S. at 101-02. In each instance, the Court
declared the statute unconstitutional because the legislative
purpose — protecting residential privacy and preserving safe
access to schools, respectively — could not logically account
for the special treatment accorded to labor protests. Here,
however, as in Hill, 530 U.S. at 724, the targeting is closely
confined to the legitimate legislative purpose that underlies
the Act: combating violence at RHCFs. See also City of Renton
475 U.S. at 47 (upholding a zoning ordinance that sought to
prevent crime, protect residential neighborhoods, and maintain
property values by singling out adult theaters).
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the negative impact of a particular form of speech. See Hill,
530 U.S. at 723; Madsen v. Women's Health Ctr., 512 U.S. 753,
762-64 (1994); see also Nat'l Amusements, 43 F.3d at 740
("Secondary effects can comprise a special characteristic of a
particular speaker or group of speakers."). This is such a
case: considered as a whole, the Act provides a neutral
justification — unrelated to the content of speech — for
differential treatment.
In an effort to parry this thrust, the plaintiffs point
conspicuously to the district court's holding that the statutory
exemption for clinic agents and employees constitutes
impermissible viewpoint-based discrimination (and, therefore,
taints the entire Act). The court premised this holding on its
determination that, by allowing clinic employees to enter the
floating buffer zone without constraint, the Act permits free-
ranging expression of pro-choice views while suppressing pro-
life messages. McGuire, 122 F. Supp. 2d at 103-04. Because
this determination rests on an unsubstantiated factual
foundation, we reject it.
A court's findings of fact must be anchored in
probative evidence. See United States v. Frankhauser, 80 F.3d
641, 654-55 (1st Cir. 1996); Blohm v. Commissioner, 994 F.2d
1542, 1548 (11th Cir. 1993); United States v. Williams, 891 F.2d
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962, 964-67 (1st Cir. 1989). This bedrock principle applies to
findings made on a motion for a preliminary injunction. See,
e.g., Cohen v. Brown Univ., 991 F.2d 888, 906 (1st Cir. 1993).
Here, however, the district court lumped together all agents and
employees of RHCFs and characterized them, without a shred of
record support, as "very zealous advocates for this
controversial procedure [abortion]." McGuire, 122 F. Supp. 2d
at 103. The court then stated, again without any evidentiary
predicate, that these "[e]mployees and agents of abortion
clinics escort potential abortion clinic clients and counsel and
exhort them to undergo an abortion within the restricted areas."
Id. at 103 n.9. These findings are wholly unsupported and,
hence, clearly erroneous. A judge's intuition cannot take the
place of proof. See United States v. Ortiz, 966 F.2d 707, 717
(1st Cir. 1992) (holding that decisions must be based on more
than the judge's hunch, unsupported by facts); cf. Tuf Racing
Prods., Inc. v. Am. Suzuki Motor Corp., 223 F.3d 585, 590 (7th
Cir. 2000) (noting that judges must reason from facts rather
than settling for guesswork).
There is, moreover, another defect in the district
court's treatment of the employee exemption. The court ignored
the matter of secondary effects as they bear on that exemption.
This was an unfortunate oversight: the secondary effects that
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the Act was designed to ameliorate include securing public
safety in and around RHCFs, preventing traffic congestion, and
balancing free speech with the need to maintain a salutary
atmosphere for those seeking access to medical services. See
S.B. 148, supra, § 1. There is no evidence that agents and
employees of RHCFs cause these problems.2 Thus, excluding those
individuals does not undermine the legitimacy of the Act as a
vehicle to curb the secondary effects of particular conduct and
thereby achieve the legislature's announced purposes.
The legislative history bears witness to this
conclusion. Testimony taken before the state senate indicates
beyond cavil that the employee exemption will promote the Act's
goals because clinic employees often assist in protecting
patients and ensuring their safe passage as they approach RHCFs.
Indeed, the record contains numerous accounts of incidents in
which clinic personnel had to approach patients to protect them
from protesters and, sometimes, to prevent physical
altercations. 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,
2
To be sure, the record does show that, on occasion, a
clinic employee has gotten into an altercation with an anti-
abortion protester. But this sort of disturbance presumably
would be stemmed by the exemption because the exemption tends to
keep clinic employees and abortion protesters apart.
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the employee exemption serves the basic objectives of the Act.
