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Abortion Clinic Buffer Zone Faces Court Challenge05:54

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The U.S. Supreme Court hears oral argument tomorrow in a challenge to a Massachusetts law that bars protest within 35 feet of clinics that provide abortion services. From the Here & Now Contributors Network, Fred Bever of WBUR reports that the decision could change the way business is conducted at abortion clinics around the country.

The ritual here at Planned Parenthood in Boston has gone on for some seven years now. More than a dozen people gather to pray, bundled against the cold and rain. They are careful to stay just outside a yellow line that marks the perimeter of a state-sanctioned buffer zone around the abortion clinic. Drawn in a 35-foot radius from the front entrance and stretching past the curb in some places, it looks like the three-point line on a basketball court.

If we could we get up closer, we could be loving to them and show them the help that we have for them.

Evelyn Musto

Some people carry signs that read, "Birth - It's your first freedom." One hoists a carved cross fixed to the top of a tall pole. Ruth Schiavone, who lives in the Boston suburb of Norwood, clutches a fan of pamphlets that illustrate the development of a fetus and provide information for women who want to consider alternatives to abortion. Schiavone says she spends most Saturdays here. "They don't know they have another choice," she says.

Schiavone says the buffer zone unfairly and unconstitutionally gives an advantage to clinic workers who support abortion rights. But that hasn't stopped her from convincing some women she met here to take a pregnancy to term. "Last Christmas I was invited to a birthday party for a 2-year-old child, whose mother had turned around here," she says.

That would seem to support arguments that buffer zones allow for effective speech. But Schiavone and a friend, Evelyn Musto of Brockton, Mass., say that before the zone was established in 2007, their work was much easier. As several clients head through the zone to and from the clinic, the two women are met with silence.

"It really stops our conversation with the girls," Schiavone says. "We're limited in our free speech."

Musto adds, "If we could we get up closer, we could be loving to them and show them the help that we have for them, you know?"

We’re strong supporters of the First Amendment ... but they don’t have the right to blockade our health centers.

Marty Walz

Martha "Marty" Walz, CEO of Planned Parenthood League of Massachusetts, was a state lawmaker in 2007 and helped write the buffer zone legislation after an attempt to bring order to chaotic and sometimes violent clinic protests failed.

"We're strong supporters of the First Amendment and believe that people do have the right to speak out on the public sidewalk, but they don't have the right to blockade our health centers," she says.

Before the law, Walz says the scene could be frightening.

"I was standing in the doorway of the health center and I had someone inches away from my face, screaming at me at full volume. It was scary," she says. "And that's why the current law works. There are groups of people outside of our health centers, but because they are not huddled in the doorway creating the physical confrontations. The current law works to maintain public safety."

In McCullen v. Coakley, seven Massachusetts abortion foes are asking the U.S. Supreme Court to throw out a lower court decision that upholds the buffer zone. They say there's a big and constitutionally meaningful difference between shouting across an expanse of pavement, and a close-up conversation with a woman who is considering an abortion.

Their case will be argued by Mark Rienzi, a professor at Catholic University of America's law school, who notes that the punishment for violating Massachusetts' buffer zone can include two and a half years in jail.

A sign posted on the wall of Planned Parenthood informs people about the 35-foot buffer zone law (click to enlarge). (Jesse Costa/WBUR)
A sign posted on the wall of Planned Parenthood informs people about the 35-foot buffer zone law (click to enlarge). (Jesse Costa/WBUR)

"There's something seriously wrong with the sidewalks in Boston, Massachusetts, of all places being closed to peaceful speech," Rienzi says. "The government's just not allowed to jail citizens for peaceful conversations on public sidewalks. They just can't."

The Supreme Court hasn't taken up a similar case since 2000, before conservative Justice John Roberts was appointed. And dozens of groups have filed friend-of-the-court briefs. States and municipalities that have their own buffer zone laws are weighing in too.

The delicate balance between free speech, abortion rights and public safety has put the Bill-of-Rights defenders at the American Civil Liberties Union in a constitutional bind.

"The answer to the question of whether the Massachusetts law is constitutional is not a 'yes' or a 'no,' but it's a bit of a maybe," says Steven Shapiro, the ACLU's national legal director. He says as long as protesters do get a chance to speak to people entering or exiting a clinic, even from at least 35 feet away, their free speech rights are protected.

But Shapiro says there's an on-the-ground problem with the way the Massachusetts' law is written: at some clinic locations the layout of the buffer zones, combined with streets or parking lots, increases the effective size of the zone so much that it prevents effective communication. That can leave protesters vainly holding up signs, while cars drive on by.

"The mistake that the lower court made in this case is they assumed that holding up a sign was the First Amendment equivalent of attempting to engage somebody in conversation or handing them a leaflet, and we don't think those things are fungible," he says.

Shapiro and other observers say it's possible the high court could throw out the use of buffer zones altogether — a precedent-setting move. More likely, though, they say the court will tailor its opinion to specifics of the Massachusetts dispute, which may or may not force governments to revisit the way they handle free speech and abortion.

Correction: An earlier version of this report incorrectly identified Marty Walz's position at the Planned Parenthood League of Massachusetts; she's the CEO. We regret the error.

This segment aired on January 14, 2014.

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