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Abortion clinic buffer zones’ fate in hands of high court

State law requires that protesters stay 35 feet from entrances to abortion clinics.

Wendy Maeda/Globe Staff

State law requires that protesters stay 35 feet from entrances to abortion clinics.

Exactly 35 feet from the entrance to the Planned Parenthood on Commonwealth Avenue, Eric Anthony paced, handing out antiabortion fliers to anyone who would take one.

Ruth Schiavone was there too, straddling a line painted on the ground, alongside several men praying the rosary.

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“If you’re the father of that child, save that child,” Schiavone pleaded with a young man heading to the door of the health clinic. The man did not stop.

Schiavone then appealed to a woman who was passing, “That’s a precious child . . . every life is valuable, protect it.”

Under a 2007 state law, Schiavone, Anthony, and their fellow protesters are kept 35 feet from the entrance to the Boston clinic and other abortion providers — a “buffer zone” meant to shield patients and staff from harassment while allowing the protesters to communicate their message.

‘I had one of the protesters literally standing inches from my face, screaming at me, at full volume.’

Marty Walz, CEO of Planned Parenthood League of Massachusetts who was a state legislator in 2007 and sponsored the law 
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But in a case closely watched by First Amendment scholars, the Supreme Court is set to hear a challenge to the law in January, the deepest scrutiny of an abortion clinic buffer zone in more than a decade.

And legal analysts say the court will have a specific task in reviewing the Massachusetts law: It will have to weigh free speech rights against the state’s ability to enact what it considers a public safety regulation, citing years of intimidation and harassment by protesters. Since the court agreed in June to hear the case, more than 30 groups have filed briefs for or against the law.

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“Someone should be able to go to a health care clinic, without being yelled at, screamed at, without being harassed,” said Attorney General Martha Coakley, whose office has defended the law in the courts.

Craig Smith and Tom Callahan protested along the buffer zone at the Boston Planned Parenthood clinic. Opponents of the zones say they are kept too far away from patients.

Wendy Maeda/Globe Staff

Craig Smith and Tom Callahan protested along the buffer zone at the Boston Planned Parenthood clinic. Opponents of the zones say they are kept too far away from patients.

But to Anthony, 64, a retired Marine who said he has demonstrated outside abortion clinics for more than 20 years “to help save lives,” the law unfairly targets peaceful demonstrators like him.

“The buffer zone is just a feel-good measure to violate my free speech rights,” he said in an interview outside the Boston clinic.

The country’s highest court does not say why it agrees to hear specific cases, but legal analysts say that this case combines hot-button issues in one question: abortion rights and free speech, and a state’s responsibility to balance the two.

“That’s the issue the court will be looking at, and obviously [the state’s] argument is, ‘we’re trying to limit as little speech as possible by homing in on a problem,’ ” said Martha F. Davis, a professor at Northeastern University School of Law who has advocated in support of similar buffer zone laws.

She added, “Here in Boston, it’s not an academic issue . . . You have a situation where there has been violence, and this has put an end to that.”

The law, which prohibits any type of demonstration for or against abortion within a 35-foot zone around driveways and entrances of abortion clinics, had been unsuccessfully challenged in federal court in Massachusetts several times. A federal appeals court in California struck down parts of a similar law there in 2011, however, finding that the law was not neutral because police officers were one-sided in their enforcement, citing protesters but not people who were defending the patients.

Supporters of the Massachusetts law, arguing there has been no evidence of lopsided enforcement here, say the law was based in part on restrictions that the courts have already approved, and that it was an evolution of past Massachusetts laws and practices that, until 2007, failed to address concerns of protesters rushing patients and staff, and blocking clinic entrances.

In 2000, for instance, the state approved a law that created a 6-foot “bubble” around patients once they reached 18 feet of a clinic entrance. That led protesters to block entrances, and line up across a patient’s path, said Marty Walz, CEO of Planned Parenthood League of Massachusetts, who was a state legislator in 2007 and sponsored the law.

Walz said the “bubble” zone law was difficult to enforce, and that protesters aggressively approached anyone who entered the zone. She said she visited the Boston clinic in 2007, only to be confronted and intimidated by a large protester.

“I had one of the protesters literally standing inches from my face, screaming at me, at full volume,” she said.

While supporters of the buffer law agree that shooting rampages, like the one carried out by John C. Salvi III at two Brookline clinics in 1994 that killed two women, are the extreme, they would regularly see aggressive protesters harassing patients, physically contacting them, and threatening them, blocking them from leaving their cars or entering the facilities.

Walz cited a history of violent protests dating back to the 1980s, when a group called Operation Rescue would strategically block entrances, or go into clinics and block rooms. Then, a group that called itself Operation Pink that supported abortion rights began to confront the protesters, which fueled public safety concerns. The 2007 law was meant to restrict any type of advocacy within the 35-foot buffer zone.

“It has dialed down the tension outside the door, and it feels less acrimonious,” said Teresa Roberts, 46, a nurse who worked at Planned Parenthood’s Brookline offices when Salvi went on the rampage in 1994. After a brief leave from Planned Parenthood, she returned to the agency in 2003.

“People are able to communicate, to express themselves, but it feels safer to staff, and, I believe, to patients,” she said. “There’s less of a sense of intimidation and tension, the yelling, following, stalking.”

“The law strikes the right balance, and everyone on the sidewalk, protesters, patients, staff, are safe,” Walz said, arguing that the zone is no different than buffer zones regulating conduct around schools, polling places, funerals, even the US Supreme Court.

Only two other states, Colorado and Montana, have statewide buffer zone laws for health clinics. In recent years, however, municipalities across the country have created fixed buffer zones similar to Massachusetts’ 2007 law. San Francisco, for instance, recently filed a court brief supporting the Massachusetts law, and Portland, Maine, recently created a 39-foot buffer zone.

Opponents of Massachusetts’ 2007 law, and the petitioners in the case, argue that the US Supreme Court review could decide the future of those laws as well, which they argue are far more intrusive than past laws because the buffer zone keeps them too far from patients, interfering with their ability to communicate with them.

“This is really a First Amendment case,” said Philip Moran, a Salem-based lawyer who is part of the team representing the five protesters in the case. “There’s a big difference between being able to speak to someone eye to eye, in a conversational tone, compared to speaking to someone 35 feet away with a bullhorn.”

He argued that, because the Massachusetts law applies only to abortion clinics, it targets specific speech. He also argued that, while protesters are restricted from the zone, Planned Parenthood employees are allowed to enter the zone, which they say is advocacy in favor of abortion.

The US Court of Appeals for the First Circuit, in upholding the buffer law in January, had ruled that the First Amendment does not guarantee an attentive audience, especially one “available at close range.” The court also determined that the protesters had appropriate access to patients, and that it was OK for the law to apply to abortion clinics only, because officials had identified a specific public safety concern.

“We have tried to balance an important concern over rights of expression, but most importantly, that right has to be balanced with another right — the concern for public safety, for public access,” Coakley said.

Outside the clinic on a recent Saturday, Schiavone, Anthony, and other protesters were at their usual places among the buffer zone’s edge.

“They kill babies at Planned Parenthood,” one man repeatedly yelled to anyone who walked into the clinic.

Schiavone and Anthony said they don’t engage in violence or intimidation. Anthony said he has been assaulted by the boyfriend of a woman he tried to approach.

He said he considers himself a peaceful demonstrator, not a protester, and argued that his speech should not be obstructed, based on the concerns of others.

“I’m not here to protest, I’m here to help save lives,” he said.

Milton J. Valencia can be reached at mvalencia@globe.com. Follow him on Twitter @miltonvalencia.

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