To cinch matters, the legislature rationally could have
concluded that clinic employees are less likely to engage in
directing of unwanted speech toward captive listeners — a datum
that the Hill Court recognized as justifying the statute there.
See Hill, 530 U.S. at 715-17.
Endeavoring to counter these points, the plaintiffs
posit that the employee exemption could not possibly have been
designed to combat those undesirable secondary effects because
the Act, without the exemption, permits any person to approach
a non-consenting patient for purposes other than education,
protest, and counseling. See Mass. Gen. Laws ch. 266, §
120E½(b). The exemption only has meaning, therefore, 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). From this plateau, the
plaintiffs suggest that if a clinic employee were to approach to
educate or counsel a prospective patient, that education or
counseling doubtless would manifest a pro-choice viewpoint. So
viewed, the sole practical purpose of the employee exemption is
to promote a particular side of the abortion debate — a feature
that renders the exemption discriminatory and ensures that any
application would violate the First Amendment.
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While this argument has a certain logic, it ultimately
fails. After all, the plaintiffs have challenged the Act on its
face. The nature of this challenge raises the bar for their
success: a party who mounts a facial challenge to a statute
must carry a significantly heavier burden than one who seeks
merely to sidetrack a particular application of the law. See
Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 580
(1998); Pharm. Research & Mfrs. of Am. v. Concannon, 249 F.3d
66, 76 (1st Cir. 2001); Watchtower Bible & Tract Soc'y, Inc. v.
Vill. of Stratton, 240 F.3d 553, 562 (6th Cir.), petition for
cert. filed, 69 U.S.L.W. 3750 (U.S. May 18, 2001) (No. 00-1737).
In the First Amendment context, this means that a
plaintiff who challenges a statute on its face ordinarily must
show either that the law admits of no valid application or that,
even if one or more valid application exists, the law's reach
nevertheless is so elongated that it threatens to inhibit
constitutionally protected speech. Time Warner Entm't Co. v.
FCC, 93 F.3d 957, 967 (D.C. Cir. 1996). The plaintiffs do not
challenge the employee exemption on the ground that it sweeps
too broadly. Thus, they must show that the exemption admits of
no constitutionally permissible application. This is an uphill
climb, requiring the legal equivalent of an alpenstock and
carabiners — and the plaintiffs are unable to scale the heights.
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Courts owe legislative judgments substantial respect
and, as a general matter, should be reluctant "to reduce
statutory language to a merely illustrative function." Mass.
Ass'n of HMOs v. Ruthardt, 194 F.3d 176, 181 (1st Cir. 1999).
The Massachusetts legislature may or may not have intended the
employee exemption to serve the purpose envisioned by the
plaintiffs. There are other likely explanations. For example,
the legislature may have exempted clinic workers — just as it
exempted police officers — in order to make crystal clear what
already was implicit in the Act: that those who work to secure
peaceful access to RHCFs need not fear prosecution. See id.
(explaining that a legislative body "may consider a specific
point important or uncertain enough to justify a modicum of
redundancy").
The ultimate difficulty, of course, is that the
legislature's subjective intent is both unknown and unknowable.
At this juncture, we can look only to the purposes that may
rationally be said to be served by the provision in question
(here, the employee exemption). That is a large part of the
reason why one who challenges a statute on its face must carry
an appreciably heavier burden: a facial challenge, unlike an
as-applied challenge, does not allow a reviewing court to base
its judgments on actual experience or provide the court any room
-25-
to capture nuances in a statute's meaning. See United States v.
Raines, 362 U.S. 17, 20-22 (1960); Richard H. Fallon, Jr., As-
Applied and Facial Challenges and Third-Party Standing, 113
Harv. L. Rev. 1321, 1330-35 (2000).
That ends this aspect of the argument. Because we can
envision at least one legitimate reason for including the
employee exemption in the Act, it would be premature to declare
the Act unconstitutional for all purposes and in all
applications. See United States v. Hilton, 167 F.3d 61, 71 (1st
Cir.) (noting that "[i]t makes little sense to strike down an
entire statute in response to a facial attack when potential
difficulties can be remedied in future cases through fact-
specific as-applied challenges"), cert. denied, 528 U.S. 844
(1999). If, as the plaintiffs predict, 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. See Pharm.
Research & Mfrs., 249 F.3d at 78 (rejecting facial challenge to
state statute without prejudice to plaintiff's right to launch
an as-applied challenge after implementation of the statute).
