Abortion Clinic Buffer Zone Divides Justices

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Deputy solicitor general Ian Gershengorn
Deputy solicitor general Ian Gershengorn

A Massachusetts law creating a 35-foot no-protest zone around abortion clinics appeared in jeopardy Wednesday as the U.S. Supreme Court questioned the sweep of its restriction on free speech.

With Justice Antonin Scalia leading the way, several justices voiced concern that the buffer zone was too large and too censorious to pass muster under the First Amendment. Under the 2007 law, only patients, staff, law enforcement and passersby can enter the zone while a clinic is open.

"This is a dead speech zone," said Scalia at one point, repeatedly asserting that the state law restricts not just noisy protests or harassment, but quiet efforts by individuals to persuade incoming clinic patients to consider alternatives to abortion. "It's a counseling case, not a protest case."

Predicting the outcome in McCullen v. Coakley is complicated by the fact that Chef Justice John Roberts Jr. asked no questions of either side—a rarity for him. In other recent First Amendment cases, Roberts has generally voted against government restriction of controversial free speech, but his silence Wednesday thrust him into the role of swing vote.

During the hour of arguments, justices Anthony Kennedy and Samuel Alito Jr. joined Scalia in asking skeptical questions about the buffer zone on First Amendment grounds.

Justices Ruth Bader Ginsburg, Sonia Sotomayor, Stephen Breyer and Elena Kagan seemed generally supportive of the law, though Kagan repeatedly wondered why a 35-foot zone was needed.

"That's pretty much this courtroom," Kagan said, pointing to the court chamber—even though the dimensions of the room are actually 82 by 91 feet, according to the court's web site.

Deputy Solicitor General Ian Gershengorn gently corrected Kagan, stating that because of the configuration of a clinic in Boston, the buffer zone there was more like 22 feet around the entrance, which he said was "not to the back of the courtroom" but akin to "an NBA 3-point zone."

Kagan's concern could result in a decision striking down the Massachusetts law as overbroad, but leaving smaller buffer zones—around polling places, ATMs and the like—in place.

Though the case drew more attention because of its connection to the never-ending debate over abortion, it was argued mainly on classic First Amendment grounds, with frequent mention of "strict scrutiny," "narrow tailoring," and "time, place and manner," hallmark phrases of decades of free speech precedents.

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    In other words, the usual old, fat, white guys want to make sure abortion is as hard to get as possible. As for that dirtbag Scalia - the sooner he dies, the better off this country will be.

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