Jus­tices ques­tion abor­tion-clinic buf­fer zones

The Washington Times Weekly - - National - BY CH­ERYL WETZSTEIN

The Supreme Court’s jus­tices on Wed­nes­day chal­lenged at­tor­neys on the his­tory, im­pact and mo­ti­va­tion for the 2007 Mas­sachusetts pub­lic safety law that es­tab­lished clearly marked, 35-foot buf­fer zones around en­trances and drive­ways of abor­tion clin­ics.

No one is per­mit­ted in the zones ex­cept peo­ple with busi­ness at the clin­ics or those who are pass­ing by. Vi­o­la­tors face ar­rest and crim­i­nal charges.

Jus­tice Ruth Bader Gins­burg said there was a “con­sid­er­able his­tory of dis­tur­bances” at abor­tion clin­ics, and no one can tell “who will be well-be­haved and who will be dis­rup­tive.” Be­cause states can’t screen peo­ple, “the only way” to en­sure ac­cess to abor­tion clin­ics “is to have a rule that ap­plies to ev­ery­one,” she said.

Other jus­tices homed in on the free speech is­sues dur­ing the hour­long oral ar­gu­ments. Jus­tice An­tonin Scalia de­scribed the mat­ter as more of a “coun­sel­ing case” than a “protest case.” Jus­tice Sa­muel An­thony Al­ito Jr. raised the is­sue of dis­crim­i­na­tion based on po­lit­i­cal views, not­ing that a per­son in the buf­fer zone who says the clinic is safe is free to ex­press him­self, but some­one in the buf­fer zone who says the clinic is not safe could be pe­nal­ized.

Sev­eral jus­tices ques­tioned the size of the buf­fer zone and the prece­dent such zones could set for pub­lic protests or po­lit­i­cal gath­er­ings. The law’s crit­ics warn that the buf­fer con­cept could be used for gov­ern­men­tap­proved zones for an­i­mal rights ad­vo­cates at slaugh­ter­houses or re­stricted picket ar­eas dur­ing la­bor strikes.

Seven pro-life ac­tivists, led by Eleanor McCullen, have sued to over­turn the law, say­ing it in­fringes on their con­sti­tu­tional rights to be on pub­lic side­walks and peace­fully try to dis­suade women from en­ter­ing the abor­tion clin­ics.

Jen­nifer Grace Miller, as­sis­tant at­tor­ney gen­eral for the Depart­ment of Jus­tice in Bos­ton, told the court that a 35-foot buf­fer zone was rea­son­able to limit con­ges­tion. Ms. Miller spoke on be­half of Mas­sachusetts At­tor­ney Gen­eral Martha Coak­ley and other state of­fi­cials, who say the zones are needed to keep clinic clients from ver­bal and phys­i­cal ha­rass­ment.

Deputy So­lic­i­tor Gen­eral Ian H. Ger­shen­gorn, rep­re­sent­ing the Obama ad­min­is­tra­tion, said courts have up­held buf­fer zones around events such as po­lit­i­cal con­ven­tions, cir­cuses and fu­ner­als.

If peo­ple could “de­feat those buf­fer zones by sim­ply say­ing, ‘I would like to have a quiet con­ver­sa­tion with the del­e­gates as they go into the po­lit­i­cal con­ven­tion,’” that would “wipe out” the kinds of buf­fer zones that courts have said are needed, Mr. Ger­shen­gorn said.

Lawyer Mark L. Rienzi, who rep­re­sented the pro-life ac­tivists, told the court that the buf­fer crim­i­nal­izes quiet, con­sen­sual con­ver­sa­tions at abor­tion clin­ics and re­stricts only speech that is crit­i­cal of abor­tion.

In an ex­change with Jus­tice Stephen G. Breyer, Mr. Rienzi sug­gested that he would have dif­fi­culty mak­ing his ar­gu­ment if he had to stand back an ad­di­tional 35 feet from the bench. “I’d hear you,” Jus­tice Breyer cut in. “You might hear me,” Mr. Rienzi said, “but I would sug­gest you’d re­ceive it quite dif­fer­ently.”

A rul­ing in McCullen v. Coak­ley, one of the big­gest abor­tion cases of the court’s term, should be an­nounced by sum­mer. The 1st U.S. Cir­cuit Court of Ap­peals has up­held the law twice, in 2009 and in 2013.

Court watch­ers said the ques­tions in­di­cate that the high court may have a ma­jor­ity to up­end the law or nar­row it in some way on con­sti­tu­tional grounds.

Jus­tice Scalia, Jus­tice An­thony M. Kennedy and Jus­tice Clarence Thomas were viewed as likely to deem the law over­broad, given their dis­sent in the high court’s abor­tion-ac­cess case in 2000. Mr. Al­ito’s ques­tions also ap­peared un­sym­pa­thetic to the law.

If Chief Jus­tice John G. Roberts Jr. joined those four in a ma­jor­ity, “buf­fer zones that are not con­fined ex­plic­itly to stop­ping vi­o­lence or ac­tual phys­i­cal ob­struc­tion may well be doomed al­to­gether,” court watcher Lyle Den­nis­ton wrote at SCO­TUS­blog.

Mr. Roberts and Mr. Thomas asked no ques­tions; lib­eral Jus­tices Breyer, Elena Ka­gan and So­nia So­tomayor ac­tively par­tic­i­pated.

In 2000, the Supreme Court voted 6-3 to up­hold a buf­fer zone in Colorado in a de­ci­sion that some free speech ad­vo­cates, who also sup­port abor­tion rights, have crit­i­cized. But four of the six jus­tices in the ma­jor­ity on that de­ci­sion are no longer on the court.

Out­side the court­house af­ter the hear­ing, Ms. Coak­ley said the 2007 law strikes “a per­fectly rea­son­able” bal­ance and has kept the pub­lic peace. Liam Lowney, whose sis­ter Shan­non was killed at a Mas­sachusetts clinic in 1994, said he hoped the court would up­hold the law.

Eleanor McCullen, 77, said she of­fers love, hope and tan­gi­ble as­sis­tance to preg­nant women and, be­fore 2007, she helped dozens of women change their minds about abort­ing their preg­nan­cies.

But since the 2007 law was en­acted, she has found her­self greatly re­stricted from in­ter­act­ing with women en­ter­ing the clin­ics. A yel­low line is painted on the pave­ment to mark the buf­fer zone, and even if she is talk­ing with some­one, she said, “I stop at the yel­low line.”


Alan Hoyle, of Lin­col­nton, N.C., stands Wed­nes­day out­side the Supreme Court, where the court heard ar­gu­ments on a state of Mas­sachusetts law set­ting a 35-foot protest-free zone out­side abor­tion clin­ics. Pro-choice demon­stra­tors watch as a group of anti-abor­tion demon­stra­tors pray (be­low) on the steps of the Supreme Court. Pro-life ad­vo­cates are ask­ing for the Mas­sachusetts law to be over­turned.

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