We recapitulate. The Act, on its face, is content-
neutral. Futhermore, although courts correctly regard viewpoint
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discrimination as a particularly pernicious form of content
discrimination, the Act does not discriminate against speakers
based on their views. The employee exemption too is neutral on
its face, drawing no distinction between different ideologies.
And to the extent (if at all) that the exemption contributes to
the Act's disproportionate impact on anti-abortion protesters,
it can be justified by reference to the state's neutral
legislative goals. We conclude, therefore, that since neither
the Act as a whole nor the employee exemption reflects an
impermissible bias against either the content of certain speech
or the views of certain speakers, the Act's constitutionality
must be determined by reference to the intermediate level of
scrutiny that attaches to content-neutral time, place, and
manner restrictions.
C. Intermediate Scrutiny.
Under the intermediate scrutiny standard, a law is
deemed constitutional if it is narrowly tailored to serve
significant state interests while leaving open ample alternative
channels of communication. See Renton, 475 U.S. at 50; Clark,
468 U.S. at 293. The Act passes this test.
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The state legislature ascribed four purposes to the
Act:3 to increase public safety in and around RHCFs; to ensure
smooth traffic flow; to balance free speech with the rights of
persons seeking access to RHCFs to be free from hindrance; and
to create an environment conducive to safe and effective medical
services. S.B. 148, supra, § 1. The interests that underlie
these purposes are firmly rooted in the state's traditional
police powers, and these are precisely the sort of interests
that justify some incidental burdening of First Amendment
rights. See Hill 530 U.S. at 715 (noting the "enduring
importance of the right to be free from persistent importunity,
following and dogging after an offer to communicate has been
declined") (citation and internal quotation marks omitted);
Schenck v. Pro-Choice Network, 519 U.S. 357, 376 (1997)
(extolling the significance of "ensuring public safety and
order, promoting the free flow of traffic on streets and
sidewalks, protecting property rights, and protecting a woman's
freedom to seek pregnancy-related services"); see also Madsen,
512 U.S. at 772-73 ("The First Amendment does not demand that
3
Although the state senate wrote this list of purposes as a
preamble to Senate Bill No. 148, there is nothing in the
subsequent legislative history to suggest that the purposes
changed after the senate bill was amended in the house of
representatives to produce the final version. We therefore
follow the parties' lead and assume that this litany applies to
the Act.
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patients at a medical facility undertake Herculean efforts to
escape the cacophony of political protests.").
On the flip side of the coin, the Act is narrowly
tailored and leaves open sufficient opportunity to communicate
in other ways. A law is narrowly tailored if it promotes a
substantial governmental interest that would be less effectively
achieved without the law and does so without burdening
substantially more speech than is necessary to further this
goal. Ward, 491 U.S. at 799. The plaintiffs argue that
Massachusetts previously had enacted a number of general
protections designed to combat the same evils as the Act, e.g.,
Mass Gen. Laws ch. 266 § 120E (knowingly obstructing entry to
health care facility); id. ch. 272 § 53 (disturbing the peace);
id. ch. 12 § 11H (impairing civil rights); id. 265 § 13A
(assault and battery), and that these non-speech-restricting
protections have not been enforced in the context of abortion
protests. They claim, moreover, that the only behavior targeted
by the Act that is not already covered by other laws is non-
threatening speech, and that the Commonwealth has offered no
content-neutral justifications for limiting such peaceful
discourse.
This argument is unconvincing. The Massachusetts
legislature reasonably concluded that existing law inadequately
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addressed the public safety, personal security, traffic, and
health care concerns created by persistent demonstrations
outside RHCFs. Indeed, the state senate specifically found that
existing statutory protections did not suffice — and this
finding is plausible given the general terms used by those
statutes (e.g., "obstruction," "disturbing the peace"). While
such wider nets might catch the big fish, there is every reason
to believe that they would let the fingerlings through. We have
said enough on this subject. The short of it is that the
legislature weighed the Hill Court's conclusions and formulated
a bill to suit. As a result of this careful craftsmanship, the
Act, in its final form, 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. This framework is more
precisely focused and gives abortion protesters more opportunity
for advocacy than does the Colorado statute upheld in Hill.
Compare Mass. Gen. Laws ch. 266, § 120E½ with Colo. Rev. Stat.
