Right to access in balance in Supreme Court

Given the skepticism some Supreme Court justices seemed to express last week about the need for buffer zones outside Massachusetts abortion clinics, you might be surprised to know that outside the Supreme Court building there is — yes — a buffer zone. Even the constitutional guardians of free speech sometimes want a little space between them and their adversaries.

Similar to the high court, abortion clinics are surrounded by a 35-foot zone into which critics are not allowed to tread. Foes of this policy characterize it as a barrier to their right to free speech. Its supporters will tell you that it is necessary to provide unfettered access to a legal procedure.

The Supreme Court heard oral arguments last Wednesday on the Massachusetts law creating buffer zones around abortion clinics, to restrict demonstrations and help assure patients’ access.

Brookline became a hot spot for abortion-clinic protests in the late 1980s. The antiabortion lobby maintains the protests were calm and peaceful, but some of the protesters were actively trying to shut down the clinics.

Ellen Zucker was then president of Massachusetts NOW, and one of the most distinguished lawyers in Boston. She was there every weekend, guiding women through the gauntlet. “This was hateful and violent,” Zucker said. “People have forgotten about it but I can’t forget it.’’

Typically, the abortion protesters would begin to show up at the clinics around 6 a.m. They would progress from chanting to jeering to waving signs, which often just happened to strike women trying to go in the clinics.

I think these protesters represented the extreme wing of opponents of abortion. I don’t question their sincerity of their beliefs. But the scene itself was revolting and intimidating, and Massachusetts lawmakers were right to discourage it by creating buffer zones. “There was a man who said he wanted to talk to women, but what he did was wield a huge sign and hit women,” Zucker recalled. “My experience as a young woman was that I would sometimes come back being spat upon with bruises on my back from having been hit.”

Brookline police often seemed flummoxed by the protests. In their desire to avoid taking sides, they mostly did nothing. The whole mess began to wind down in 1991 when then-Attorney General James Shannon secured a court injunction against obstructing access to clinics. Similar action was taken in New York and Atlanta. That injunction set the stage for the law currently before the Supreme Court.

Since that time abortion rights opponents have complained that they were stripped of their right to free speech, the claim they pressed last week at the high court in Washington. The problem is, this was not simply a matter of speaking one’s mind. This was about intimidating people from exercising their legal rights. No one has a right to that.

Zucker compares the abortion protests to the protests over gay marriage when the State House was debating the issue. The sides squared off on Beacon Street and yelled whatever they wanted. “When people were yelling at each other over marriage equality, that was fine,” said Zucker. “That was consistent with what our democracy is about.” Stopping women from exercising their legal rights, which is what happened outside clinics in the 1980s and ’90s, decades ago, was not fine.

Clearly, both sides have a valid constitutional argument. Balancing the right to free speech with the right to be free of intimidation may be the Supreme Court’s ultimate task.