The U.S. Supreme Court heard arguments on Wednesday in a case testing laws that establish buffer zones to protect patients and staff going into abortion clinics. In 2000, the court upheld 8-foot buffer zones that move with individuals as they walk into clinics. But now the issue is back before a more conservative court, and the conservative chief justice appears to hold the outcome in his hands.
The case before the court comes from Massachusetts, where two people were shot and killed and five others were wounded at abortion clinics in 1994. After first trying a moving, "no approach" buffer zone, the state in 2007 adopted a fixed, stationary 35-foot buffer zone outside clinics.
Anti-abortion activists challenged the law in court contending it violated their right to free speech. On the steps of the Supreme Court Wednesday was grandmother Eleanor McCullen, who for 13 years has stationed herself outside the Boston clinic twice a week trying to persuade women not to have abortions.
"This is America!" she said. "Thank God. And we have First Amendment rights, which means gently speaking to someone offering hope, help and love. I should be able to do that."
But Marty Walz, who co-authored the Massachusetts law and now heads Planned Parenthood in the state, said that while McCullen may be a soft-spoken counselor, many others are not.
Walz said she had experienced "firsthand" what it was like under the old law with people "inches away from my face screaming at me at full volume in the entranceway to the Planned Parenthood health center." The current law, she said, "having everyone step back 35 feet from our doorway, is only thing that's ever worked to maintain public safety."
Inside the Supreme Court, the questioning was fast and furious, with the justices apparently divided equally, and for the first time in memory, Chief Justice John Roberts asking no questions. The chief justice's silence seemed to indicate that he likely will be the deciding vote in the case.
The justices didn't even seem to agree on precisely how far 35 feet is. Justice Stephen Breyer said it was from the bench to the front row of public seats. No, said Justice Elena Kagan. It would stretch to the back of the courtroom. Less, said Justice Sonia Sotomayor two car lengths.
In fact, at the Boston clinic, because the entrance is recessed, the zone is 23 feet or as counsel for the government put it, the distance from the 3-point line to the rim on a basketball court.
Representing those challenging the Massachusetts law was lawyer Mark Rienzi, who argued that the state law violates the First Amendment by making it illegal to engage in consensual conversation on a public sidewalk.
Justice Ruth Bader Ginsburg interrupted: The problem the state faced "was a considerable history of disturbances and blocking the entrance, and it doesn't know in advance who are the well-behaved people and who are the people who won't behave well."
Lawyer Rienzi replied that there are other ways to deal with that problem, such as prosecuting people for obstructing the entrance.
Justice Kagan countered: "It's hard to prosecute because you have to show intent [to obstruct the entrance], and there's a lot of obstruction and interference that goes on naturally" when lots of people are gathered at the entrance.
The justices at this point began posing a series of difficult hypotheticals. Justice Breyer asked what would happen if the state wanted to put a 35-foot buffer zone from the entrance of a veteran's hospital to protect patients from anti-war protesters. Justice Sotomayor noted that just three years ago the Supreme Court itself said buffer zones would be OK to protect people attending funerals. Justice Kagan wanted to know about a buffer zone that would bar animal rights protesters from interfering with employees and suppliers at the entrance of a slaughterhouse. My intuition, she said, is "what's wrong with that? Just have everybody take a step back."
But lawyer Rienzi stuck to his guns, maintaining buffer zones to prevent speech on a public sidewalk would violate the Constitution in any of those situations.
Justice Kennedy then said pointedly, "Suppose it was a given that the other methods you suggest prosecution for example simply do not work."
Rienzi acknowledged that if there were no other alternatives to restricting the behavior, "then the government might be able to show it has a compelling reason for the buffer zone." But, he added, that is not the case here.
Justice Ginsburg questioned the practical implications of the law's application. "How much speech is restricted with a 35-foot buffer zone?" she asked.
Rienzi estimated that "it takes seven to 10 seconds to walk through the zone." To that, Justice Ginsburg replied, "There's not ... much conversation that's going persuade people in seven to 10 seconds."
Justice Kagan wanted to know if a smaller buffer zone would be more acceptable. "If the buffer zone were 12 feet, would that be alright?" Rienzi didn't give in. "It would still be a problem," he said.
Justice Antonin Scalia jumped in: "This is a dead speech zone, right?" Rienzi agreed it is.
Defending the Massachusetts buffer-zone law was Assistant State Attorney General Jennifer Grace Miller. She told the justices that the buffer zone is a small area right outside the abortion clinics, and abortion opponents are still free to protest in public spaces close to the clinics.
Justice Scalia objected. "This is not a protest case," he said. "If it was a protest, keeping them back 35 feet might not be so bad. But what they can't do is try to talk the woman out of the abortion. It's a counseling case."
Justice Breyer followed up: "Did the evidence show that what was involved was calm, conversations" and counseling?
"No," replied Miller. The evidence showed pro-choice advocates "swearing and screaming at pro-life advocates." There was "pushing and shoving and jockeying for position." Miller said it was like "a goalie's crease" at the entrance. That's the box in front of the goalie in a hockey game where players pile up.
Justice Kennedy posed another hypothetical: "Well, assume that an elderly woman who had previously been successful in discouraging 100 abortions, now was unable to talk to even one woman after this law went into effect. Does that have any bearing?"
"There is no guarantee ...to close, quiet conversations," replied Miller.
Justice Kennedy leaned forward, incredulous: "Do you want me to write an opinion and say there's no free speech right to quietly converse on an issue of public importance?"
Last to argue was Deputy Solicitor General Ian Gershengorn, representing the federal government. He argued that the court has never held that individuals are entitled to choose absolutely the best method of communication.
Justice Scalia pressed him on the point: "What's the alternative here standing 35 feet away and yelling?"
"The alternative," Gershengorn said, "is that on the entire rest of the sidewalk, quiet counseling, leafleting and conversation is permitted."
Justice Kennedy asked why the federal statute barring obstruction would not suffice in this situation.
Gershengorn responded that the federal law requires proof of intentional behavior, whereas the concern in Massachusetts was congestion at entrances, leading at times to incendiary confrontations, car accidents, etc.
Noting that the state also has a buffer-zone law to protect delegates at political conventions, Gershengorn said that if you could defeat the abortion clinic buffer-zone law here, then you could defeat the convention buffer zone by saying all protesters wanted to do was to have quiet conversations with delegates.
"What would a legislature have to find to justify a buffer zone like this?" Justice Alito asked.
In other circumstances slaughterhouses, circuses, conventions what they have found is that there "is a massing of people that prevents the orderly ingress and egress to and from the facilities," said Gershengorn. Similarly, he said, in this case, "the purpose was to clear the entrances."
A decision in the case is expected by summer.