§ 18-9-122.4 Because the Supreme Court concluded that the
4To illustrate, the Act creates a six-foot bubble around
unwilling listeners, as opposed to the eight-foot bubble
sanctioned under the Colorado law; the Act covers an eighteen-
foot radius as opposed to the 100-foot radius covered by the
Colorado statute; and the Act, unlike its Colorado counterpart,
does not go into effect unless and until the covered area has
been clearly delineated.
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Colorado statute was narrowly tailored, the Act too satisfies
that requirement. If, as the Hill Court stated, visual and
verbal images are able to cross an eight-foot floating buffer
zone with sufficient ease that the "restriction on an unwanted
physical approach leaves ample room to communicate a message
through speech," 530 U.S. at 729, that same conclusion perforce
must apply to the Act's less commodious six-foot floating buffer
zone.
D. The Equal Protection Challenge.
Without developing the argument in detail, the
plaintiffs, like the court below, conclusorily assert that the
Act violates the Equal Protection Clause. Because the equal
protection interests involved in the differential treatment of
speech are inextricably intertwined with First Amendment
concerns, Police Dep't of Chicago v. Mosley, 408 U.S. 92, 95
(1972), and the plaintiffs do not develop the point separately,
we treat this assertion as part of the plaintiffs' First
Amendment challenge. In all events, it need not occupy us for
long.
From time to time, the Supreme Court has invoked equal
protection rather than free speech, as the basis for
invalidating a content-based speech restriction. E.g., Carey v.
Brown, 447 U.S. 455, 459-63 (1980); Mosley, 408 U.S. at 94-95.
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But where the state shows a satisfactory rationale for a
content-neutral time, place, and manner regulation, that
regulation necessarily passes the rational basis test employed
under the Equal Protection Clause. See Thorburn v. Austin, 231
F.3d 1114, 1122 (8th Cir. 2000); Hoover v. Morales, 164 F.3d
221, 227 n.3 (5th Cir. 1998); DLS, Inc. v. City of Chattanooga,
107 F.3d 403, 411 n.7 (6th Cir. 1997). So it is here: the Act
passes muster under the Equal Protection Clause for the same
reasons that it passes muster under the First Amendment.
IV. THE DUE PROCESS CHALLENGE
The failure of the plaintiffs' First Amendment
challenge does not end our journey. Even if the trial court's
rationale collapses, an appellee is free to defend the judgment
below on any other ground made manifest by the record. Mass.
Mut. Life Ins. Co. v. Ludwig, 426 U.S. 479, 481 (1976) (per
curiam); United States v. Craven, 239 F.3d 91, 97 (1st Cir.
2001). Embracing that tenet, the plaintiffs urge us to affirm
the issuance of the preliminary injunction on the ground that
the Act vests unbridled discretion in RHCFs (and, thus, violates
the plaintiffs' due process rights).
This exhortation hinges upon language in the Act which
provides that the six-foot floating buffer zone "shall only take
effect during a facility's business hours and if the area
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contained within the radius . . . is clearly marked." Mass.
Gen. Laws ch. 266, § 120E½(c). The plaintiffs posit that this
language vests private actors — the RHCFs — with unconstrained
power to restrict speech, and they cite numerous cases for the
black-letter proposition that the Due Process Clause forbids
standardless delegations of governmental authority, especially
to private parties. E.g., Forsyth County v. Nationalist
Movement, 505 U.S. 123, 130-31 (1992); City of Lakewood v. Plain
Dealer Publ'g Co., 486 U.S. 750, 758-59 (1988); Freedman v.
Maryland, 380 U.S. 51, 57-59 (1965).
The district court rejected this asseveration,
concluding that the quoted portion of the Act "is more logically
viewed as a notice requirement serving to protect the interests
of speakers such as plaintiffs." McGuire, 122 F. Supp. 2d at
101 n.7. We agree with this assessment. While the plaintiffs
cherry-pick statements from the case law in an effort to bolster
their position, they have wrested these statements from their
contextual moorings.
