Abortion Clinic Buffer Zone Divides Justices
"Public sidewalks occupy a special position in First Amendment analysis," said Mark Rienzi, lawyer for Massachusetts abortion opponents who challenged the law.
Rienzi, a professor at Catholic University of America Columbus School of Law, said the buffer zone singles out anti-abortion speech for restriction, whether or not there is any real threat of obstruction at clinic entrances. "A statute that makes it illegal … to engage in peaceful, consensual conversation on a public sidewalk for fear of obstruction and congestion is not narrowly tailored," he told the court.
The use of other laws and injunctions barring obstruction would be adequate to take care of disruptions, Rienzi said, without imposing the broad buffer zone.
Sotomayor, Kagan and Breyer suggested that when governments find that those alternatives don't work, the First Amendment permits them to impose reasonable buffer zones. Rienzi replied, "Any law like that runs into a big First Amendment problem of even eliminating peaceful consensual conversation that doesn't disrupt anything."
Breyer repeatedly said that if a government holds hearings and determined in good faith that alternatives are ineffective, a buffer zone would be justified under the First Amendment.
"We're not legislators," Breyer said. "We can insist on a reasonable record. But how can we do more than that?"
Assistant Massachusetts Attorney General Jennifer Miller said to the court that the legislature had established that record, finding that previous, narrower measures did not stop harassment, obstruction or "swearing and screaming" outside clinics. "Experience showed that there had to be a certain amount of space around the facilities," she said.
But Kennedy said, "When you address one problem, you have a duty to protect speech that's lawful." It would be difficult, Kennedy said, to write a decision in the case finding that "there's no free speech right to quietly converse on an issue of public importance."
Gershengorn, arguing for the U.S. Department of Justice in support of Massachusetts, said, "The Massachusetts statute here is simply a 'place' regulation that does not ban speech, but instead effectively moves it from one part of a public forum to another."
Scalia objected that from a distance of 35 feet from an entrance, anti-abortion activists would not be able to determine which pedestrians are actually entering the clinic. Gershengorn replied that in fact, the protesters "get quite good at identifying who is going and is not going into the clinic." Besides, he said, the buffer zone only restricts access for "the last four or five seconds before they go in."