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Supreme Court skeptical of 'buffer zone' outside clinics providing abortions

Steven Senne / AP

Anti-abortion protester Eleanor McCullen of Boston, left, stands at the painted edge of a buffer zone outside a Planned Parenthood location in Boston in December.

A majority of Supreme Court justices appeared skeptical Wednesday of a Massachusetts law that establishes a 35-foot buffer zone to prevent protests outside clinics that provide abortions — a restriction the protesters say violates the First Amendment.

In an oral argument, some justices said they were concerned that the law restricts speech in a way that is not neutral among viewpoints: Clinic workers can talk to patients inside the buffer, while those who object to abortion cannot.

The justices also appeared to worry that the 35-foot zone is too big, and some voiced general concern with the concept of restricting speech on a public sidewalk.

The case was brought by a 77-year-old woman, Eleanor McCullen, who stakes out a position outside a yellow line painted on a Boston sidewalk and tries to persuade women headed for a clinic to reconsider.

McCullen wants the court to throw out its ruling in a 2000 case from Colorado. That ruling upheld a law that established a 100-foot buffer zone outside clinics and forbade protesters within that zone from coming closer than 8 feet from people to counsel or argue with them.

Lawyers for McCullen said in court papers that the Massachusetts law is an impermissible regulation of speech that “criminalizes even peaceful, consensual, non-obstructive conversation and leafleting.”

They also said that “calm, respectful, individualized offers of emotional and practical support” cannot be effectively communicated through a bullhorn from 35 feet away.

The painted lines are in place at three Planned Parenthood clinics in Massachusetts, in Boston, Springfield and Worcester. Under the law, patients, clinic staff and emergency medical services are allowed inside the 35-foot zone, as are people who are just walking down the sidewalk on their way somewhere else. 

“What Massachusetts is doing here is picking sides in one of the most divisive issues in our country today,” Carrie Severino of Judicial Crisis Network, a group that advocates judicial restraint, said before the hearing.

“They’re saying the abortion clinics’ representatives are free to speak but the sidewalk counselors are not.”

State officials say that patients and staff feel more comfortable entering the clinics since Massachusetts passed its law in 2007.

Before that, Massachusetts had a law more similar to Colorado’s, but Attorney General Martha Coakley told The Associated Press that it was confusing and difficult to enforce, so the state adopted its single 35-foot zone.

Montana also has a similar “buffer zone” law, and cities and courts have created them elsewhere.

Massachusetts has a history of violence at its clinics: In 1994, a gunman entered two clinics on the same street in a Boston suburb and opened fire, killing two receptionists and wounding five other people.

In the present day, “We see a lot of protesters actually threatening, intimidating women, doctors, administrative staff as they’re trying to get into the building,” Ilyse Hogue, president of NARAL Pro-Choice America, said before the hearing.

“It’s not that their messages can’t be seen and heard — but what it does do is protect the women and the administrative staff and the doctors from that kind of in-your-face harassment,” she said.

The vote on the 2000 case from Colorado was 6-3. Four of the six justices in the majority have since retired. Among the replacements is Chief Justice John Roberts, who has voted to restrict abortion rights has supported the rights of protesters generally.

The three dissenters in the Colorado case are still on the bench.

The Associated Press contributed to this report.