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.

"Public sidewalks occupy a special position in First Amendment analysis," said Mark Rienzi, lawyer for Massachusetts abortion opponents who challenged the law.

Rienzi, a professor at Catholic University of America Columbus School of Law, said the buffer zone singles out anti-abortion speech for restriction, whether or not there is any real threat of obstruction at clinic entrances. "A statute that makes it illegal … to engage in peaceful, consensual conversation on a public sidewalk for fear of obstruction and congestion is not narrowly tailored," he told the court.

The use of other laws and injunctions barring obstruction would be adequate to take care of disruptions, Rienzi said, without imposing the broad buffer zone.

Sotomayor, Kagan and Breyer suggested that when governments find that those alternatives don't work, the First Amendment permits them to impose reasonable buffer zones. Rienzi replied, "Any law like that runs into a big First Amendment problem of even eliminating peaceful consensual conversation that doesn't disrupt anything."

Breyer repeatedly said that if a government holds hearings and determined in good faith that alternatives are ineffective, a buffer zone would be justified under the First Amendment.

"We're not legislators," Breyer said. "We can insist on a reasonable record. But how can we do more than that?"

Assistant Massachusetts Attorney General Jennifer Miller said to the court that the legislature had established that record, finding that previous, narrower measures did not stop harassment, obstruction or "swearing and screaming" outside clinics. "Experience showed that there had to be a certain amount of space around the facilities," she said.

But Kennedy said, "When you address one problem, you have a duty to protect speech that's lawful." It would be difficult, Kennedy said, to write a decision in the case finding that "there's no free speech right to quietly converse on an issue of public importance."

Gershengorn, arguing for the U.S. Department of Justice in support of Massachusetts, said, "The Massachusetts statute here is simply a 'place' regulation that does not ban speech, but instead effectively moves it from one part of a public forum to another."

Scalia objected that from a distance of 35 feet from an entrance, anti-abortion activists would not be able to determine which pedestrians are actually entering the clinic. Gershengorn replied that in fact, the protesters "get quite good at identifying who is going and is not going into the clinic." Besides, he said, the buffer zone only restricts access for "the last four or five seconds before they go in."

Showing his skepticism about the Massachusetts law, Alito repeatedly asked Gershengorn "what needs to be established" before such a statute can be found constitutional.

"You would need a lengthy history of serious congestion and other problems," Gershengorn said, "and some sort of showing that the alternatives weren't working." Massachusetts, he said, had fulfilled that requirement.

Justice Clarence Thomas also asked no questions, as is his custom, but he voted against an abortion buffer zone in the 2000 case Hill v. Colorado, the last time the court ruled on the issue. A 6-3 majority upheld the Colorado buffer zone, but four of the justices in the majority—William Rehnquist, John Paul Stevens, Sandra Day O'Connor and David Souter—are no longer on the court.

Wednesday's argument raised the likelihood that the newly composed court will rule differently, even if it does not completely overturn Hill.

Contact Tony Mauro at tmauro@alm.com. On Twitter: @Tonymauro.

What's being said

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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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