Supreme Court Considers Legality Of Abortion Clinic Buffer Zones Do boundaries meant to protect patients and staff outside abortion clinics violate the free speech rights of anti-abortion protesters? In 2000, the Supreme Court said no in a case involving "floating" buffer zones. But the issue is back before the court — which now has more conservative justices.



The U.S. Supreme Court today hears arguments in a case testing the Constitutionality of buffer zones at abortion clinics. It was 14 years ago that the high court upheld floating buffer zones to protect patients and staff going in and out of these clinics from protesters. Now the issue is back before a new and more conservative court. NPR's legal affairs correspondent Nina Totenberg went to one of the clinics at the center of the case in Boston.

NINA TOTENBERG, BYLINE: We're standing outside the Boston Planned Parenthood health center, and there's this yellow circle, semicircle, around it, and the buffer zone essentially extends from the front door to the end of the curb right in front. And at each critical place on this circle, on this very snowy, cold, wintry morning, there is somebody trying to encourage people not to have an abortion.

ELEANOR MCCULLEN: Hi, good morning. Can I give you our information this morning?

UNIDENTIFIED WOMAN #2: Sorry. Probably on the way out. I'm just getting birth control. I'll get it on the way out.

MCCULLEN: We're available if you have any questions.

TOTENBERG: That's Operation Rescue's Eleanor McCullen, the lead plaintiff challenging the Massachusetts law that imposes a 35-foot buffer zone, about the length of a school bus, around the entrances to abortion clinics. McCullen looks like the stereotypical cheery grandmother.

MCCULLEN: I have pictures on my refrigerator of many babies.

TOTENBERG: She's out here every Tuesday and Wednesday on her mission to prevent women from having abortions.

MCCULLEN: I need them here and safe. Let's just talk a minute before you rush in. You rush in so quickly, and then you come out in tears.

TOTENBERG: But she says the buffer zone interferes with her mission and is a violation of her First Amendment rights.

MCCULLEN: It's America and I should be able to walk and talk gently, lovingly, anywhere, with anybody.

TOTENBERG: You seem to be able to do a fair amount of that despite the yellow line, yeah?

MCCULLEN: Fair amount, but guess what? Could do more.

TOTENBERG: Inside the clinic we meet nurse practitioner Teresa Roberts.

TERESA ROBERTS: The vast majority of what we do is primary care, contraception, cancer screenings, and people generally feel safe. The buffer zone is one of the things that has helped patients feel safe, I believe. Okay, let's go take a look.

TOTENBERG: She takes us past a security guard, metal detector and several layers of electronically keyed access doors. And when we get to an atrium, there's a stark reminder of the darkest days for Planned Parenthood in Boston: In 1994, when a gunman killed two clinic personnel and wounded five others people.

Nurse Roberts reads a plaque honoring those killed.

ROBERTS: The tree in this atrium honors the memory of Shannon Lowney(ph) and Leeann Nichols(ph), dedicated December 30, 1997. That was the third anniversary of their deaths.

TOTENBERG: Eventually, we end up at the office of CEO Marty Walz.

MARTY WALZ: Hi, Marty Walz.

TOTENBERG: This is a new job for her. In 2007, while in the state legislature, she co-sponsored the buffer zone legislation at issue in the Supreme Court today. She knows that in Massachusetts and many states there are buffer zone laws to protect people going to funerals, political conventions and polling places.

WALZ: In Massachusetts there's 150-foot buffer zone around every polling place in the state. There's even a buffer zone around the Supreme Court.

TOTENBERG: Indeed, the U.S. Supreme Court bans all demonstrations, vigils, picketing and speech-making on its 252-by-98 foot plaza, allowing demonstrations only on the adjacent public sidewalk.

MARK RIENZI: What the court has said is that that plaza is not a traditional public forum.

TOTENBERG: Lawyer Mark Rienzi represents the anti-abortion demonstrators in Massachusetts.

RIENZI: Public sidewalks are places that people are supposed to be free to exchange information and exchange ideas, and the evidence in this case shows that it is much more difficult to engage with women when you half to stand behind the line and either raise your voice to reach them or run around the line to try to catch up with them.

TOTENBERG: If demonstrators are such a threat to people at the clinic, he asks, how come there have been no criminal prosecutions for harassment or violence?

RIENZI: In a situation where over seven years you don't even have a conviction of somebody getting within six feet of somebody without their consent, that you don't have that big a problem.

MARTHA COAKLEY: But that begs the question, you see. The statute has been effective so there has been no need to do it.

TOTENBERG: That's Massachusetts Attorney General Martha Coakley explaining why there have been no prosecutions under this law or the previous law. She says that prior to the current law, the situation outside clinics was often unsafe.

COAKLEY: On a day-to-day basis there was an issue of safety, of people trying to get in the clinic being approached, harassed, physically harassed.

TOTENBERG: Lawyer Mark Rienzi sees the issue very differently.

RIENZI: Things like violence and obstruction and intimidation and harassment are already illegal. The only new thing that this law gets is the peaceful speech.

TOTENBERG: Not so, asserts Planned Parenthood's Walz. The 35-foot buffer zone is a reasonable time, place and manner regulation of speech, akin to regulating how loud you can play music at night.

WALZ: Nothing else in our 30-year history has worked.

TOTENBERG: Prosecuting people after they've violated criminal statutes doesn't solve anything, she says, because it happens after the fact.

WALZ: What you want to do is create an environment where people can get health care when they need it, when they have an appointment. Rather than have them leave because they're afraid or they're blocked from getting in the door, and then seeking a remedy.

TOTENBERG: At the Supreme Court today there will essentially be two questions. First, does the Massachusetts buffer law go too far, or is it permissible under the court's 2000 ruling allowing some buffer zones? Second is whether the court should reverse that 2000 decision entirely? The vote in that case was 6-3, with the court ruling that in situations like those at abortion clinics, unwilling listeners have some right to be let alone.

The dissenters, however, were furious.

JUSTICE ANTONIN SCALIA: Does the deck seem stacked? You bet.

TOTENBERG: Justice Antonin Scalia.

SCALIA: Our longstanding commitment to uninhibited, robust and wide-open debate is miraculously replaced by the power of the state to protect an unheard of right to be let alone on the public streets. I dissent.

TOTENBERG: Scalia and his fellow dissenters are still on the court. But most of the majority justices from 2000 are gone, replaced in some cases by more conservative justices. For now, though, outside the Boston Planned Parenthood clinic the scene remains fairly constant. Even we were caught up in the buffer zone when we stopped to talk to protester Bill Cotter (ph) .

Do you feel very constrained by these yellow lines?


TOTENBERG: And as I started to ask my next question with my feet squarely inside the yellow line, a security guard came out. Hi.

UNIDENTIFIED MAN: How are you? You just have to be outside the line when you're doing this. Okay?

TOTENBERG: Oh, okay. All right.

UNIDENTIFIED MAN: All right? Thank you.

TOTENBERG: Not that this is an experience unusual for any reporter in Washington. We get moved around all the time. Indeed, even lead plaintiff Eleanor McCullen often stands far outside the buffer zone. You know, Eleanor, I noticed something. There is this yellow line, but you're well beyond it. You're another 12, 15 feet beyond it standing here.

MCCULLEN: Well, that's true.

TOTENBERG: And why is that?

MCCULLEN: Well, I move around. I go where the Holy Spirit leads me.

TOTENBERG: Where the legal spirit leads the Supreme Court, we'll know by summer. Nina Totenberg, NPR News, Washington.

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