The Associated Press

Justices Doubtful On Mass. Abortion Buffer Zone Law

Massachusetts Attorney General Martha Coakley listens at right as Liam Lowney, whose sister Shanon was murdered while working at Planned Parenthood in 1994, speaks to reporters outside the Supreme Court in Washington. (Evan Vucci/AP)

Massachusetts Attorney General Martha Coakley listens at right as Liam Lowney, whose sister Shanon was murdered while working at Planned Parenthood in 1994, speaks to reporters outside the Supreme Court in Washington. (Evan Vucci/AP)

WASHINGTON — A 35-foot protest-free zone outside Massachusetts abortion clinics appeared unlikely to survive Supreme Court review after liberal and conservative justices alike expressed misgivings about the law in arguments Wednesday.

Lawyers for both sides faced tough questions about the Massachusetts law aimed at ensuring patient access and safety at abortion clinics. Nationwide, clinics have dealt with threats and violence, including the shooting deaths of two employees in Boston-area clinics in 1994.

But the court questioned the size of the zone and asked whether the state could find less restrictive ways of preventing abortion opponents from impeding access to clinics without prohibiting peaceful, legal conversations.

“In speech cases, when you address one problem, you have a duty to protect speech that’s lawful,” Justice Anthony Kennedy said.

No one has been prosecuted under the 2007 law, which state officials and clinic employees have said has resulted in less congestion outside the clinics.

The court — which bars protests on the plaza outside its own building, but allows them on the public sidewalks — last considered abortion clinic protest zones in 2000, when it upheld a Colorado law.

It seemed possible that there could be more than the five votes needed to strike down the law after Justice Elena Kagan said she was “hung up” over the size of the zone.

But it was hard to tell whether the court might also upend its 2000 ruling in support of the Colorado zone, which has been criticized by free-speech advocates for unfairly restricting protesters’ rights.

That’s because Chief Justice John Roberts, normally an active questioner, did not ask a single question of any of the three lawyers who argued the case.

In this file photo, Frank Porter stands amid signs just beyond the 35-foot perimeter outside of the Planned Parenthood office on Commonwealth Ave in Boston. (Jesse Costa/WBUR)

In this file photo, Frank Porter stands amid signs just beyond the 35-foot perimeter outside of the Planned Parenthood office on Commonwealth Ave in Boston. (Jesse Costa/WBUR)

Painted semicircles outside Planned Parenthood clinics in Boston, Springfield and Worcester mark the spot beyond which abortion opponents are free to protest and try to dissuade women from ending their pregnancies. Inside the line, protesters and supporters alike risk arrest.

One woman who shows up most Tuesdays and Wednesdays outside the Boston facility, 77-year-old Eleanor McCullen, was at the court Wednesday, as was Marty Walz, the sponsor of the 2007 law in the Massachusetts House of Representatives and now the president and CEO of the Planned Parenthood League of Massachusetts.

McCullen said the law has made it harder, but not impossible, to persuade women to have their babies rather than abort.

The justices tried different, and at times confusing, comparisons in imagining the size of the zone. Kagan compared it to the dimensions of the courtroom, which is 82 feet by 91 feet.

In an exchange with Justice Stephen Breyer, lawyer Mark Rienzi started to make a point about being asked to stand back an additional 35 feet to make his argument on behalf of McCullen.

“I’d hear you,” Breyer cut in.

“You might hear me,” Rienzi said, “but I would suggest you’d receive it quite differently.”

McCullen and other protesters at those clinics sued the state over its 2007 law setting up the buffer zone. Federal courts in Massachusetts have upheld the law as a reasonable imposition on protesters’ rights.

Justice Ruth Bader Ginsburg signaled her agreement with the court rulings when she said there are no restrictions outside the zone. Walking through the zone takes just a few seconds, Ginsburg said. “There’s not much you’re going to be able to do to have a conversation that will persuade people in 7 to 10 seconds,” she said.

In 2000, the Supreme Court voted 6-3 to uphold a different buffer zone in Colorado in a decision that some free-speech advocates, who also support abortion rights, have criticized.

Since then, four of the six justices in the majority have retired, while the three dissenters — Justices Antonin Scalia, Clarence Thomas and Kennedy — remain on the court. Thomas was silent Wednesday, as is his custom during arguments, while Kennedy and Scalia made clear their problems with the Massachusetts law.

Scalia objected even to calling McCullen and the others who challenged the law protesters. “This is not a protest case. They don’t want to protest. They want to talk to women and talk them out of abortions,” he said.

Kennedy questioned whether other state and federal laws could not be used to accomplish the same goal of keeping access to the clinics open. “What’s wrong with the physical obstruction statutes as an answer to the problems Massachusetts is facing?” Kennedy said.

Two of the four newer justices since 2000 are Roberts and Justice Samuel Alito, who both have voted to restrict abortion rights. Roberts also has written strong opinions in favor of protesters’ rights, including members of a Kansas church who protest outside military funerals. Alito has been more willing to limit those rights.

But Alito appeared certain to vote to strike down the law, which he said treats people differently based on their point of view.

Assistant Attorney General Jennifer Grace Miller of Massachusetts failed to dissuade Alito that the issue was not what anyone was saying, but the state’s desire to keep traffic moving in front of the clinic.

Rienzi said the state could deal with congestion problems by asking people to move, “not dragging Mrs. McCullen off to prison.”

The case, McCullen v. Coakley, 12-1168, will be decided by late June.

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  • Bibliodrone

    I wonder how this debate factors into the “free speech zones” that were so prevalent in many cities during political and corporate events during the Presidential election season and the financial meltdown/Occupy period. Protestors were herded by police into fenced-off zones kept well away from the events and VIP’s they were trying to send their message to. That could certainly be seen as a greater limit of the exercise of free speech than a mere 35-foot buffer zone.

    Of course, the Free Speech zones were mainly deployed against “Left Wing” protest groups (except perhaps in the case of some Tea Party protests, I don’t know for sure). This current debate seems mostly to be about “defending the rights” of right-wing religionists. Though it’s interesting that the AFL-CIO also sees the buffer zone as a threat, so if this helps labor to get the word out, then the outcome isn’t all bad.

  • Neil Blanchard

    We have 150′ buffer zones around all polling places, where no political messages are allowed. Do we want to go down this road?

    • dust truck

      Threats and harassment your political opponents as they exercise their rights is not protected speech. Doesn’t matter if it’s polling places or abortion clinics. Do you really hate your fellow citizens that much?

      • Neil Blanchard

        You’ve got the wrong end of the stick. I’m in favor of keeping these buffer zones.

  • davinci5

    Interesting how the anti abortionists are always in favor of forcing people to have kids they might not be able to afford, but never provide a check to people to pay for the kid. How much does a kid cost? Says here the average cost is close to $100k

    That doesn’t include if you want to help the kid go to college. To me if you’re not willing to help out with a check you have no right to force someone to have a kid they might not be able to afford.

  • PCMacGuy49

    We are a backward thinking nation. Human beings ARE NOT a protected species, and breed irresponsibly. We are headed towards a dystopian future – praise the lord & pass the ammunition.

  • Bitter Cold

    There is no moral reason why those who have joined forces are entitled to expand the footprint of their own power in the name of democracy.

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