The U.S. Supreme Court has declared unconstitutional a Massachusetts law mandating a buffer zone around reproductive health care clinics that prevented anti-abortion protesters from getting within 35 feet of the clinic's entrance, saying that it violated the First Amendment right of pro-life activists to freely express themselves.
The justices voted unanimously to strike down the law, which they say restricts free speech too broadly by pushing protesters back from the facility's entrance and nearby sidewalks and stops them from being able to initiate what they call "sidewalk counseling" or conversations with women who are considering having an abortion.
"With respect to other means of communication, an individual confronted with an uncomfortable message can always turn the page, change the channel, or leave the Web site. Not so on public streets and sidewalks," writes (pdf) Chief Justice John G. Roberts in the majority opinion. "There, a listener often encounters speech he might otherwise tune out. In light of the First Amendment's purpose 'to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, this aspect of traditional public fora is a virtue, not a vice."
The ruling stems from a case filed by 77-year-old Eleanor McCullen, a grandmother who stands outside a Planned Parenthood clinic every Tuesday and Wednesday to convince women from having an abortion. McCullen said that being pushed back 35 feet away from the entrance of the clinic severely restricted her right to speak with the women because she wouldn't know if they were patients, workers or passers-by. She also said that she had already spent at least $50,000 from her own pocket helping women buy baby supplies and pay for health bills and had succeeded in dissuading hundreds of women from undergoing an abortion.
"The court recognized our First Amendment rights, and now I'll have a chance to speak to people one-on-one," McCullen said. "If someone isn't interested, that's fine. But I'd like to be there to help."
The court's ruling does not affect other buffer zone laws in 10 other locations spanning the country from Portland in Maine to San Francisco. The court also said that while a no-standing, no-talking zone of 35 feet from the clinic's entrance is too restrictive, the state of Massachusetts may impose smaller buffer zones but did not specify what size of spaces it deems constitutional.
The decision has left many legal experts scratching their heads. In 1994, the Supreme Court upheld a 36-foot buffer zone around abortion clinics in Florida following the shooting at a Brookline clinic that led to the death of two workers, although Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas dissented on the grounds that the buffer zone violated free speech.
The court also supported a similar 8-foot floating buffer zone around Colorado patients who did not wish to speak with the protesters. After repeated demonstrations at a Massachusetts clinic, the state adopted the Colorado law but later stretched the buffer zone out to a fixed 35-foot area around health facilities.
Pro-choice supporters say the court has basically removed one of the most effective measures to protect women going to the clinic from being harassed by anti-abortion protesters. Planned Parenthood League of Massachusetts president and owner of three of these clinics Martha Walz recalls that before the creation of the buffer zone, protesters could stand right in front of the doorway to block or yell at staff and patients who had to squeeze through the shoulders to enter.
Walz, a former legislator who was one of the principal figures responsible for the passage of the law, says abortion services will step up their efforts to ensure the safety and privacy of their patients, including hiring volunteers to escort patients in and out of the clinic.
"It was, to say the least, frightening," she says. "That is what is of such concern to us. The court is essentially saying that kind of behavior may resume."