Without exception, the cases on which the plaintiffs
rely involve licensing schemes that allowed public officials to
make discriminatory, content-based decisions. E.g., City of
Lakewood, 486 U.S. at 759; Heffron v. Int'l Soc'y for Krishna
Consciousness, Inc., 452 U.S. 640, 648-49 (1981). By their very
-33-
nature, licensing schemes that embody grants of standardless
discretion to public officials (or sometimes private individuals
— conceptually, it makes no difference) cannot constitute valid
time, place, and manner restrictions because they "ha[ve] the
potential for becoming a means of suppressing a particular point
of view." Heffron, 452 U.S. at 649. Since the floating buffer
zone contemplated by the Act is content-neutral, see supra Part
III(B), the activation provision cannot raise this type of
constitutional concern. And in all events, the activation
provision, to the extent that it allows clinic employees to make
decisions that have a disproportionate impact on anti-abortion
speech, is easily justified as an incidental burden.5 See Nat'l
Amusements, 43 F.3d at 740.
V. CONCLUSION
The existence of a four-part framework for granting or
denying preliminary injunctive relief does not mean that all
four components are weighted equally. In the great majority of
cases, likelihood of success constitutes the proper focal point
of the inquiry. Ross-Simons, 102 F.3d at 16. This case is no
exception. The district court premised its issuance of a
5
We note an irony: as a practical matter the activation
provision tends to favor (rather than curtail) anti-abortion
expression because it establishes conditions that RHCFs must
meet before the Act's prophylaxis takes effect.
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preliminary injunction on its mistaken view that the plaintiffs
probably would succeed on their First Amendment challenge. But
this conclusion is insupportable. See supra Part III(B-C).
Moreover, the plaintiffs cannot establish a probability of
merits success on any other theory encompassed within their
facial challenge to the Act. See supra Parts III(D), IV. Since
likelihood of success is the sine qua non of preliminary
injunctive relief, Weaver v. Henderson, 984 F.2d 11, 12 (1st
Cir. 1993), we need go no further.
We reverse the order granting a preliminary injunction
and remand for further proceedings consistent with this opinion.
The stay previously issued is dissolved as moot.
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Appendix A
Mass. Gen. Laws ch. 266, § 120E½
SECTION 120E½: Reproductive Health Care Facilities
(a) For the purposes of this section, "reproductive health
care facility" means a place, other than within a hospital,
where abortions are offered or performed.
(b) No person shall knowingly approach another person or
occupied motor vehicle within six feet of such person or
vehicle, unless such other person or occupant of the
vehicle consents, 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 in
the public way or sidewalk area within a radius of 18 feet
from any entrance door or driveway to a reproductive health
care facility or within the area within a rectangle not
greater than six feet in width created by extending the
outside boundaries of any entrance door or driveway to a
reproductive health care facility at a right angle and in
straight lines to the point where such lines intersect the
sideline of the street in front of such entrance door or
driveway. This subsection shall not apply to the
following: —
(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.
(c) The provisions of subsection (b) shall only take effect
during a facility's business hours and if the area
contained within the radius and rectangle described in said
subsection (b) is clearly marked and posted.
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(d) Whoever knowingly violates this section shall be
punished, for the first offense, by a fine of not more than
$500 or not more than three months in a jail or house of
correction, or by both such fine and imprisonment, and for
each subsequent offense, by a fine of not less than $500
and not more than $5,000 or not more than two and one-half
years in a jail or house of correction, or both such fine
and imprisonment. A person who knowingly violates this
section may be arrested without a warrant by a sheriff,
deputy sheriff or police officer if that sheriff, deputy
sheriff, or police officer observes that person violating
this section.
(e) Any person who knowingly obstructs, detains, hinders,
impedes or blocks another person's entry to or exit from a
reproductive health care facility shall be punished, for
the first offense, by a fine of not more than $500 or not
more than three months in a jail or house of correction, or
by both such fine and imprisonment, and for each subsequent
offense, by a fine of not less than $500 and not more than
$5,000 or not more than two and one-half years in a jail or
house of correction, or both such fine and imprisonment.
A person who knowingly violates this section may be
arrested without a warrant by a sheriff, deputy sheriff or
police officer.
(f) A reproductive health care facility or a person whose
rights to provide or obtain reproductive health care
services have been violated or interfered with by a
violation of this section or any person whose rights to
express their views, assemble or pray near a reproductive
health care facility have been violated or interfered with
may commence a civil action for equitable relief. The
civil action shall be commenced either in the superior
court for the county in which the conduct complained of
occurred, or in the superior court for the county in which
any person or entity complained of resides or has a
principal place of business.
