Alan Hoyle, who opposes abortion, prayed outside the Supreme Court in Washington on Wednesday.

Gabriella Demczuk • New York Times,

Supreme Court seems split on free speech case on abortion

  • Article by: Adam Liptak
  • New York Times
  • January 15, 2014 - 8:51 PM

- The Supreme Court appeared evenly divided Wednesday as it heard arguments in a First Amendment challenge to a Massachusetts law that created buffer zones around abortion clinics in the state.

But a significant factor was missing: Chief Justice John Roberts, who almost certainly holds the crucial vote, asked no questions.

The court seemed otherwise split along ideological lines, with questions from its four more liberal members suggesting that the 35-foot buffer zone created by the 2007 law was a valid response to decades of harassment and violence at abortion clinics in Massachusetts, including a shooting rampage at two facilities in 1994.

The court’s more conservative members questioned the need for the law and said it was a blunt and selective instrument.

“This is not a protest case,” Justice Antonin Scalia said. “It’s a counseling case.”

Intent discussed

The lead plaintiff, Eleanor McCullen, has said she seeks to engage in friendly conversations with women seeking abortions in an attempt to tell them that they have alternatives. She said the buffer zone frustrated her efforts and violated her First Amendment rights.

Justice Stephen Breyer said that only a general prohibition on entering the zone would work.

“It’s just tough to say whether they’re counseling somebody or screaming at somebody,” he said.

The justices debated whether and when buffer zones are permissible around funerals, slaughterhouses, fraternal lodges and the sites of labor disputes.

The justices and the case lawyers also tried out a host of analogies to give a sense of just how long 35 feet is, pointing to parts of the courtroom and people in it.

“I guess I’m just a little hung up on why you need so much space,” Justice Elena Kagan told Jennifer Grace Miller, an assistant state attorney general. Miller responded that the zone left ample opportunities for speech on other parts of the sidewalk near the clinics.

‘Buffer zone’ precedent

Mark Rienzi, a lawyer for McCullen, said the law was unconstitutional for at least two reasons. In limiting its application to abortion clinics, he said, the law effectively singled out one subject. And in allowing clinic employees to stay in the zone, it favored one side of the debate, he added.

“Public sidewalks occupy a special place in First Amendment analysis,” he said.

Justice Samuel Alito seemed to agree that the law made impermissible distinctions among speakers based on their point of view.

The Supreme Court upheld a similar law by a 6-to-3 vote in 2000 in Hill v. Colorado, with Scalia, Justice Clarence Thomas and Justice Anthony M. Kennedy dissenting. The court has four new members since then: Roberts, Alito, Kagan and Justice Sonia Sotomayor.

The 2000 decision upheld a Colorado law that established 100-foot buffer zones outside all health care facilities, not just abortion clinics. Within those zones, the law banned contact within 8 feet for protest or counseling without consent.

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