DENVER — The Supreme Court’s unanimous decision, today, overturning the Massachusetts law creating a 35-foot buffer around abortion clinics is actually an affirmation of Colorado’s version of the law according to state Rep. Mike McLachlan, who defended the “bubble bill” before SCOTUS as Solicitor General of Colorado back in 2000 and won.
“I don’t think any constitutional scholar of any validity would say that this means the Colorado law is unconstitutional,” said McLachlan, noting that the petitioners in the Massachusetts case asked the Court to reconsider the Colorado law as well and the Court declined.
Chief Justice Roberts’ opinion striking the buffer zone both points out various ways individuals are protected from harassment and intimidation in other areas of the law and is set in contrast to Justice Antonin Scalia’s partial dissent. McLachlan called Scalia’s contribution a “constitutional crybaby opinion,” saying it was essentially a re-hash of his failed arguments in the Colorado case.
“He’s still upset about the fact he lost last time and that was 14 years ago,” said McLachlan.
In that 2000 trial judges upheld Colorado’s law 6-3. It was the first measure of its kind and puts an 8-foot “bubble” around any person within 100 feet of any medical services facility. The Massachusetts law applied only to clinics with abortion services, an unequal protection the judges took issue with.
Ultimately McLachlan said the decision was less about reproductive rights and more about “what can and cannot be done in the public forum.”
In his opinion today, Roberts extolled the virtues of shared spaces like sidewalks as the last bastion for public discourse.
“[A]n individual confronted with an uncomfortable message can always turn the page, change the channel, or leave the Web site. Not so on public streets and sidewalks,” Roberts wrote, supporting the assertion with the First Amendment’s instruction “to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.”
“It’s bedrock constitutional law that public property is a public forum and that restrictions on the use of public property are restrictions which need to be closely examined,” agreed McLachlan.
The future of Colorado’s bubble bill appears secure. So does the powerful political role of the reproductive rights debate that triggered it.
“Today’s decision is not going to end the debate and it’s not going to diminish the debate, the debate will continue,” said McLachlan.
“The United States is closely divided over issues of reproductive freedom and reproductive rights. I happen to be of the opinion that it’s a constitutionally protected right, that a woman makes a choice, and that this decision does not in anyway diminish that.”
[Pro-choice voices in the public sphere. Image by Kate Ausburn]
