- The Washington Times - Wednesday, January 15, 2014

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.


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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.

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.”