- The Washington Times - Sunday, January 12, 2014

Claims to free speech will clash with abortion rights Wednesday when the Supreme Court takes up a closely watched case on the constitutionality of “buffer zones” around abortion clinics.

At issue: whether state laws forcing abortion protesters to stay at least 35 feet away from the doors of clinics are prudent safety measures given the passions surrounding the issue or whether they constitute an illegal infringement on the free speech rights of protesters.

The Massachusetts case involves seven pro-life demonstrators, including several grandparents and a Catholic priest, seeking to overturn a 2007 state law permitting the establishment of 35-foot “public safety” zones around the entrances, exits and driveways of abortion clinics.

The zones are identified with signs and painted lines on the pavement. No one except for clinic patients, employees, emergency or state workers, or those with business at the clinic, can “enter or remain” in the zones.

Massachusetts Attorney General Martha Coakley, who is seeking the Democratic nomination for governor this year, and her colleagues say the state law is needed to ensure the safety of people who use and work at abortion clinics.

It “strikes the right balance between ensuring safe access to medical facilities and preserving freedom of expression,” Ms. Coakley said in a brief in support of the law.

The state is supported by the Planned Parenthood Federation of America and the Planned Parenthood League of Massachusetts, whose clinics in Boston, Worcester and Springfield are at the center of the case.

Before the 2007 law, criminal prosecutions, injunctions and other laws “all failed to keep the peace at PPLM facilities,” Planned Parenthood officials said in an amicus brief, citing instances in which pro-life activists threw literature into cars, videotaped and touched patients and blocked cars from accessing the clinics’ parking garages. The atmosphere at the Boston clinic now “has been much more orderly,” with “fewer confrontations” between protesters and people walking to the clinic, the group said.

But attorneys for Eleanor McCullen, 77, and her fellow protesters say the 2007 law is overbroad and serves to restrict only the speech of people who oppose abortion and want to present other options to pregnant women.

At the Springfield and Worcester clinics in particular, they said, they have little chance of reaching anyone who drives in because they must stay so far away from the entrances to those buildings’ parking lots.

Ms. McCullen, who recently spoke to an Associated Press reporter outside one of the clinics, said she sometimes can start conversations with people before they reach the yellow line restraining protesters.

But when a couple approached from the opposite way, Ms. McCullen could only call out to them. “There’s so much help available. Can we just talk for five minutes?” she said.

The man and woman showed no reaction and entered the clinic unimpeded.

“This is what we have to deal with,” Ms. McCullen told AP.

Other plaintiffs in the case include the Rev. Eric Cadin, counselors Mark Bashour and Nancy Clark, and retirees Jean Zarrella, Gregory A. Smith and Cyril Shea.

Lower courts weigh in

Those challenging the law were rebuffed by a federal district court and the 1st U.S. Circuit Court of Appeals. The lower courts found that the law addressed a legitimate public safety interest, did not discriminate against any one group, and left anti-abortion advocates with other ways to express their opinions, apparently clearing the legal bar for a restriction on unlimited free speech. The high court in June agreed to hear the case, one of the top cases related to abortion this term.

The first question for the justices is whether the 1st Circuit Court of Appeals erred “on its face and as applied to petitioners” when it upheld the 2007 law. A second question is whether the high court’s 2000 ruling in a buffer-zone case, Hill v. Colorado, permits enforcement of the Massachusetts law, as the 1st Circuit concluded.

Eugene Volokh, a legal blogger who teaches First Amendment law at UCLA, attacked the Massachusetts statute in his own brief to the high court, saying the same kind of buffer law could be used to restrict animal rights activists or labor members walking picket lines or trying to organize.

“There’s really a huge range of categories of speech, a huge range of political movements, that use this kind of attempt at face-to-face education, expression of opinion and the like,” Mr. Volokh told the website MassLive.com. “If this kind of restriction is upheld for anti-abortion speech, similar restrictions could be upheld for other kinds of speech.”

The high court’s treatment of the Hill ruling, which upheld a different kind of buffer-zone law, is of interest by itself.

In Hill, the law applied to all kinds of health care facilities, not just abortion clinics; applied to everyone, not just protesters; and was aimed at blocking unwanted conversations and physical contact. Consensual conversations were not blocked.

But the Hill decision has come under fire from free speech advocates. Constitutional lawyer Floyd Abrams recently wrote in The Wall Street Journal that the Hill decision could be “the most indefensible First Amendment ruling so far this century.”

Court watchers also note that the three dissenters in the Hill case — Justices Anthony M. Kennedy, Antonin Scalia and Clarence Thomas — remain on the court, and Chief Justice John G. Roberts Jr., and Justice Samuel Anthony Alito Jr. could provide two more votes in support of the protesters and against the Massachusetts law.

Justices Ruth Bader Ginsburg and Stephen G. Breyer were part of the 6-3 majority in the Hill decision.

This article is based in part on wire service reports.

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