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Supreme Court Considers Legality Of Abortion Clinic Buffer Zones

Supreme Court Considers Legality Of Abortion Clinic Buffer Zones

Anti-abortion protesters assemble outside the Planned Parenthood clinic in Boston on Dec. 7. The protesters are legally behind the 35-foot buffer zone, which is marked by a painted yellow line on the sidewalk.
Wendy Maeda / Boston Globe via Getty Images
Boston Globe via Getty Images
Anti-abortion protesters assemble outside the Planned Parenthood clinic in Boston on Dec. 7. The protesters are legally behind the 35-foot buffer zone, which is marked by a painted yellow line on the sidewalk.

The U.S. Supreme Court hears arguments Wednesday in a case testing the constitutionality of buffer zones at abortion clinics.

Fourteen years ago, the court upheld Colorado's 8-foot "floating" buffer zones around individuals to protect patients and staff entering and exiting these clinics. Since then, buffer zones have prevented demonstrators from closely approaching patients and staff without permission.

But the issue is back before a different and more conservative Supreme Court.

The Massachusetts law prohibits anyone from standing within 35 feet of the entrance to a reproductive health care facility where abortions take place. That distance, the length of a school bus, takes the average person about 7 seconds to walk. And, according to the law, anyone can walk through it — as long as their purpose is to enter the facility or cross to the other side of the zone.

'Just Talk A Minute'

The zone is marked by a painted yellow line, and anybody who remains standing in it is asked to move outside the line.

Lead plaintiff Eleanor McCullen is a member of the anti-abortion group Operation Rescue and a part-time prison chaplain. She looks like a typical cheery grandmother, and has been standing outside a Planned Parenthood clinic in Boston every Tuesday and Wednesday for the past 13 years.

As McCullen describes it, she asks women to "just talk a minute before you rush in. You rush in so quickly, and then you come out in tears." She tells women: "There's another option other than taking the child, the small boy or girl, from the womb." And she says she and other Operation Rescue volunteers have provided housing, medical help, even baby showers to help women who decide not to have an abortion. On her refrigerator, she keeps photos of all of the babies she says she has saved.

But McCullen says the buffer zone violates her First Amendment rights and prevents her from communicating with complete effectiveness. "It's America," she says. "I should be able to walk and talk gently, lovingly, anywhere with anybody."

Inside the Planned Parenthood Clinic in Boston, officials say 90 percent of their work is primary care, contraception, cancer screening and gynecological services — not abortion. But because of the abortions that are performed, the clinic has considerable security.

And in the building's atrium stands a stark reminder of the darkest days for Planned Parenthood in Boston: a plaque dedicated to two clinic personnel killed by a gunman, who also wounded five others, in 1994.

Public Sidewalks And Polling Places

The Planned Parenthood League of Massachusetts is led by Marty Walz, a former member of the Massachusetts House of Representatives. In 2007, while in the state Legislature, she co-sponsored the buffer zone legislation now at issue. She compares the law with other buffer zone laws — in Massachusetts and many other states — enacted to protect people going to funerals, political conventions and polling places.

She contrasts the 35-foot buffer zone around the clinic with the "150-foot buffer zone around every polling place" in Massachusetts on Election Day. At polling places, even those handing out literature have to stay 150 feet from the entrance.

"There's even a buffer zone around the Supreme Court," Walz points out. In fact, the U.S. Supreme Court does ban all demonstrations, vigils, picketing and speech-making on its 252-by-98-foot plaza, allowing demonstrations only on the adjacent public sidewalk.

The court has justified its policy by saying the plaza is "not a traditional public forum," according to Catholic University law professor Mark Rienzi, who represents the anti-abortion demonstrators in Massachusetts. Whether or not one agrees with that distinction, he says, in contrast, "Public sidewalks are places that people are supposed to be free to exchange information and exchange ideas." He asserts that evidence here shows that the abortion-clinic buffer zone makes it "much more difficult" to do just that.

Moreover, if demonstrators are such a threat to people at the clinic, he asks, why were there no prosecutions in the seven years before this law took effect? Massachusetts then had a 6-foot floating buffer zone, a provision similar to the one in Colorado that was upheld in 2000.

'An Issue Of Safety'

Law enforcement authorities and clinic personnel paint a different picture. They say the situation outside the clinic was frequently chaotic, with anti-abortion and pro-abortion rights demonstrators often toe to toe at the entrance, a scene one volunteer who helped escort patients into the clinic likened to linebackers on the 1-yard line.

"On a day-to-day basis there was an issue of safety, of people trying to get in the clinic being approached" and "physically harassed," says Massachusetts Attorney General Martha Coakley. At clinics outside Boston, she says, demonstrators routinely stuck literature through car windows as they approached, thus endangering both those in the car and the demonstrators themselves.

Lawyer Rienzi counters that "violence and obstruction and intimidation and harassment are already illegal," and that "the only new thing this law gets is the peaceful speech."

Not so, asserts Planned Parenthood's Walz. The 35-foot buffer zone is a reasonable time, place and manner regulation of speech — akin to regulating how loud you can play music at night. "Nothing else in our 30-year history has worked," she adds.

Prosecuting people after they've violated criminal statutes doesn't solve anything, Walz says. "What you want to do," she says, "is create an environment where people can get health care when they need it, when they have an appointment, rather than have them leave because they're afraid or blocked from getting in the door, and then seeking a remedy." At that point, "they've been deprived of access to health care."

The Legal Questions

At the Supreme Court on Wednesday, there are essentially two questions:

First, does the Massachusetts buffer zone law go too far, or is it permissible under the court's 2000 ruling allowing some buffer zones?

Second, should the court reverse that 2000 decision entirely? The vote in that case was 6-to-3, with the majority ruling that in situations like those at abortion clinics, unwilling listeners have some right to be let alone.

The dissenters, however, were furious. Justice Antonin Scalia delivered a rare and blistering oral dissent when the opinion was announced. "Does the deck seem stacked?" he thundered. "You bet."

He went on to say that "our longstanding commitment to uninhibited, robust and wide-open debate is miraculously replaced by the power of the state to protect an unheard of right to be let alone on the public streets."

Scalia and his fellow dissenters are still on the court. But most of the majority justices from 2000 are gone — replaced in some cases by more conservative justices. Most important, Sandra Day O'Connor has retired and been replaced by George W. Bush appointee Samuel Alito, who has a history of being unsympathetic to abortion rights.

For now, though, outside the Boston Planned Parenthood clinic, the scene remains fairly constant. Eleanor McCullen is there every Tuesday and Wednesday, sometimes standing far outside the buffer zone line. When asked why, she replies: "I go where the Holy Spirit leads me."

We'll know by summer where the legal spirit leads the Supreme Court.

Nick Fountain contributed to this report.

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Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.