BY KIMBERLY ATKINS

DOLAN MEDIA NEWSWIRES

WASHINGTON The constitution-
ality of several state and local laws
creating protester-free buffer zones
around entrances and patients at
abortion clinics is in question after
the U.S. Supreme Courts ruling on
June 26 striking down one of the
most expansive buffer zone laws in
the country.
In McCullen v. Coakley, No. 12-
1168, the court unanimously struck
down a Massachusetts law that creat-
ed a fixed 35-foot zone around
entrances of facilities where abor-
tions are performed. While the court
did not expressly overrule its 2000
decision in Hill v. Colorado, which
upheld the constitutionality of a less
restrictive buffer zone law, its analy-
sis in McCullen casts some doubt on
the validity of even more limited
buffer zone laws should they be chal-
lenged, experts say.
The court didnt expressly say
anything about Hill v. Colorado, said
Thomas C. Berg, professor at the
University of St. Thomas School of
Law in Minneapolis, who filed an
amicus brief on behalf of Democrats
for Life of America and Clergy for
Better Choices in support of the chal-
lengers to the law. On the other
hand, it doesnt expressly reaffirm
the Hill decision, and some parts of
the McCullen analysis, I think, could
give people grounds for attacking
laws like Hill.
But attorneys for proponents of
buffer zone laws said the courts
decision to keep Hill intact and
instead conduct a fact-specific
analysis in McCullen bodes well for
their clients. As long as the govern-
ment can prove the necessity of such
statutes and demonstrate that the
laws are narrowly tailored to
address specific problems, they
should survive constitutional scruti-
ny, lawyers said.
Its not necessarily all about
what the law requires or permits,
said Abigail K. Hemani, a partner at
Goodwin Procter in Boston. Its
also about what the need is for addi-
tion protection (for clinic patients)
in a particular city or a particular
state.
Hemani submitted an amicus
brief in the case on behalf of various
municipalities around the country,
including Boston and Springfield in
Massachusetts, Baltimore, Minnea -
polis and St. Paul in Minnesota, and
Ann Arbor in Michigan cities that
either enacted buffer zone laws or
expressed concerns about their abili-
ty to enact laws in the future.
Suppressing
sidewalk counseling
McCullen involves a buffer zone
law enacted in 2007 that provided:
No person shall knowingly enter or
remain on a public way or sidewalk
adjacent to a reproductive health care
facility within a 35-foot zone around
the facilitys entrance.
The law was the result of appeals
to legislators by police and other local
officials who argued that the states
previous statute, which created a
fixed 18-foot buffer zone around clin-
ic doors and an additional 6-foot
floating buffer around anyone enter-
ing or exiting clinics, was not effec-
tive at keeping protesters at bay.
The original law in 2000 had been
in response to a shooting at a clinic in
Brookline, Massachusetts, which left
two people dead, and was modeled
after the similar Colorado law at issue
in Hill.
A group of anti-abortion activists
who protest outside Planned Parent -
hood clinics in Boston, Worcester and
Springfield challenged the 2007 law,
Anti-abortion protester Eleanor McCullen, of Boston, stands at the painted edge of a buffer zone outside a Planned Parenthood
location in Boston. The Supreme Court has struck down a 35-foot protest-free zone outside abortion clinics in Massachusetts.
AP FILE PHOTO
8A July 3, 2014 The Journal Record journalrecord.com
LEGAL
Wellness programs
need legal work
Carefully and effectively implemented,
employee wellness programs can provide
many positive benefits. Benefits include
improved health of employees and reduced
medical-related and health insurance costs.
While wellness programs can take many
forms, they are categorized as either partic-
ipatory or health-contingent. A participato-
ry program does not require employees to
meet specific health benchmarks. It is avail-
able to all employees and does things like
providing full or partial reimbursement for
a gym membership. A health-contingent
program provides a reward for either com-
pleting a particular activity, such as taking
part in a weight management program, or
achieving a goal like a healthy weight.
Employers may reward employees by grant-
ing up to 30 percent of the total cost of
employee-only health insurance coverage
(accounting for both employer and employ-
ee contributions) for participation in a well-
ness program. Wellness programs that
include efforts for tobacco cessation may
permit a reward of up to 50 percent.
When designing a wellness program,
employers should be particularly mindful of
federal and state anti-discrimination laws.
If the program fails to treat similarly situat-
ed individuals equally, the wellness pro-
gram can potentially violate anti-discrimi-
nation laws, including the Health Insurance
Portability Accountability Act, or HIPAA;
Genetic Information Non-Discrimination
Act, or GINA; Americans with Disabilities
Act; Age Discrimination in Employment
Act; and Title VII of the Civil Rights Act of
1964. This is particularly true for health-
contingent plans. It should be noted that
Oklahomas prohibition against discrimina-
tion based on whether an employee smokes
specifically states that it doesnt prohibit
employers from offering wellness programs
that include smoking cessation programs.
The privacy of employee health informa-
tion is another important area to address.
While employers may gather health infor-
mation as part of a wellness program, em -
ployers must be mindful of privacy require-
ments under HIPAA as well as GINA.
For example, under GINA, employers
who utilize a health assessment as part of
their wellness programs must ensure that
employees understand that they are not
required to respond to requests for genetic
information. This would include questions
regarding family history for certain dis-
eases. Also under the act, employees will
not be penalized for choosing not to pro-
vide such information.
Diana Tate Vermeire is an of-counsel
attorney with the firm of GableGotwals. She
can be reached at (405) 235-5519 or
dvermeire@gablelaw.com.
See SHAKY, PAGE 9
Buffer zone laws on
shaky ground after ruling
Gavel
GAVEL
Diana Tate
VERMEIRE
t
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