Justices’ questions appear unsympathetic to abortion clinic ‘buffer zone’ law

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.


SEE ALSO: House Republicans ban D.C. from using tax money to fund abortions


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 government-approved zones for animal rights advocates at slaughterhouses or restricted picket areas during labor strikes.

** FILE ** Supreme Court Justice Samuel A. Alito Jr.

Enlarge Photo

** FILE ** Supreme Court Justice Samuel A. Alito Jr. more >

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.

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About the Author
Cheryl Wetzstein

Cheryl Wetzstein

Cheryl Wetzstein covers family and social issues as a national reporter for The Washington Times. She has been a reporter for three decades, working in New York City and Washington, D.C. Since joining The Washington Times in 1985, she has been a features writer, environmental and consumer affairs reporter, and assistant business editor.

Beginning in 1994, Mrs. Wetzstein worked exclusively ...

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