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Justices say abortion clinics' buffer zones limit free speech

Eleanor McCullen of Boston, left, spent a chilly December day last year at a buffer zone near a Planned Parenthood site in Boston. The Supreme Court said Thursday such zones violates the First Amendment rights of antiabortion protesters.
Eleanor McCullen of Boston, left, spent a chilly December day last year at a buffer zone near a Planned Parenthood site in Boston. The Supreme Court said Thursday such zones violates the First Amendment rights of antiabortion protesters.
Published Jun. 27, 2014

WASHINGTON — The Supreme Court on Thursday unanimously struck down a Massachusetts law establishing a 35-foot buffer zone outside clinics that perform abortions, ruling that the practice violates the First Amendment.

Because the Massachusetts law encompasses public sidewalks, the court concluded the buffer zone makes it impossible to converse with women walking to abortion clinics.

"They impose serious burdens on petitioners' speech, depriving them of their two primary methods of communicating with arriving patients: close, personal conversations and distribution of literature," Chief Justice John Roberts Jr. wrote of the restrictions.

Florida and 10 other states filed briefs in opposition to the Massachusetts law because, they said, it wasn't "viewpoint neutral." While the other so-called buffer zones mandate distance between protesters and people en route to the locations, the abortion clinic arrangement singles out particular people, attorneys general for the states wrote.

The decision left undisturbed a 2000 Supreme Court decision that said governments could enact some restrictions. It upheld a Colorado law that established a 100-foot buffer zones outside all health care facilities — not just abortion clinics — and prohibited approaching another person within an 8-foot bubble to protest or counsel.

Roberts stressed the difference between vehement protesters and those who simply want to talk. The purpose of the latter group, which includes Eleanor McCullen and the six others who filed the suit, is to speak with women en route to abortion clinics and not to yell at them, Roberts wrote.

Though the ruling was relatively narrow, the public response was sharply divided.

"Let's be clear: Today's decision puts women and health care providers at greater risk," NARAL Pro-Choice America president Ilyse Hogue said. "We will work to make sure that legislatures in states are focused on making clinics safe for women free of harassment, intimidation and violent acts."

Religious groups, meanwhile, thanked the court for upholding their rights under the First Amendment.

"The bubble zone of government-imposed silence around abortion clinics has burst," declared the Rev. Frank Pavone, the national director of Priests for Life.

The court noted options that Massachusetts could use to keep women safe from potential violence when they go to abortion clinics. Roberts suggested that Massachusetts use traffic ordinances to keep activists away from driveways that adjoin abortion clinics and pass a state law similar to the federal Freedom of Access to Clinic Entrances Act of 1994.

"Given the vital First Amendment interests at stake, it is not enough for Massachusetts simply to say that other approaches have not worked," Roberts wrote.

White House spokesman Josh Earnest said in a statement: "While the court disagreed on this specific law, we are pleased that their ruling was narrow and that they recognized the possibility of alternative approaches, such as the federal law protecting a woman's right to access reproductive health clinics."

Justice Antonin Scalia argued that the Massachusetts law was targeted at the "suppression" of free speech for abortion opponents, not at maintaining the safety of women going to an abortion clinic. Justice Samuel Alito also wrote a concurring opinion in which he admonished the Massachusetts law as "viewpoint discrimination."

Roberts didn't go so far, which presumably helped him gain support of the liberal justices.

Although no one had ever been prosecuted for breaking the law, if an activist were to cross the 35-foot threshold, the penalty was up to 30 months in prison and up to a $5,000 fine. Many Massachusetts clinics had circles drawn around the premises to mark the 35-foot delineation. The 2007 law was the expansion of one enacted in 2000, which required 6 feet between protesters and people who were within 18 feet of a clinic.

Antiabortion protesters have blocked clinic doors and attempted to pull women away from clinics. The law was a way to prevent such harassment, Massachusetts Attorney General Martha Coakley wrote in her petition.

The Supreme Court upheld a Colorado law in 2001 that allots 100-foot zones between medical facilities and protesters. Comparable laws exist for polling places — campaign materials can't be distributed within 150 feet of voting locations — and the Supreme Court itself. Protesting is banned in the court and on its plaza.

"At each of the three Planned Parenthood clinics where petitioners attempt to counsel patients," Roberts wrote, "the zones carve out a significant portion of the adjacent public sidewalks, pushing petitioners well back from the clinics' entrances and driveways."

Buffer zones exist in numerous states — the newest, in New Hampshire, takes effect next month and specifies a 25-foot zone — and have often been controversial. Others also have made their way to the Supreme Court.

In 1994, the Supreme Court upheld a buffer zone for abortion clinics in Florida.

In 1997, the court upheld a 15-foot buffer zone around the entrances of abortion facilities in New York state, but struck a 15-foot floating zone.

The effect of the law across the country is still unclear, said Roger Evans, senior counsel for law and policy for the Planned Parenthood Federation of America. There is no other state with fixed buffer zones around abortion clinics, the chief justice said, citing briefs in the case, though a handful of localities have them. Planned Parenthood believes the number is closer to 10 ordinances and New Hampshire's, which has not gone into effect.

Information from the New York Times, Washington Post and POLITICO was used in this report.