Justices question Mass. abortion clinic buffer zones

Arguments focus on safety and free speech

WASHINGTON — In a case watched closely across the country, justices of the US Supreme Court expressed skepticism Wednesday about a Massachusetts law that creates buffer zones outside abortion clinics to restrict demonstrations, questioning whether it goes too far and infringes on the free speech of activists who approach women seeking abortions.

The 2007 state law aims to keep protesters at least 35 feet from the entrances of abortion clinics to quell aggressive demonstrations that have congested sidewalks and prevented people from entering the clinics.

But some justices raised questions about the size of the zone and asked whether the state could find another way to address safety concerns and prevent abortion opponents from impeding access to clinics without limiting their free speech.

“In speech cases, where you address one problem, you have a duty to protect speech that is lawful,” said Justice Anthony Kennedy, who is known for his focus on First Amendment interests.

The Massachusetts law is the only state law of its kind in the country, though municipalities including San Francisco and Portland, Maine, have passed similar laws in recent years. The high court’s decision could affect those laws and other buffer zones across the nation, amid ongoing concerns about public safety. John Salvi shot and killed two people at a Planned Parenthood clinic in Brookline on Dec. 30, 1994, and supporters of the buffer zone law say clients and staff at abortion clinics have regularly encountered intimidating protests since then.

The court, which was also asked to reexamine a 2000 decision that upheld a different kind of buffer zone in Colorado, could uphold the Massachusetts law, strike it down, or send it back to the federal appellate court system for further review.

Legal observers and those who follow the work of the Supreme Court point out that the makeup of the court has changed since the 6-to-3 vote in the Colorado case. The three dissenters on that decision — Kennedy, Antonin Scalia, and Clarence Thomas — remain on the court. Meanwhile, Chief Justice William H. Rehnquist and Justice Sandra Day O’Connor, who were in the majority, have been replaced by Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., who could shift the vote.

Outside the court Wednesday, supporters of the Massachusetts law said it was based on a history of public safety concerns and is modeled after buffer zones that have already been approved by the courts.

“This particular statute has struck the appropriate and constitutional balance,” said Attorney General Martha Coakley. She added that while demonstrators have the right to free speech, patients have the right to enter abortion clinics without intimidation. “It seems to me the 35 feet is a perfectly reasonable way to balance what are the interests here that we’re trying to protect,” she said.

Liam Lowney, whose sister was shot to death at a clinic, hopes the court upholds the law.Evan Vucci/AP

Among those outside the court was Eleanor McCullen, the lead petitioner in the case, who is a 77-year-old grandmother from Massachusetts. She said that she has helped scores of women at the Boston clinic decide against abortion.

She said the buffer zone has interfered with her rights to reach out to as many people as she could before the law was enacted.

“I’m impeded from my message, my message of love and my message of help,” she said, “and one person I’ve lost, one mother, and one father, is one too many.”

Liam Lowney, whose sister Shannon was killed by Salvi while she was working at an abortion clinic in Brookline, attended Wednesday’s arguments to support the work that people like his sister do at the clinics, and the need for protections.

“I’m hopeful the US Supreme Court will find the law is working,” he said.

The 2007 buffer zone replaced a 2000 state law that kept protesters from approaching within 6 feet of a person who was within 18 feet of an abortion clinic. The 2000 law was similar to the Colorado law that the Supreme Court upheld in 2000.

Police in Massachusetts complained that the 2000 law was difficult to enforce, with protesters and counterprotesters congesting sidewalks in front of clinics, effectively blocking people from getting out of cars or entering the facilities. Police who testified at state legislative hearings for the 2007 law said that the previous law was akin to a referee watching players’ feet, unable to determine who was who.

Mark Rienzi, an attorney for activists who oppose the law, argued that the state has no authority to restrict free speech on a public sidewalk and said the state should use existing laws prohibiting harassment and obstruction to keep order. No one has been prosecuted for any crimes related to obstruction since at least 1997, he said.

Jennifer Miller, the assistant state attorney general who argued the case, said that police had difficulty enforcing the old law, and that the 35-foot buffer zone effectively eliminated advocacy by supporters and opponents of abortion.

Justice Ruth Bader Ginsburg, who was in the majority that upheld the Colorado law, noted the past violence in Massachusetts and the state’s attempts to keep demonstrators from clinic entrances, saying: “It has a history— it was a considerable history — of disturbances. . . . After the disturbance occurs, it’s too late.”

“The state is trying to say, ‘We want to make sure that the entrance is not blocked, and the only way we can do that is to have a rule that applies to everyone,’ ” she said.

Eleanor McCullen says the state law impedes her “from my message, my message of love.”Saul LOEB/AFP/Getty Images

Justice Stephen Breyer questioned whether the court should second-guess the state’s ability to identify a remedy to public safety concerns.

“When doesn’t it become just up to them?” Breyer asked. “We’re not legislators. We don’t know the situation in Massachusetts.”

Several justices seemed concerned with a provision of the law that allows employees of abortion clinics to escort patients past demonstrators and into the buffer zone.

“How can a statute like that be viewpoint neutral?” Alito asked, questioning whether the employees were providing advocacy inside buffer zones.

Miller said that aspect of the law allows a clinic employee to do his or her job and does not allow for any type of advocacy.

“The statute is not focused on that person’s speech; the statute is focused on what they’re doing in the buffer zone,” she said.

Scalia also took issue with Miller repeatedly referring to the demonstrators as protesters, saying some of them want to quietly counsel women.

“This is not a protest case. . . . They want to talk to the women who are about to get abortions,” he said. “It’s a counseling case; it’s not a protest case.”

Miller responded, “Your Honor, I would say it’s a congestion case.”