In McCullen v. Coakley, decided June 26, 2014, the Supreme Court unanimously struck down a Massachusetts law that made it a crime to stand on a public sidewalk within 35 feet of an abortion clinic entrance. All nine justices agreed the statute violated the First Amendment. The majority held that while Massachusetts had a real interest in keeping clinic doorways clear, sealing off that much public space swept in far more speech than the state needed to restrict. The ruling remains the leading Supreme Court decision on how far governments can go in regulating speech near reproductive health facilities.
What the Massachusetts Law Did
The 2007 Massachusetts statute drew a 35-foot fixed zone around every entrance and driveway of any facility where abortions were performed. Inside that painted semicircle, it was a crime to knowingly stand on the public sidewalk or street for any expressive purpose. Narrow exceptions let employees, patients, and passersby through. Everyone else was excluded. The zone was roughly the width of a basketball court, and at some clinics it pushed speakers past the parking lot driveway, cutting them off from patients arriving by car.1Cornell Law School. McCullen v. Coakley
Who Brought the Challenge
Eleanor McCullen and her co-plaintiffs called themselves sidewalk counselors. Their method was quiet: approach women calmly, offer pamphlets about alternatives to abortion, try to start a conversation at normal speaking volume. They did not shout, block doorways, or carry graphic signs. The 35-foot zone made their approach impossible. You cannot hand someone a leaflet or begin a soft-spoken conversation from across a basketball court. They argued the law silenced them on public sidewalks, which have carried some of the strongest First Amendment protection in American law.2Justia U.S. Supreme Court Center. McCullen v. Coakley
Why the Court Struck the Law Down
Chief Justice Roberts, writing for the majority, first decided what level of First Amendment scrutiny applied. He concluded the law was content-neutral on its face: it did not target anti-abortion speech or any particular message, and a person could be arrested for standing in the zone regardless of what they wanted to say. That triggered intermediate scrutiny, which requires a speech restriction to be narrowly tailored to a significant government interest and to leave open adequate alternative ways to communicate.2Justia U.S. Supreme Court Center. McCullen v. Coakley
The Court accepted that Massachusetts had a significant interest in public safety and patient access. Narrow tailoring is where the law collapsed. Serious obstruction problems had been documented at only one clinic, in Boston, and only during Saturday morning hours. Chief Justice Roberts wrote that imposing a statewide 35-foot ban to solve a problem that arose “once a week in one city at one clinic” was not narrow tailoring in any meaningful sense.1Cornell Law School. McCullen v. Coakley
Less Restrictive Alternatives
The majority pointed to tools Massachusetts already had, or could readily use, to address obstruction without excluding peaceful speakers from public sidewalks:
- Enforce existing criminal laws against assault, disorderly conduct, and harassment when individuals actually threaten or impede patients.
- Enforce statutes already on the books that prohibit knowingly blocking access to buildings.
- Seek targeted court injunctions against specific repeat offenders instead of clearing an entire zone.
- Station officers at problem clinics during peak hours to manage crowds and remove the specific people causing obstruction.
Because each of these would address the access problem while leaving quiet counselors free to speak and hand out literature, the Court held the fixed zone burdened substantially more speech than necessary.2Justia U.S. Supreme Court Center. McCullen v. Coakley
The Concurrences
Four justices agreed the law had to fall but thought the majority was too generous in its reasoning. Justice Scalia, joined by Justices Kennedy and Thomas, argued the law was not content-neutral at all. In his view, the whole point of the buffer zone was to suppress anti-abortion counseling, and a law whose real-world burden falls almost entirely on one side of a debate should face strict scrutiny, which it would clearly fail. Scalia also argued the Court should have used the case to overrule Hill v. Colorado.1Cornell Law School. McCullen v. Coakley
Justice Alito wrote separately to make a sharper point. The statute exempted clinic employees and agents acting within the scope of their employment, so a clinic escort could stand inside the zone and guide a patient toward the door while a sidewalk counselor offering a different view could not. Alito called that viewpoint discrimination, which is the most constitutionally suspect form of speech regulation.2Justia U.S. Supreme Court Center. McCullen v. Coakley
The gap between the majority and the concurrences matters. The majority left open the possibility that a more carefully designed buffer zone could survive. The concurrences would make that much harder by treating any zone that disproportionately affects anti-abortion speakers as presumptively unconstitutional.
How McCullen Differs From Hill v. Colorado
In 2000, the Supreme Court upheld a Colorado buffer zone in Hill v. Colorado. The mechanics of the two laws explain why one survived and the other did not. Colorado’s law created a floating bubble: within 100 feet of a healthcare facility entrance, a person could not knowingly approach within 8 feet of another person to leaflet, display a sign, or engage in oral protest or counseling without that person’s consent. The bubble moved with the listener. A counselor could still stand on the sidewalk, still hold a sign, still speak.
