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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.
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.