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Appendix B
S.B. 148, 181st Gen. Ct., Reg. Sess. (Mass. Jan. 6, 1999)
An Act relative to reproductive health care facilities
Be it enacted by the Senate and House of
Representatives in General Court assembled, and by the
authority of the same as follows:
SECTION 1. It is hereby found and declared that
existing law does not adequately protect the public safety
in the areas in and around reproductive health care
facilities. Indeed, such facilities in the Commonwealth of
Massachusetts have been the focal point of many blockades,
disturbances and even violence, particularly the shootings
at two reproductive health services facilities on December
30, 1994, which, left two persons dead and many injured.
It is further found that persons attempting to enter
or depart from reproductive health care facilities have
been subject to harassing or intimidating activity by
persons approaching within extremely close proximity and
shouting or waving objects at them, which has tended to
hamper or impede access to or departure from those facilities.
It is further found that such activity near
reproductive health care facilities creates a "captive
audience" situation because persons seeking health care
services cannot avoid the area outside of reproductive
health care facilities if they are to receive the services
provided therein, and their physical and emotional ailments
or conditions can make them especially vulnerable to the
adverse physiological and emotional effects of such
harassing or intimidating activities directed at them from
extremely close proximity.
It is further found that the violence and disturbances
described above have required the deployment of police
officers at significant cost to the cities and towns of the
Commonwealth, and continue to occur despite civil
injunctions that prohibit certain persons from engaging in
such conduct.
And it is further found that studies have shown that
clinics with buffer zones experience far larger decreases
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in every type of violence than clinics without buffer
zones.
Therefore, the purpose of this legislation is:
(1) to increase the public safety in and around
reproductive health care facilities;
(2) to maintain the flow of traffic and prevent
congestion around reproductive health care facilities;
(3) to enact reasonable time, place and manner
restrictions to reconcile and protect both the First
Amendment rights of persons to express their views near
reproductive health care facilities and the rights of
persons seeking access to those facilities to be free from
hindrance, harassment, intimidation and harm; and
(4) 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.
SECTION 2. Chapter 266 of the General Laws is hereby
amended by inserting after section 120E the following
section: —
(a) For the purposes of this section, "reproductive
health care facility" shall mean a place, other than within
a hospital, where abortions are offered or performed.
(b)(1) Except for those listed in subsection (2) below,
no person shall, during business hours of a reproductive
health care facility, knowingly enter or remain in the
following area of private property of a reproductive health
care facility or public right-of-way:
(A) the area within twenty-five (25) feet of any
portion of an entrance to, exit from, or driveway of a
reproductive health care facility; and
(B) the area within the rectangle created by
extending the outside boundaries of any entrance to, exit
from, or driveway of, a reproductive health care facility
in straight lines to the point where such lines intersect
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the sideline of the street in front of such entrance, exit
or driveway.
(2) The provision of subsection (1) of this
paragraph shall not apply to the following:
(A) persons entering or leaving such facility;
(B) employees or agents of such facility acting
within the scope of their employment;
(C) law enforcement, ambulance, firefighting,
construction, utilities, public works and other municipal
agents acting within the scope of their employment; and
(D) 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.
(c) Whoever knowingly violates this section shall be
punished, for the first offense, by a fine of not more than
one thousand dollars or not more than six months in a jail
or house of correction or both, and for each subsequent
offense by a fine of not less than five hundred dollars and
not more than five thousand dollars or not more than two
and one-half years in a jail or house of correction or both.
A person who knowingly violates this section may be
arrested without a warrant by a sheriff, deputy sheriff, or
police officer.
(d) Any reproductive health care facility or any person
whose rights to provide or obtain reproductive health care
services have been interfered with by a violation of this
section may commence a civil action for damages or
injunctive and other equitable relief, including the award
of compensatory and exemplary damages. Said civil action
shall be instituted either in the superior court for the
county in which the conduct complained of occurred, or in
the superior court for the county in which any person or
entity complained of resides or has a principal place of
business. An aggrieved person or entity which prevails in
an action authorized by this paragraph, in addition to
other damages, shall be entitled to an award of the costs
of the litigation and reasonable attorney's fees in an
amount to be fixed by the court.
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(e) A criminal conviction pursuant to the provision of
this section shall not be a condition precedent to
maintaining a civil action pursuant to the provision of
this section.
SECTION 3. The provisions of this act shall be deemed
severable, and if any provision of this act is adjudged
unconstitutional or invalid, such judgment shall not affect
other valid provisions hereof.
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