Massachusetts drew a fixed 35-foot circle and banned virtually everyone from stepping inside it. A counselor could not stand and wait to be approached, could not hold a sign in the zone, could not be there at all. The McCullen majority found this decisive: the floating zone still allowed communication at a normal conversational distance, while the fixed zone made personal conversation impossible by keeping speakers too far away to initiate contact.2Justia U.S. Supreme Court Center. McCullen v. Coakley
Hill remains technically good law. Its footing is shakier than it was. Justice Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization (2022) described Hill as having “distorted” First Amendment doctrine, and Justice Thomas has called for it to be overruled outright. Whether the Court takes that step is an open question, and a pending challenge to clinic access ordinances out of Englewood, New Jersey, may force it.
What Replaced the Massachusetts Law
Massachusetts moved quickly to pass a replacement built around the alternatives the Court identified. Instead of a fixed exclusion zone, the new statute lets police issue an order requiring a specific individual to move back up to 25 feet from a clinic entrance or driveway, but only after that person has substantially impeded access. Presence alone does not trigger the restriction; conduct does. Failure to comply can result in misdemeanor charges, with a first offense carrying a fine of up to $500 and up to three months in jail. The conduct-based design tracks exactly the kind of narrow tailoring McCullen said the state should have used from the start.
The Federal FACE Act
Separate from any state buffer zone, the Freedom of Access to Clinic Entrances Act of 1994 makes it a federal crime to use force, threats of force, or physical obstruction to interfere with anyone obtaining or providing reproductive health services. It defines physical obstruction as making it unreasonably difficult or impossible to enter or leave a facility.3Office of the Law Revision Counsel. 18 US Code 248 – Freedom of Access to Clinic Entrances
Penalties scale with the conduct. Nonviolent physical obstruction can bring up to six months in prison and a $10,000 fine on a first offense, with higher exposure for repeat offenders. Force carries steeper terms, up to ten years if someone is physically injured and up to life if a death results. Victims can also sue for damages and injunctive relief, and state attorneys general and the U.S. Attorney General can bring civil enforcement actions.4govinfo.gov. 18 US Code 248 – Freedom of Access to Clinic Entrances5U.S. Department of Justice. Freedom of Access to Clinic Entrances and Places of Religious Worship
The FACE Act does not depend on any buffer zone. It targets specific threatening or obstructive conduct wherever it happens, which is the same narrowly tailored approach McCullen encouraged. It also does not preempt state or local laws, so it functions as a federal floor.3Office of the Law Revision Counsel. 18 US Code 248 – Freedom of Access to Clinic Entrances
How the Ruling Has Played Out Elsewhere
Every jurisdiction with a clinic buffer zone had to measure its ordinance against McCullen‘s narrow-tailoring standard. Pittsburgh’s ordinance shows how the analysis works in practice. The city had a 2005 law creating a 15-foot fixed zone around healthcare facility entrances. When sidewalk counselors challenged it, the Third Circuit ruled in 2016 that the challenge could proceed under McCullen and sent the case back for a full factual examination of whether the smaller zone burdened more speech than necessary. The court did not decide the ordinance’s ultimate fate; it held that the question required exactly the fact-intensive analysis McCullen demands.6Justia Case Law. Bruni v. City of Pittsburgh
The pattern is now familiar. Thirty-five feet is clearly too much. Smaller zones survive initial challenges but face serious scrutiny on remand, and a city that draws a zone based on what feels like enough distance, rather than evidence of actual obstruction, invites the same result Massachusetts got.
McCullen After Dobbs
The 2022 Dobbs decision has made McCullen more relevant in some places and less in others. States that banned abortion after Dobbs have fewer clinics to protest outside. States that expanded access or became regional destinations for traveling patients have seen intensified encounters, and local governments have responded with new ordinances. Carbondale, Illinois, enacted a buffer zone in direct response to Dobbs, creating a floating 8-foot bubble within 100 feet of a medical facility, modeled on the Hill framework rather than the fixed-zone approach McCullen struck down.
Whether these newer ordinances hold up turns on two unresolved questions: whether McCullen‘s intermediate-scrutiny framework still controls, and whether the Supreme Court is prepared to overrule Hill v. Colorado. If the Court takes that step, even floating-bubble zones become constitutionally vulnerable.
For now, McCullen sets the floor. Governments can regulate obstructive conduct at clinic entrances. They cannot clear public sidewalks of peaceful speakers to make access easier. How small a fixed zone must be to survive, and whether any fixed zone can, remains open and actively litigated.