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At the Supreme Court today, the justices heard arguments in a case testing laws that establish buffer zones to protect patients and staff as they enter abortion clinics. In 2000, the court upheld an eight-foot zone that moves with those individuals as they approach a clinic. But the issue is back now before a more conservative court, and the chief justice appears to hold the outcome in his hands. NPR's legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: The case before the court comes from Massachusetts, where two people were shot and killed and five 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 to protect patients and staff. Anti-abortion activists challenged the law in court, contending it violated their right to free speech.
On the steps of the Supreme Court today was grandmother Eleanor McCullen, who for 13 years has stationed herself outside a Boston clinic twice a week trying to persuade women not to have abortions.
ELEANOR MCCULLEN: This is America, thank God. And we have First Amendment right, which means gently speaking to someone, offering hope, help and love. I should be able to do that.
TOTENBERG: But Marty Walz, who co-authored the Massachusetts law and now heads Planned Parenthood in the state, said that while Mrs. McCullen may be a soft-spoken counselor, many others are not.
MARTY WALZ: I experienced that firsthand when I was a state legislator and I saw what was happening at the health centers in 2007 under the old law, with someone inches away from my face, screaming at me at full volume in the entrance way to the Planned Parenthood health center. The current law, having everyone step back 35 feet from our doorway, is the only thing that's ever worked to maintain public safety.
TOTENBERG: Inside the Supreme Court, the questioning was fast and furious, with the justices apparently divided equally, and for the first time in memory, no questions from Chief Justice John Roberts. The court seemed divided even by the question of how far 35 feet is. Justice Breyer said it was from the bench to the front row of the public seat. No, said Justice Kagan, it would stretch to the back of the court room. Two car lengths, said Justice Sotomayor.
Representing those challenging the Massachusetts law was lawyer Mark Rienzi. He immediately faced a question from Justice Ginsburg. The problem the state faced, she said, was a considerable history of disturbances and entrance blocking. The state doesn't know in advance who are the well-behaved people and 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: It's hard to prosecute because you have to show intent to obstruct an 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: Supposing the state wanted to put a 35-foot buffer zone around a veterans' hospital entrance 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 asked 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 even part of the public sidewalk would violate the Constitution in any of these situations. Justice Scalia: This is a dead speech zone, right?
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 and that abortion opponents are still free to protest on the public sidewalk close to the clinics. Justice Scalia objected. This is not a protest case. If it was a protest, keeping them back 35 feet might not be so bad. But here, what they can't do is try to talk the women out of an abortion. It's a counseling case.
Justice Breyer: 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. It was like a goalie's crease at the entrance. That's the box in front of a hockey goal where players pile up.
Under the Constitution, she said, no one is guaranteed close, quiet conversations. Justice Kennedy: 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? A decision is expected in the case by summer. Nina Totenberg, NPR News, Washington.