WASHINGTON — A Massachusetts law that created a fixed 35-foot buffer zone around the entrances, exits and driveways of clinics where abortions are performed could be in peril — along with similar laws in states across the country.
During oral arguments before the U.S. Supreme Court on Wednesday, several justices expressed concern over the breadth of the law and questioned whether there were less restrictive means to protect patients from intimidation or violence and to ensure unencumbered access to reproductive health facilities.
“In speech cases, when you address one problem, you have a duty to protect speech that’s lawful,” said Justice Anthony M. Kennedy.
The case involves a buffer zone law enacted in 2007 by lawmakers who believed the previous law, which created a fixed 18-foot buffer zone around clinic doors and an additional 6-foot floating buffer around anyone entering or exiting clinics, was not effective enough.
Eleanor McCullen and several other anti-abortion activists argue the law violates the First Amendment on its face and as applied.
Mark L. Rienzi, senior counsel at the Becket Fund for Religious Liberty in Washington, D.C., argued on the activists’ behalf that “public sidewalks occupy a special position in First Amendment analysis” as a “place for free citizens to exchange information and ideas.”
“A statute that makes it illegal for Mrs. McCullen [to] engage in peaceful, consensual conversation on a public sidewalk for fear of obstruction and congestion is not narrowly tailored,” he said.
Justice Ruth Bader Ginsburg noted that there was “considerable history of disturbances and blocking the entrances” of clinics in the state.
“So the state is trying to say, ‘We want to make sure that the entrance is not blocked, and the only way we can do that is to have a rule that applies to everyone,’” Ginsburg said.
“The state is simply wrong about that fact,” Rienzi said, pointing to other state and federal laws on the books that could accomplish the goals of keeping potentially menacing or violent protesters at bay.
Massachusetts Assistant Attorney General Jennifer Grace Miller argued that the activists still have a variety of ways to exercise their speech rights.
“This is not a protest case,” interjected Justice Antonin Scalia. “These people don’t want to protest abortion. They want to talk to the women who are about to get abortions and try to talk them out of it.”
Breyer asked whether a statute could be written that differentiates violent protesters from those seeking to quietly influence patients.
“Well, surely you could have a law against screaming and shouting within 35 feet or protesting within 35 feet,” Scalia said. “Isn’t that more narrowly tailored?”
Miller argued that it would be difficult to write a statute that made distinctions based on the loudness or intensity of a protest. Buffer zone laws like the one at issue, she said, are constitutionally sound “as long as your protection is narrowly tailored to your interest.”
A decision is expected later this term in the case, McCullen v. Coakley, 12-1168.
Deputy U.S. Solicitor General Ian H. Gershegorn argued as amicus curiae in support of Massachusetts, stressing that the law “is simply a place regulation that does not ban speech, but instead effectively moves it from one part of a public forum to another.”